People v. Battle

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS LEE BATTLE,
Defendant and Appellant.

S119296

San Bernardino County Superior Court
FVI012605

July 1, 2021

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

Justice Liu filed a dissenting opinion.
 PEOPLE v. BATTLE
S119296

Opinion of the Court by Cuéllar, J.

Defendant Thomas Lee Battle was convicted of
kidnapping and killing Shirley and Andrew Demko after
burglarizing and robbing their home. The jury returned a death
verdict, and the trial court sentenced Battle to death. This
appeal is automatic. (Pen. Code, § 1239, subd. (b).)1 Battle
contends that the trial court made several errors during the
guilt and penalty phases of his trial. We find no error and affirm
the trial court judgment.
I. BACKGROUND
In November 2001, the San Bernardino District Attorney
filed an information charging Battle with two counts of murder
(§ 187, subd. (a)), one count of first degree residential burglary
(§ 459), one count of first degree residential robbery (§ 211), and
two counts of kidnapping (§ 207). The information also alleged
the following: All the offenses were serious felonies (§ 1192.7,
subd. (c)) and violent felonies (§ 667.5, subd. (c)); during the
commission and attempted commission of these offenses Battle
personally used a knife, a deadly and dangerous weapon (§
12022, subd. (b)(1)), causing the offenses to be serious felonies (§
1192.7, subd. (c)(23)); in 1995 Battle suffered a prior conviction
for burglary (§ 459), a serious or violent felony (§§ 667, subd. (b),

1 All statutory references are to the Penal Code unless
otherwise noted.

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1170.12); and in 1997 he suffered a prior conviction for forgery
(§ 470) that resulted in a prison term (§ 667.5, subd. (b)). The
information also alleged the following special circumstances:
Battle committed the murders during the commission of
robbery, burglary, and kidnappings (§ 190.2, subd. (a)(17)(A),
(G), (M)); and Battle committed multiple murders (§ 190). The
jury found Battle guilty on all counts and found true all the
special allegations and special circumstances. (The defense and
prosecution agreed to stipulate that the prior offense allegations
were true.) The jury returned a death verdict. The trial court
sentenced Battle to death on the murder counts, to a
determinate term for the remaining counts and accompanying
enhancements (all of which were ordered to run consecutive to
the sentence on the kidnapping count related to the kidnapping
of Mr. Demko), and it ordered Battle to pay $10,000 in victim
restitution.
A. Guilt Phase
1. The Prosecution’s Case
The victims were Andrew Demko and Shirley Demko.
They were 77 and 72 years old respectively at the time of their
deaths. They had been married for 22 years. Both used a cane
and walker; Andrew’s hearing was almost gone. Andrew had
two adult children from a previous marriage, Denise Goodman
and Richard Demko. On or about November 14, 2000, the
mailperson noticed that the Demkos had not collected the
previous day’s mail. As the week went on, mail continued to pile
up uncollected. Because Thanksgiving was fast approaching
and Denise had not heard from Andrew or Shirley, she tried to
call them several times but received no response. She called the
police to ask them to check on her parents. The police reported

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Opinion of the Court by Cuéllar, J.

that the Demkos’ car wasn’t there and that their dogs were
locked in a room, but that everything looked fine. But her
parents’ neighbor told her that day that he had noticed
newspapers stacking up in the Demkos’ yard. Concerned,
Denise called the police back and once again asked them for
another check on her parents.
Meanwhile, on November 18, a man and his son were
hunting in the San Bernardino desert when they found a man
lying dead on the ground. Police officers with the San
Bernardino County Sheriff’s Office responded to the scene and,
with the assistance of a highway patrol aircraft, they also found
a dead woman about 200 yards away from the man. The bodies
were later identified as Andrew and Shirley Demko. (One of the
officers who was present at the desert heard radio traffic
concerning the second welfare check at the Demko residence,
and he thought there might be a connection between that and
the bodies found. He then went to the residence, and he
recognized a picture on the wall of Mr. Demko as the same man
he had seen dead in the desert.)
Mr. Demko was found lying face up. He was wearing blue
pajamas, a blue bathrobe, and a single blue slipper. There was
blood on the chest area of his shirt. His other slipper was found
nearby on disheveled ground that showed signs of scuffing and
dragging. An autopsy revealed he died from strangulation and
a stab wound to the neck. The stab wound was four and a half
inches deep on the right side of the neck, and it was consistent
with a wound from a single-edged knife. He had abrasions and
bruising on his forehead, which were caused by blunt force, and
on his chin and neck, which were caused by strangulation. He
also had injuries to his hands, wrists, arms, knees, and feet.
Some of these injuries were consistent with defensive wounds,

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Opinion of the Court by Cuéllar, J.

some with his having been bound, and others with his having
been dragged.
Mrs. Demko was found lying face down. She was also
wearing pajamas, which had blood on them. Much of the upper
half of her body had been eaten by wild animals, so only a small
number of internal organs remained. The autopsy revealed that
her cause of death was homicidal violence of undetermined
etiology. Because significant portions of her body were missing,
the specific mechanism of death could not be determined. Her
hands were duct-taped together, and they had signs of blunt-
force trauma and cuts. Injuries to her feet and ankles were
consistent with her having been restrained with bindings or zip
ties. Police later found zip ties and bloodstained duct tape in the
area.
After being contacted by the police, Denise and Richard
accompanied officers to the Demkos’ home. The TV, VCR, and
stereo speakers were missing. On the dining room table, they
found a cup of coffee, a burned cigarette, reading glasses, and an
open newspaper dated November 13. Denise explained that
ever since she was a child, her father would wake up early each
morning and read the paper while drinking coffee. Police also
found six unwrapped Los Angeles Times newspapers (dated
November 14–19) and one Desert Times newspaper (dated
November 14) stacked in a corner of the dining room. In the
kitchen trash can, police found two FedEx delivery slips. One
was dated November 21 — three days after the Demkos’ bodies
were found — which indicated that someone had been in the
house after the murders. Finally, the Demkos’ car, a blue
Mercury Sable, was still missing.

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Opinion of the Court by Cuéllar, J.

On the evening of November 25, police pulled over a
woman driving the Demkos’ car. A later inspection of the car
revealed blood stains on the inside of the trunk lid, as well as
items including the Demkos’ credit cards and boxes of checks.
The woman told police that she had borrowed the car from
Battle, who was a close friend of her roommate, Jenica McCune,
and who was at their apartment. According to McCune, she had
not been in contact with Battle for about a year before he
unexpectedly showed up to her apartment on around November
13, or perhaps November 15 or 16. She said he had a blue Ford
Taurus (which an insurance agent testified looked like a
Mercury Sable), and that he told her he had bought the car but
had not yet registered it.
Police went to McCune’s apartment and arrested Battle.
Detectives Michael Gilliam and Derek Pacifico took Battle to the
police station and interrogated him in the early morning hours
of November 26. In total, Battle had four taped interviews with
officers: two with Detectives Gilliam and Pacifico, on November
26 and the morning of November 27; a subsequent one with
special investigator Robert Heard as part of a polygraph
examination on November 27; and a final one on November 27,
again with Detectives Gilliam and Pacifico. Battle was advised
of and waived his Miranda rights at the beginning of the
November 26 interview and again at the beginning of the first
interview on November 27. Over the course of the four
interviews, Battle told several different versions of events
regarding his involvement in the Demkos’ murder. At trial, the
officers testified about, and the prosecution played redacted
audiotapes of, Battle’s custodial statements. The recordings
were admitted into evidence. The transcripts of the recordings
the jury heard were given to the jury for reference and admitted

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into evidence with the understanding that they would be sent
back to the jury room only if the jury requested them.
In the first interview, beginning at 1:13 a.m. on November
26, Detective Gilliam informed Battle that he wanted to talk
about the car that Battle had lent to McCune’s roommate.
Battle said that his friend Neal2 had lent him the car when they
ran into each other and Neal heard that he had been laid off and
didn’t have transportation. Battle borrowed the car several
times prior to being arrested. Neal apparently showed Battle
some boxes in the car’s trunk, which contained checks, credit
cards, and ID cards with male and female names. He asked if
Battle wanted to make some money, but Battle declined and
explained he was trying to “fly straight.” Battle knew Neal was
doing “some real foul things.” He also told officers that “Left
Eye,” a woman he had not known for very long, had asked him
to store a TV and VCR for her while she moved. Battle said he
stored the TV and VCR at his home for a couple of days and then
returned them to her. (Battle was living at the time in the
Christian Living Home on Rancherias Road, less than two miles
from the Demkos. The home was a group residence primarily
for parolees, run by a Christian outreach group.)
The officers told Battle that the owners of the car Battle
had been driving had been found dead in the desert, their home
had been broken into and their TV and VCR were missing, and
someone knew Battle had the car on November 13, the day the

2 The name “Neal” is spelled in two ways in the record (also
as “Neil”). We adopt the version used by the parties, who have
chosen the spelling that first appears in the interrogation
transcript.

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owners went missing. Battle denied involvement and said he
didn’t kill anyone. He said he didn’t know if Neal and Neal’s
friends were involved, but he knew another person in his house,
Perry Washington, was involved “[w]ith the credit cards and
stuff.” He also said Washington asked him if he wanted to make
some quick cash by pawning a TV, VCR, and speakers. Since he
was already pawning some of his own possessions, including his
sword collection, he picked up the TV, VCR, and speakers from
Neal on November 17 or 18 and pawned the TV and VCR at the
Bear Valley Pawn Shop. (He did not pawn the speakers because
they were needed for an upcoming church service.) He insisted
that the only thing he was asked to do, and only thing he did,
was pawn the items.
At this point in the first interview, the tape recording of
the interrogation stopped, likely because of a technical failure.
When this interview resumed about 90 minutes later, Battle’s
version of events changed dramatically. He told officers that he
and four others — Neal, Left Eye, Neal’s brother, and a man
named Steve — had for months planned to break into the
Demkos’ home, steal everything, and take over their credit.
Battle had been told the people in the house would be away on
vacation. But he saw them at home when he walked by on the
afternoon before the crimes, and so he assumed they’d be home
during the burglary.
According to Battle, the group met up shortly after 4:00
a.m. the next day, and they arrived at the Demkos’ home when
it was still dark outside. Neal’s brother entered the front door
and Mr. Demko screamed. Steve struggled with and tried to
choke Mr. Demko. Neal’s brother tackled Mrs. Demko, who was
saying she was unarmed and helpless. Battle described to
officers that Mr. Demko was wearing a dark blue bathrobe and

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light blue pajamas. As he recounted, his job was to go to each
room and take valuables, which he did. While in the bedroom,
he could hear Mrs. Demko saying, “don’t hurt us, just take what
you want . . . we don’t have anything, but whatever you see just
take and please, you know, don’t hurt us.” When he left the
bedroom, the couple was not in the house and he didn’t see them
being tied up. But he heard them being tied up. The group left
the house in the Demkos’ car as the sun was coming up. Left
Eye was driving. Battle knew the Demkos were in the trunk
because he heard pounding coming from there. At some point,
Battle became nauseated. He asked that they stop the car, and
upon getting out he started throwing up. The others called him
names and Left Eye tried to force him to get up, but he could not
move. The group left him on the side of the road. Battle had an
idea about what the group was going to do with the Demkos.
The group returned in less than an hour, at which point Battle
started throwing up again. The others once again ridiculed him
and drove off without him. Battle eventually returned home on
his own. Later that day, he saw Neal, who apologized for calling
him names and offered him use of the Demkos’ car, credit cards,
and checks. Neal told him that they “ain’t around no more to
report [the car] stolen so you can hold onto it for a while.” From
this comment, Battle understood the couple was dead. Around
two nights later, he went back to the Demkos’ home and took
their TV, VCR, boom box, and speakers, and he then pawned the
first three items. When he went to the house, he took a FedEx
notice off the front door. Either on this trip to the house, or
during another visit, he moved newspapers from the front of the
house to the corner of the patio walkway.
Battle’s story remained the same during his second
interview, which lasted less than 25 minutes on the morning of

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Opinion of the Court by Cuéllar, J.

November 27. He told Detectives Gilliam and Pacifico further
details about the locations of everyone in the group when they
approached the Demkos’ home and how he knew everyone in the
group. And he identified photographs of some of the
participants.
The detectives then took Battle to investigator Heard for
a polygraph examination. The pretest interview for the
examination, the examination itself, and the postexamination
interview took between three and three and a half hours. All
references to a polygraph examination were redacted at trial.
The prosecution presented the November 27 pretest interview,
polygraph examination, and postexamination interview by
investigator Heard as simply another interrogation. During the
pretest interview, Battle initially told investigator Heard a
version of the crimes that was similar to what he had told
Detectives Gilliam and Pacifico. He initially said he didn’t know
of the full extent of the burglary plan, including whether there
was a plan to kill the Demkos. But he eventually admitted that
he knew back in August that the plan was to kill the couple:
Steve was to kill Mr. Demko, and Neal’s brother was to kill Mrs.
Demko. He maintained, however, that he got out of the car
before Neal and the others drove the Demkos to the desert, that
the Demkos were still alive when he got out of the car, and that
he wasn’t present at the murder scene.
Based on the pretest interview, investigator Heard then
began the polygraph examination itself. He asked Battle
various questions about the details of the crimes, including
whether Battle was present when the Demkos were killed and
whether Battle killed them himself. Battle denied both. When
investigator Heard told Battle that, based on the polygraph test
results, he knew Battle was lying about not being present at the

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killings, Battle again changed his story. He admitted that he
was present when the Demkos were killed, but that he was
brought along at gunpoint and Steve killed the couple. Battle
explained that he tried to get out of the car after the group left
the Demkos’ home, but that Steve pulled a gun on him and
threatened to hurt his godson, Marquis. As the group got to the
desert, Steve pulled Mrs. Demko from the trunk, and he and
Neal’s brother cut the zip ties off her ankles and wrists and then
duct-taped her mouth, and also potentially her arms and legs.
According to Battle, the group left Mrs. Demko with Steve while
the rest of them drove further into the desert. He did not know
how Mrs. Demko died, but he saw Steve running back toward
their car with a bloody knife. He also couldn’t say how exactly
Mr. Demko died. But he last saw Mr. Demko with Steve, who
still had the knife and had choked Mr. Demko while his ankles
and wrists were bound with zip ties. Everyone eventually ran
in different directions to throw the zip ties and duct tape around
the desert. After the crimes, Washington apparently took some
of the Demkos’ credit cards and knew they were stolen.
Investigator Heard wasn’t satisfied with Battle’s account,
and he accused Battle of having killed the Demkos himself.
Battle then admitted to stabbing them. He said he took the zip
ties off the Demkos and duct-taped them both. Steve choked Mr.
Demko until he was unconscious or dead, and then handed
Battle a knife. Steve held a gun to Battle’s back and threatened
to hurt Marquis, so Battle stabbed Mr. Demko on the left side of
his neck. Steve and Neal’s brother also forced Battle to stab
Mrs. Demko in the back. Battle did not think he killed either
victim, because he believed Mr. Demko was already dead when
he stabbed him and Mrs. Demko was still alive after being
stabbed.

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Opinion of the Court by Cuéllar, J.

During his final interview, an approximately four-hour
interrogation that began almost immediately after the interview
with investigator Heard ended, Battle first told Detectives
Gilliam and Pacifico roughly the same version of events as he
had earlier told investigator Heard. But the officers doubted
aspects of his story. Detective Gilliam pointed out that it
seemed odd that Battle ended up with most of the Demkos’
property if, by his account, he was only a minor player in the
five-person operation. He also told Battle that Left Eye could
not have participated in the crimes because she had been
arrested and jailed on the night of November 12, and he and
Detective Pacifico questioned Battle about how only Battle’s
footprints were found at the scene of the murders; but neither of
these statements were actually true.
Battle then changed his story once again. He claimed he
never went out to the desert, and that he had lied to protect his
friend, Washington. In this new version of events, he stated that
he alone went to the Demkos’ home after spontaneously deciding
to burglarize it and pawn off some of their possessions. He
explained that he had just been fired from his job and needed
money for rent and other bills. He didn’t think anyone would be
at the home, and that if they were, they would be asleep. When
he entered the home through the unlocked back door, he was
surprised by Mr. Demko and got scared. So, he tied the couple
up with a rope from the garage, fled the home without taking
any property, and returned to the Christian Living Home, where
he told Washington what had happened. Washington told
Battle to take off his clothes, which he would destroy for him.
Battle then showered; when he got back to his room,
Washington was gone. But Washington returned later that
morning. He told Battle that he had used zip ties and duct tape

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Opinion of the Court by Cuéllar, J.

to bind the Demkos, taken them to the desert, stabbed Mrs.
Demko in the back and the neck, and choked and stabbed Mr.
Demko in the neck. Washington had, among other things, the
couple’s driver’s licenses, and he said their credit cards and
checks were in their car. Washington said Battle could drive the
car because the couple would not be found. Battle said he went
back to the Demkos’ house at some point for their TV and VCR,
and on another occasion he drove to the desert area but turned
back. He said he knew nearly all the details about the desert
crime scene based on what Washington had told him.
The detectives doubted Battle’s newest version of events.
For example, they both pressed the fact that Battle knew too
much about the murders not to have been present. At this point,
Battle changed his story one final time. His final version of
events diverged from his prior account at the point when he
returned home and told Washington what had happened. He
still claimed he initially went to the Demkos’ house alone
(though now he stated he had brought zip ties with him and used
them to tie up the couple). But now Battle claimed that when
he returned home, Washington brought Battle back to the
Demko residence. The two men took the couple’s TV and VCR,
as well as other items. Washington then told Battle to help him
pick up the couple, and Battle put Mrs. Demko into the trunk of
the couple’s car. When he asked Washington what they were
doing, Washington pulled a gun on him and threatened to kill
Battle’s godson. Battle then put Mr. Demko in the trunk. Mrs.
Demko asked if they were going to kill her, and Battle said they
were not. Washington directed Battle to drive to the desert, and,
once they arrived, he told Battle to get Mrs. Demko out of the
trunk. Washington kept the gun on Battle and told him to kill
the couple. At Washington’s direction, Battle duct-taped Mrs.

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Opinion of the Court by Cuéllar, J.

Demko’s mouth (though he did so loosely), her arms behind her
back, and her feet. She said, “I thought you wasn’t gonna kill
us,” and Battle started crying. Washington said, “come on T,
your son’s what, counting on you, don’t fuck it up.”
Battle stabbed Mrs. Demko in the back and the neck.
When they drove away, she was still alive. Battle then exited
the car again and got Mr. Demko out of the trunk. Washington
told Battle, “just remember about your boy and worry about
what I tell you to do now” and directed him to choke Mr. Demko.
Battle did so, and then on Washington’s orders, he stabbed Mr.
Demko in the neck.
Despite all the variations and apparent lies in Battle’s
different accounts, the prosecution argued that the details he
recounted across his custodial statements matched other
evidence of how the crimes took place. According to the
prosecution, Battle accurately described the location of the
Demkos’ home, details of its interior layout, and items that the
Demkos possessed there. He also said that when he arrived at
the home in the early morning, Mr. Demko was sitting at the
kitchen table, which was consistent with Denise’s description of
her father’s routine, and with the open newspaper, reading
glasses, and coffee found at the kitchen table. He correctly
noted Mr. Demko was hard of hearing. He admitted that he
returned to the Demkos’ home at least once and moved a FedEx
slip from the front of their home, which was consistent with the
slips found in a trash can in the home. And the prosecution
argued that key details Battle gave about the killings matched
evidence, including the autopsy and forensic reports, in at least
five ways: As Battle described, Mr. Demko was wearing blue
pajamas and a darker blue robe, and Mrs. Demko was also
wearing pajamas and zebra-print slippers. His statements that

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the Demkos were bound with zip ties and duct tape were
consistent with the abrasions on their bodies and the evidence
of both restraints found in the desert. His statements that the
Demkos were wounded and shoved inside the trunk of their car
were consistent with the blood found on the lid of the trunk. He
accurately described multiple details about the route to the
desert. And the autopsy findings on the Demkos’ causes of death
corroborated Battle’s particular description of how Mr. Demko
was strangled and stabbed with a knife.
In addition to the custodial statements, the prosecution
presented testimony from witnesses that corroborated the
statements and also linked Battle to the crimes.
Matthew Hunter, a friend of Battle’s from the Christian
Living Home, testified that sometime before November, Battle
told him he was going to acquire a car and that the people “he
got the car from . . . would come up missing” in the desert.
Battle said he could bury a body in the desert, and nobody would
ever find it.
According to Neal, whose real name was Anthony Bennett,
Battle said he could get cars “real cheap.”
McCune testified that Battle called her on the day of his
arraignment, and she recounted their conversation. He told her
that the crime was a robbery that went bad. He, Washington,
and some other guys broke into a house, and when an old man
appeared in the hallway, Battle got scared and turned to leave.
But, as Battle told McCune, Washington pulled a gun on him
and said, “We’re not gonna get out of this now, they’ve seen us.
We’re parolees, we’ll have to pay for this.” Washington
mentioned he was a three-striker. Washington said he would
kill Battle’s nieces and nephews (an apparent reference to

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McCune’s children) and hurt Marquis if Battle didn’t do as he
was told. Washington then had Battle tie up the elderly couple,
put them in the trunk, and drive to the desert; Washington
apparently sat behind Battle in the car and pointed a gun at
Battle’s head. Battle didn’t tell McCune what happened to the
people. And she didn’t remember Battle specifically mentioning
any particular people besides Washington being involved.
William Kryger technically shared a room with Battle at
the Christian Living Home but didn’t sleep in the room. Kryger
testified that he saw Battle in the living room sometime around
November 16 or 17, between 12:00 a.m. and 1:00 a.m. Battle
was wearing a black sweatsuit and holding silver duct tape and
zip ties. When Kryger asked Battle what he was doing, Battle
responded, “Don’t worry about it,” and left. The next morning
or the morning after that, Kryger saw Battle bringing cleaning
supplies, video tapes, and a big TV into their bedroom. He
assumed these items were being unloaded from a car Battle had
recently acquired. Kryger’s description of the car matched the
Demkos’ car. Kryger also testified he saw Washington removing
items from the car, but he admitted that he previously had said
Washington was at his girlfriend’s home at the time.
The prosecution also introduced other testimony about
physical evidence that tied Battle to the crimes. First, the day
after Battle’s arrest, detectives searched the room Battle shared
with Kryger. They found, among other things, a Nordic Track
box and accompanying VCR cassette in Mrs. Demko’s name, and
a Capital One credit card sheet, also in her name, hidden under
Kryger’s bed. They also found two stereo speakers with
dimensions matching the indentations in the carpet of the
Demkos’ home. A few days later, detectives searched
Washington’s room at the Christian Living Home. They didn’t

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find any items obviously connected to the Demkos. But in the
patio area outside of the home, they found a pillowcase
containing the Demkos’ checks, credit cards, and wallets.
Additionally, officers recovered the Demkos’ TV, VCR, and
videos from Bear Valley Pawn. The pawn slips for the videos,
dated November 15, and the TV and VCR, dated November 17,
had Battle’s name and fingerprints on them. McCune
discovered additional evidence underneath her bathroom sink
as she was packing to move: most critically, a calling card and
gas cards, all with the name “Demko” on them.
Finally, anticipating Battle’s third party culpability
defense, the prosecution presented evidence that Washington
was at work at the time Battle said the killings took place.
2. The Defense’s Case
The defense argued that Perry Washington killed the
Demkos, that Battle had no involvement in the murders, and
that Battle became involved in this situation only because he
took, used, and got rid of the Demkos’ property after their
deaths. Defense counsel argued that Battle made up the
confessions to officers because Battle knew about the murders
but was afraid of and wanted to protect Washington. Battle
feared Washington would kill Marquis. The defense presented
a range of evidence to support its theory.
On cross-examination during the prosecution’s case-in-
chief, the defense elicited testimony from Kryger about
Washington’s involvement in a residential burglary a little more
than a week before the Demkos’ murder. According to Kryger,
he was with Washington when Washington took a man home
from the hospital as part of an illegal taxi service, and then hid
in the man’s home and stole his property, including a TV and

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VCR. Kryger picked up Washington after the burglary, and
Washington brought the TV and VCR back home.
The defense also introduced evidence that Washington
had a motive to kill the Demkos after burglarizing their home
and committing robbery: He had prior convictions. The defense
sought and was granted judicial notice of Washington’s two
prior felony convictions for robbery. A lawyer testified that,
under California’s “Three Strikes” law, Washington would have
faced a sentence of 25 years to life in prison if caught and
convicted of another felony for the burglary of the Demkos’
home.
Moreover, the defense elicited testimony from Battle’s
friends and acquaintances that Battle had peculiar interactions
with Washington around the time of the murders. On cross-
examination, McCune testified that on the day of Battle’s arrest,
Washington appeared to have called Battle about 15 times. She
said it seemed like Washington was directing Battle’s behavior,
and that Battle was afraid. Marquis’s mother testified that
whenever Battle was in the Demkos’ car, Washington was also
there. She also testified that Battle acted like a father to
Marquis and would take any threat against him very seriously.
The reverend who ran the Christian Living Home testified that
Battle seemed withdrawn and preoccupied during the two
weeks before being arrested. He also noticed two suspicious
things relating to Washington during this time period. First, a
couple of weeks before the arrest, he saw Washington and Battle
together in the house. As he approached them, Washington
intercepted him as Battle slipped by in the hallway; Battle then
went into his bedroom, came out with a pillowcase, went outside
through the back door, and then came back into the house.
Second, at Thanksgiving dinner Washington came in, went over

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Opinion of the Court by Cuéllar, J.

to Battle and Hunter, had a conversation with them, and then
all three men left.
The defense also presented evidence that Washington and
others in his life had used some of the property stolen from the
Demkos’ home: namely, credit cards and a check. Washington
was ultimately arrested for a parole violation, credit card fraud,
theft, and embezzlement.
Furthermore, the defense called Johnney Prowse, who had
been confined at the West Valley Detention Center with
Washington. Prowse testified that sometime between late 2000
and April 2001, he overheard Washington tell two other inmates
that he “got away with a couple of hot ones” for which “Battle
Cat,” as Battle was known, was being charged with. Prowse
later met Battle in jail, asked him if he was “Battle Cat,” and
told him what he had heard. Prowse did not receive any benefit
for his testimony in this case.
Finally, the defense challenged the adequacy of the
investigation of the crimes. For example, police didn’t interview
Washington or search his room until multiple days after Battle
made custodial statements implicating him; their questioning of
Washington focused mainly on the stolen credit cards, and they
did not investigate Battle’s claims that Washington had entered
the Demkos’ house or driven their car; and they didn’t attempt
to match the latent prints developed in the case to Washington. 3

3 In addition to advancing its third party culpability
argument, the defense challenged the strength of the evidence
against Battle. For example, the defense pointed to
inconsistencies between Battle’s custodial statements and the

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Opinion of the Court by Cuéllar, J.

3. Rebuttal
The prosecution called five law enforcement officers, each
of whom Prowse claimed he told about Washington’s
admissions. They testified Prowse never told them about an
inmate having confessed to a crime for which someone else was
being framed.
B. Penalty Phase
1. The Prosecution’s Case in Aggravation
The prosecution presented a stipulation that Battle had
two prior felony convictions: one in 1995 for first degree
residential burglary, and one in 1997 for forgery. The
prosecution also presented evidence of two unadjudicated
offenses. First, while serving time in 1999 for the forgery
conviction, Battle participated in a prison riot. Battle admitted
that he hit an inmate in self-defense, and because of his
involvement he was temporarily placed in administrative
segregation. Second, the prosecution called Matthew Hunter
and Anthony Bennett, both of whom testified that Battle had
attacked Hunter in the summer of 2000, when the three were
living together in another Christian Living Home. Battle and
Hunter went out drinking one night, and Battle became jealous
when Hunter talked to a woman. Battle asked Hunter to go
outside, and he then twice struck Hunter on the back of the head
with a brandy bottle, knocking him to the ground and causing
lacerations. According to Bennett, right after the assault Battle
said he had beaten Hunter because Hunter had disrespected

physical evidence, including that Battle said he stabbed Mr.
Demko on the left side of his neck, but the stab wound was
actually on the right side.

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Opinion of the Court by Cuéllar, J.

him by “hitting on his girlfriend.” Battle also said he tried to
kill Hunter and he should have killed him, though Bennett
admitted he had not mentioned these statements to the officers
investigating the Demko murders. According to Hunter, Battle
later explained that he had gotten drunk and “tripped out.”
Finally, the prosecution presented victim impact evidence
through the testimony of Denise Goodman and Richard Demko.
The two testified about their father and stepmother, shedding
light on their humble upbringings and wonderful marriage of 22
years. The two also testified about how difficult their parents’
deaths and the trial had been on them. Denise described to the
jury how she was a “daddy’s girl,” and had great memories of
her father, including how he taught her to accomplish anything
she could set her mind to. She recounted the horror of learning
her father and stepmother were killed, having to identify them
from a photograph, and having to learn at trial about the
gruesome way they were killed. And she described how she felt
following the murders: She became cynical and distrusting,
scared of shadows, constantly locked doors behind her, and
suffered nightmares. Richard described how his father had been
his mentor and how his teenage daughter adored the Demkos.
He said the murders took away his sense of security and made
him afraid to let his daughter ride her bike out on her own. And
he testified about how hard it was to learn at the trial that his
parents had been put in the trunk of a car and taken out to the
desert to be butchered.
2. The Defense’s Case in Mitigation
The defense presented testimony from family members
about Battle’s background and upbringing, a psychologist about

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Opinion of the Court by Cuéllar, J.

the impact of Battle’s childhood on his personality and behavior,
and an expert regarding prison conditions.
The court heard testimony from Battle’s biological father,
three of his biological aunts, his biological grandmother, and two
biological half sisters. Their testimony revealed how the
extended family was plagued by poverty, violence, and racism,
and that Battle experienced these issues during his early
childhood. Battle’s biological mother, a White woman, left his
biological father, a Black man, when Battle was three months
old. She eventually moved with Battle to West Virginia, where
her parents lived. Her family was poor; sometimes they put
coffee and water in Battle’s baby bottle because they could not
afford milk. At times, Battle was sent to live in a foster home.
His foster family in West Virginia, a White family, made racial
comments and spanked him with a wooden board. The town
where he lived in West Virginia was also apparently racist, and
because Battle was not White the community shunned the
entire family. When the older children walked with Battle,
people threw rocks and eggs at them. His grandmother made
racist comments and refused to pick him up. One night,
someone burned a cross in the yard, and Battle’s mother
suspected it might have been her own parents. Eventually, this
all proved too much for her. Just before his fifth birthday, she
gave him up to the Battles for a private adoption.
Battle’s adoptive mother, Laura Battle, testified (in a
videotaped deposition) about raising Battle with her husband.
She testified that Battle had a normal childhood with no major
psychological or behavioral problems. But she testified that he
experienced “racial issues” as a child and was treated differently
because of his race. She said he had a hard time adjusting to
being the only minority child in karate class, which he did for 12

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Opinion of the Court by Cuéllar, J.

years; and at age 10, he asked what color he was after being
teased at school because his complexion was lighter than some
of the other (presumably Black or minority) children.
The psychologist testified that Battle’s childhood marred
him in ways that interfered with his ability to bond with others
and develop a sense of interconnectedness. He described how
Battle was, as a young child, an outsider in a deeply racist
environment, and Battle would have appreciated that he was
not accepted but was instead viewed as a problem. He also
testified that Battle being abruptly abandoned by his mother
was especially traumatic. He explained that her lack of a
consistent presence early in Battle’s life — including Battle’s
time in foster care — hampered Battle’s ability to develop any
“trust or predictability in the world,” and that the “epitome” of
this was when he was given up for adoption and taken away
from everything and everyone he knew. He opined that even
though Battle’s adoptive mother testified that Battle had no
problems after being adopted, internally, Battle would have had
massive problems given the circumstances but simply learned
not to show them. For example, in the sixth and seventh grades,
Battle was sexually abused by a teacher. But Battle’s adoptive
mother got angry and didn’t believe him; and even though the
teacher was later arrested, the topic still was never discussed
again. In the psychologist’s view, Battle’s childhood was not the
reason why he was involved in the crimes in this case. But it
put him at risk because he never had the opportunity to develop
the ability, personality, and emotional stability to form
relationships and a life that may have prevented this tragedy.
Finally, a former associate warden of San Quentin State
Prison testified about conditions for prisoners serving life
without parole.

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

II. BATSON/WHEELER MOTION
Battle is a Black male. He contends the prosecutor
violated his right to equal protection and to a jury drawn from a
fair cross-section of the community by using a peremptory
challenge on a Black prospective juror. (Batson v.
Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler).) The trial court denied Battle’s
Batson/Wheeler motion, finding he did not make a prima facie
showing that the prosecutor exercised the single peremptory
challenge at issue in a discriminatory manner. We find no error.
A. Background
The trial court began the jury selection process on
February 10, 2003, when it swore in the first panel of
prospective jurors and began to address hardship excusals.
After the initial hardship excusals, 187 prospective jurors
remained. The court had these prospective jurors fill out a 20-
page questionnaire. It requested that the parties compile a list
of prospective jurors for which, based on their questionnaire
answers, excusals for cause would be stipulated to prior to voir
dire. The parties agreed to stipulate to 71 prospective jurors.
The prosecutor stated he and defense counsel agreed to “pretty
much eliminate[] everybody that said they were A and E [in
response to question 2A on page 15 of the questionnaire].” 4
On March 4, the trial court excused additional prospective
jurors for hardship, leaving 88 prospective jurors. Seven (8

4 Question 2A asked prospective jurors to “check the one
that best describes your feelings or attitude: [¶] A. I strongly
favor the death penalty. . . . [¶] B. I favor the death penalty . . . .
[¶] C. I neither favor nor oppose the death penalty. . . . [¶] D. I
have some doubts or reservations about the death penalty . . . .

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Opinion of the Court by Cuéllar, J.

percent) were Black. The voir dire process then proceeded under
a “ ‘jury box’ method.” (People v. Avila (2006) 38 Cal.4th 491,
537 (Avila).) The court called 12 prospective jurors into the box
for questioning by the attorneys. After questioning the jurors,
the attorneys could make for-cause challenges. The attorneys
could also use alternating peremptory challenges or accept the
jury as constituted. When the court excused a prospective juror,
it called a new prospective juror into the box for questioning.
Two of the 12 prospective jurors first seated in the box,
S.W. and E.F., were Black. The prosecutor used his fifth
peremptory challenge to excuse S.W. after moving
unsuccessfully to challenge her for cause.5 After defense counsel
exercised his next peremptory challenge, the court called J.B., a
Black woman, into the box. The prosecutor questioned J.B. at
length about her death penalty views but passed for cause.
Upon the resumption of voir dire the following day, the court
excused two Black jurors seated in the jury box: The court
excused J.K. on its own finding of hardship. And it excused
M.N., who had mixed up her dates and therefore was not present
on the previous day, for cause (by stipulation of the parties).
Soon thereafter, the prosecutor used his ninth peremptory
challenge to excuse J.B. The prosecution exercised two

[¶] E. I strongly oppose the death penalty. . . .” (Underscoring
omitted.)
5 The record does not indicate that the trial court expressly
denied the for-cause challenge. That seems quite irregular. But
defense counsel did not raise this issue or specifically object to
the excusal of S.W., and on appeal Battle does not base his
Batson/Wheeler claim on S.W.’s dismissal.

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

additional peremptory challenges, and defense counsel then
raised a Batson/Wheeler motion. He asserted that he was
concerned about the prosecutor’s use of peremptory challenges
against Black prospective jurors, “most specifically” J.B. He
first observed that the prosecutor had struck two of the three
Black prospective jurors that had entered the box. He argued
this figure was “glaring,” even though the number of strikes
“may not seem like a large number” because of the small number
of Black individuals in the venire. He also pointed out that the
prosecutor had used two of his 11 peremptory challenges (18
percent) on Black prospective jurors, even though they
comprised only 8.13 percent of the prospective jurors overall.
Defense counsel did not object to S.W.’s removal, and S.W.’s
removal is not at issue on appeal. What’s at issue here is,
ultimately, the removal of one juror out of the prosecutor’s first
11 peremptory challenges (9.09 percent). Counsel appears to
have calculated the representation of Black prospective jurors
by dividing the number of those jurors present on the first day
of voir dire (7) by the number of prospective jurors present on
that day, excluding two excused by the court at the outset (86).
Defense counsel argued that striking J.B. was “especially
concern[ing],” because J.B. had indicated during questioning
that she could be fair. Furthermore, he contended that the
prosecutor’s questioning of J.B. lasted longer than the
prosecutor’s questioning of other jurors, even after J.B. said she
could be fair and could impose the death penalty. He also
explained that the prosecutor had asked to stipulate to J.B.’s
dismissal in the initial list of proposed stipulations, but that
there was no basis in her questionnaire responses to justify such
a stipulation. Defense counsel then asserted that the prosecutor
had proposed to stipulate the dismissal of other Black

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

prospective jurors without justification. As an example, he
noted that the prosecution had proposed to stipulate to A.H.,
even though her questionnaire was “completely unbiased. She
said she could be completely fair, she neither favored nor
opposed the death penalty, and yet [the prosecutor] put [A.H.]
on his list of stipulations.” Defense counsel concluded by urging
the court to find he had established a prima facie case of racial
discrimination, noting that there were very few Black
prospective jurors and that Battle was Black.
The trial court found that Battle failed to establish a
prima facie case. The court believed that it had to “make a
finding that there has been a systematic exclusion of a
protect[ed] class” and explained it was “not in a position to say
[the prosecutor] . . . has a racially motivated motive.” It further
explained that the proposed stipulations indicated the
prosecutor thought the identified jurors weren’t qualified for a
capital case, and that it “didn’t know at this juncture that the
reason for [any of the proposed stipulations] was racially
motivated. Absent that . . . [the court] can’t find, and [it] won’t
find, that there is a prima facie showing at this point.” The court
indicated that if defense counsel could show that “the only ones
[the prosecutor] wanted excluded by stipulation were
minorities” then “maybe” there is “something to talk about.”
The trial court told defense counsel “You’re close” and denied the
Batson/Wheeler motion.
The court asked the prosecutor if he would like to say
anything for the record. The prosecutor said, “I don’t feel I need
to justify my reasons,” but he noted that a different Black
prospective juror he had proposed for stipulated dismissal,
M.N., had expressed clear death penalty reservations. The court
added that M.N.’s son had been murdered, and it was surprised

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

she had not been stipulated to. The prosecutor agreed, stating,
“[T]hat’s one of the people I proposed to stipulate to. And that
goes far beyond racial reasons.”
Before the regular jury was sworn, the prosecution struck
eight additional prospective jurors. None was Black.
Nonetheless, none of the remaining Black prospective jurors
made it onto the regular jury. E.F. remained in the box for
several rounds — and the prosecution twice accepted panels
including him — but defense counsel eventually struck him.
During alternate juror selection, the court excused A.H. and
B.A., two Black prospective jurors, by stipulation of the parties.
The final Black prospective juror, Juror No. 360, was selected as
an alternate, after the prosecutor passed him for cause and the
parties accepted a panel of four alternates that included him.
The resulting regular jury was comprised of 12 White
jurors. Although one alternate juror ended up being selected as
a replacement during the penalty phase, and a second alternate
was selected when the first alternate also had to be excused,
Juror No. 360 was not selected. The selected alternates were
White, so the jury that sentenced Battle to death was also all
White.
B. Analysis
Both the United States and California Constitutions
prohibit the exercise of peremptory strikes on the basis of race
or ethnicity. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra,
22 Cal.3d at pp. 276–277.) We follow a familiar three-step
process in evaluating a defendant’s Batson/Wheeler motion.
First, the defendant must make a prima facie case by showing
facts sufficient to support an inference of discriminatory
purpose. (Johnson v. California (2005) 545 U.S. 162, 168

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

(Johnson).) Second, if the defendant makes a prima facie
showing, the burden shifts to the prosecutor to offer a
permissible, nondiscriminatory explanation for the strike.
(Ibid.) Third, if the prosecutor offers a nondiscriminatory
explanation, the trial court must decide whether that
explanation is genuine, or whether impermissible
discrimination in fact motivated the strike. (Ibid.)
The trial court denied Battle’s Batson/Wheeler motion at
the first step. Ordinarily, we review such a denial deferentially,
considering only whether substantial evidence supports the trial
court’s conclusion. (People v. Bonilla (2007) 41 Cal.4th 313, 341
(Bonilla).) But Battle’s trial occurred before the United States
Supreme Court announced in Johnson, supra, 545 U.S. at page
168, that Batson’s step one requires only a reasonable inference
of discrimination, as opposed to the “ ‘strong likelihood’ ”
standard that California courts had been applying at the time.
(People v. Clark (2016) 63 Cal.4th 522, 566 (Clark).) Because
Battle’s trial predated Johnson and we cannot be sure from the
record that the trial court applied the appropriate standard, we
conduct our own independent review: We apply the Johnson
standard de novo to determine whether the record supports an
inference that the prosecutor excused a juror on an
impermissible basis. (Bonilla, supra, 41 Cal.4th at p. 342.)
In conducting our review, we remain mindful of the “low
threshold” showing required for Batson’s first step. (People v.
Scott (2015) 61 Cal.4th 363, 384 (Scott).) This step should not
“be so onerous that a defendant would have to persuade the
judge—on the basis of all the facts, some of which are impossible
for the defendant to know with certainty—that the challenge
was more likely than not the product of purposeful
discrimination.” (Johnson, supra, 545 U.S. at p. 170.) It is

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

satisfied simply by evidence sufficient to permit us to draw an
inference that discrimination may have occurred. (See id. at
pp. 168, 171–172.)
Battle argues that racial discrimination motivated the
prosecutor’s peremptory strike of J.B. He explicitly indicates
that his Batson/Wheeler argument does not concern S.W., the
other Black prospective juror struck by the prosecution. Our
inquiry therefore focuses on J.B.’s excusal.
We consider whether “ ‘the totality of relevant facts’ ”
surrounding J.B.’s excusal “ ‘gives rise to an inference of
discriminatory purpose.’ ” (Johnson, supra, 545 U.S. at p. 168.)
This does not — contrary to the trial court’s assertion — require
that Battle show a “systematic exclusion of a protect[ed] class.”6
The ultimate issue is not whether there is a pattern of
systematic exclusion, but instead “ ‘ “whether a particular
prospective juror has been challenged because of group bias.” ’ ”
(Clark, supra, 63 Cal.4th at p. 567.)
We examine the entire record before the trial court to
determine whether it supports an inference of such group bias.
(People v. Reed (2018) 4 Cal.5th 989, 999 (Reed).) Certain types
of evidence are especially relevant to this inquiry, including
whether the prosecutor has struck most or all of the members of
the venire from an identified group, whether a party has used a
disproportionate number of strikes against members of that

6 Battle argues that the trial court’s misstatement, and the
pre-Johnson case law that governed his trial, indicates we must
remand. But he fails to explain why we can’t, as our precedent
instructs, conduct a de novo review under these circumstances.
(See, e.g., Avila, supra, 38 Cal.4th at pp. 553–554.)

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Opinion of the Court by Cuéllar, J.

group, whether the party has engaged prospective jurors of that
group in only desultory voir dire, whether the defendant is a
member of that group, and whether the victim is a member of
the group in which the majority of the remaining jurors belong.
(Scott, supra, 61 Cal.4th at p. 384.) We may also consider
nondiscriminatory reasons for the challenged strikes that are
“apparent from and ‘clearly established’ in the record.” (Ibid.)
Yet we may do so only when these reasons “necessarily dispel
any inference of bias,” such that “ ‘there is no longer any
suspicion . . . of discrimination in those strikes.’ ” (Ibid.)
Engaging as we must in an independent review of this
record, we first note that the presence of salient racial issues in
the case raises concerns that warrant careful consideration.
To begin with, Battle is Black, and his victims were White.
This provided the prosecutor with a plausible motive to strike
Black prospective jurors on the impermissible “assumption or
belief that” they “would favor” Battle solely because of their
shared race. (Flowers v. Mississippi (2019) ___ U.S. ___, ___ [139
S.Ct. 2228, 2241].) As a result, the racial identities at play
“ ‘raise[] heightened concerns about whether the prosecutor’s
challenge’ ” of J.B. was “ ‘racially motivated.’ ” (People v.
Rhoades (2019) 8 Cal.5th 393, 430 (Rhoades); see Powers v. Ohio
(1991) 499 U.S. 400, 416 (Powers).)
Also raising heightened concerns is the fact that Battle
was ultimately convicted and sentenced to death for killing
White victims by an all-White jury. (Rhoades, supra, 8 Cal.5th
at p. 430 [racial identity between the victim and the majority of
remaining jurors raises heightened concerns]; see Wheeler,
supra, 22 Cal.3d at p. 281.) Of course, the ultimate composition
of the jury serves as standalone evidence to inform our step-one

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Opinion of the Court by Cuéllar, J.

analysis. (See, e.g., Bonilla, supra, 41 Cal.4th at p. 346.) But
it’s particularly germane where the case was racially charged.
(Rhoades, supra, 8 Cal.5th at p. 435.) Here, Battle broke into
an elderly White couple’s home, forced them into the trunk of
their own car, drove them out into the desert, and strangled the
man and stabbed both victims to death. Moreover, part of the
defense’s mitigation case involved evidence that Battle had been
the victim of racial discrimination during his childhood. Given
this racially fraught context, that the prosecutor’s strikes led in
large part to an all-White regular jury is “obviously highly
relevant to whether a prima facie case existed.” (People v.
Johnson (2003) 30 Cal.4th 1302, 1326; cf. People v. Hardy (2018)
5 Cal.5th 56, 78 (Hardy) [similar principle at step three].)7
Together, the salient racial issues at play are
significant — a Black defendant, the excusal of Black
prospective jurors, White victims of violent interracial crimes,
and a conviction and sentence imposed by an all-White jury. As
Battle argues, these are important factors when determining
whether J.B.’s excusal may have occurred because of
discrimination in the jury selection process. (See Powers, supra,
499 U.S. at p. 416.) And they distinguish this case from our
recent decisions in Rhoades, supra, 8 Cal.5th at pages 435–436,
and Reed, supra, 4 Cal.5th at pages 998–1003. But standing
alone, these factors are not dispositive. (See, e.g., Hardy, supra,
5 Cal.5th at p. 78.) Rather, we must carefully scrutinize the

7 Battle also argues the trial involved a key cross-racial
credibility issue: The all-White jury had to assess the credibility
of his confessions to officers, which the defense asserted were
fabricated. But the record does not reveal the officers’ races.
(Cf. U.S. v. Stephens (7th Cir. 2005) 421 F.3d 503, 515; Holloway
v. Horn (3d Cir. 2004) 355 F.3d 707, 723.)

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Opinion of the Court by Cuéllar, J.

remaining evidence “with these and all other relevant
circumstances in mind.” (Ibid.; see ibid. [racial overtones and
prosecutor’s excusal of all Black jurors were “troubling”
circumstances “warrant[ing] close scrutiny”]; Smith v. U.S.
(D.C. 2009) 966 A.2d 367, 377 [similar]; People v. Johnson,
supra, 30 Cal.4th at p. 1326 [similar].)
Scrutinizing the record through this lens, we conclude that
Battle’s showing doesn’t suffice to give rise to an inference that
discriminatory intent motivated J.B.’s excusal.
Battle contends that the prosecutor’s disproportionate
strike rate against Black prospective jurors supports a prima
facie case. (See People v. Bell (2007) 40 Cal.4th 582, 598, fn. 4
(Bell).) We disagree. At the time of the Batson/Wheeler motion,
the prosecutor had used approximately 18 percent (2/11) of his
strikes to remove Black prospective jurors; at the close of voir
dire, he had used over 10 percent (2/19) of his strikes against
such jurors. Although these figures exceed 8 percent
(7/88) — the proportion of Black prospective jurors in the pool of
jurors subject to peremptory challenge — we can glean only
limited insight from the discrepancies. The small sample size
introduces uncertainty into the analysis and severely limits the
value of the data. (See, e.g., People v. Parker (2017) 2 Cal.5th
1184, 1212, fn. 12.) For example, if the prosecution had
succeeded in removing S.W. for cause and therefore used just
one strike against a Black prospective juror, both strike rate
disparities become negligible. (Cf. People v. Banks (2014) 59
Cal.4th 1113, 1147 (Banks); People v. Jones (2011) 51 Cal.4th

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Opinion of the Court by Cuéllar, J.

346, 362 (Jones).)8 That is essentialy the situation in this case,
since Battle challenges only J.B.’s excusal.
Battle acknowledges these sample size concerns, and he
offers three reasons why these concerns should not be
dispositive. Each is minimally persuasive.
Battle first argues that we should draw insight from the
trial court’s comment that the Batson/Wheeler motion was a
“close” call. But it’s not clear that Battle is right in his
description of the trial court’s comment. The trial court said,
“You’re close.” We cannot resolve whether the trial court meant
that its ruling had been close (Johnson, supra, 545 U.S. at p.
173), or that the defense might be able to point to additional
developments, regarding future strikes, that would shift the
scales in its favor (see Rhoades, supra, 8 Cal.5th at p. 437). In
any event, even if we accept Battle’s interpretation, we find it
difficult to square with his earlier concession — made in his
initial explanation for why we must remand the case — that our
precedent “provides no indication” that the strike rate statistics
made this a close case. We agree with his assessment on our de
novo review. (See Rhoades, supra, at p. 437 [on de novo review,
we don’t have to parse trial court’s “commentary” on
“suspicious[ness]” of “prior strikes”]; but see id. at p. 461 (dis.

8 Under this scenario, the prosecutor would have used 9
percent (1/11) of his strikes to remove Black prospective jurors
by the time of the Batson/Wheeler motion, and 5 percent (1/19)
of all his strikes against such jurors. The former barely exceeds
Black representation in the pool of jurors subject to challenge (8
percent), and the latter is less than this figure and Black
representation on the regular/alternate jury (6 percent (1/16)).

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Opinion of the Court by Cuéllar, J.

opn. of Liu, J.) [such commentary, even if not binding on us, can
have relevance in our (totality-of-the-circumstances) analysis].)
Battle also contends that the high exclusion rate of Black
prospective jurors — e.g., the prosecutor struck two of the first
three Black prospective jurors to enter the jury box — suggests
we should draw an inference of discrimination from the small
sample size of strikes. But Battle admits that this argument
can’t easily be reconciled with our precedent. As we have
frequently stated: “Although circumstances may be imagined in
which a prima facie case could be shown on the basis of a single
excusal, in the ordinary case . . . to make a prima facie case after
the excusal of only one or two members of a group is very
difficult.” (Bell, supra, 40 Cal.4th at p. 598, fn. 3.)9
Battle’s final sample-size argument also fails to persuade.
Battle argues that the prosecutor disproportionately struck not
just Black prospective jurors, but also Hispanic prospective
jurors. Battle did not make this argument at the trial court; the
prosecutor was not given an opportunity to address it, nor was

9 To the extent Battle asks us to overturn this
precedent — including because of the recent passage of
Assembly Bill No. 3070 (2019–2020 Reg. Sess.) — we decline the
invitation. Assembly Bill No. 3070 has not yet taken effect
(Code of Civ. Proc., § 231.7, subd. (i)), so it offers us no occasion
to revisit Bell, or other aspects of our Batson/Wheeler
jurisprudence more broadly. We note, however, that a small
sample size is not automatically a death knell for an argument
of a prima facie case at step one. (See, e.g., Johnson, supra, 545
U.S. at p. 164 [prima facie showing where all three Black
prospective jurors struck].)

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

the court called upon to rule on the question. Even if we decided
such an analysis was relevant in these circumstances, Battle
marshals nothing from the record to permit us to sufficiently
evaluate the propriety of the other excusals. Without additional
indicia of discriminatory purpose — showing the prosecutor
improperly targeted these jurors to achieve an all-White jury —
we cannot conclude that the bare statistics Battle identifies
establish any inference that racial bias motivated J.B.’s excusal.
(Cf. People v. Johnson (2018) 8 Cal.5th 475, 509 & fn. 9.)
Nor is Battle’s argument bolstered by other evidence of the
prosecution’s conduct of jury selection. To begin with, the
prosecutor did not strike J.B. right away, but instead passed on
her for several rounds before striking her using his ninth
challenge. This fact tends to suggest that J.B.’s later challenge
was not based on race. (See, e.g., People v. Clark (2011) 52
Cal.4th 856, 906.) Of course, “the prosecutor’s passes” do not
“themselves wholly preclude a finding that a panelist is struck
on account of bias . . . .” (People v. Gutierrez (2017) 2 Cal.5th
1150, 1170–1171.) A delay in striking these jurors could also
align with a strategy to avoid detection of race-conscious strikes.
(See People v. Motton (1985) 39 Cal.3d 596, 607–608 (Motton).)
Yet Battle offers nothing to indicate such a strategy existed
here.
Moreover, the prosecutor repeatedly passed on E.F., a
Black prospective juror who was in the jury box from the very
beginning. In fact, the prosecutor twice accepted a jury panel
containing E.F. before defense counsel eventually struck him.
This fact tends to suggest that race was not a motive behind
J.B.’s challenge. (See People v. Streeter (2012) 54 Cal.4th 205,
225.) True: In many cases where we apply this principle, some
or all of the passed Black jurors went on to actually serve on the

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juries, unlike here. (People v. Clark, supra, 52 Cal.4th at p. 906;
People v. Blacksher (2011) 52 Cal.4th 769, 802.) It’s also true
that we can’t blindly apply this principle, without any
consideration of “ ‘the practical realities of jury selection.’ ”
(Motton, supra, 39 Cal.3d at p. 607.) Battle points to two factors:
(1) undesirable jurors remained on the panels the prosecution
accepted; and (2) the prosecutor’s acceptances occurred after the
court, in ruling on the Batson/Wheeler motion, said “[y]ou’re
close.” Yet nothing about these factors indicates that the
prosecutor was exercising peremptory challenges based on race,
as opposed to an individualized analysis of each juror. Battle
ignores the reality that the defense struck E.F., and that by all
indications E.F. was a potentially favorable juror to the
prosecution. (Cf. People v. Lenix (2008) 44 Cal.4th 602, 610,
629.)
The prosecutor’s acceptance of a jury with a Black
prospective juror (Juror No. 360) as an alternate, and this juror
ultimately being seated as an alternate, further lessens any
inference of discrimination. We have often underscored that
“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 under all the
circumstances that no Wheeler/Batson violation occurred.”
(People v. Garcia (2011) 52 Cal.4th 706, 747–748; see also Reed,
supra, 4 Cal.5th at p. 1000.) Our cases have applied this
principle when some or all the Black jurors in question were, as
in this case, seated as alternates, instead of on the 12-member
jury. (See, e.g., Jones, supra, 51 Cal.4th at p. 363; People v. Kelly
(2007) 42 Cal.4th 763, 780 (Kelly).) We do so here as well. We
are mindful, though, of Battle’s observation that parties’
strategies for selecting alternates can be markedly different

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

from their strategies for selecting the actual jury. (See People v.
Lewis (2006) 39 Cal.4th 970, 1018, fn. 13.)
It is against this backdrop that we consider the
circumstances relevant to the strike of J.B. Although Battle
argued in the trial court that the strike of J.B. was “concerning”
because J.B. indicated during questioning that she could be fair,
the Attorney General identifies a race-neutral reason for J.B.’s
excusal that was “apparent from and ‘clearly established’ in the
record.” (Scott, supra, 61 Cal.4th at p. 384; see Rhoades, supra,
8 Cal.5th at pp. 430–431.) Considering both positions, we agree
with the Attorney General that the record “dispel[s] any
inference of bias” that might be thought to arise from the strike
of this particular juror. (Scott, at p. 384.)10 The remainder of
Battle’s argument, by contrast, fails to cast any doubt on the
prosecutor’s motives for striking J.B. We turn first to what the
record reveals about the race-neutral basis justifying J.B.’s
strike.
J.B. was a 52-year-old Black woman. She was married
with two sons, had a master’s degree in school administration
and school psychology, and had been an elementary school

10 As noted, Battle does not challenge S.W.’s excusal. During
voir dire, S.W. expressed serious concerns about her ability to
vote for the death penalty, and she ultimately stated that she
didn’t think she could impose the death penalty for any reason.
Therefore, even if Battle had raised a Batson/Wheeler claim
regarding her excusal, her strong reservations dispel any
inference of discrimination (see, e.g., Scott, supra, 61 Cal.4th at
p. 385), and the trial court could justifiably have even excused
S.W. for cause (see Wainwright v. Witt (1985) 469 U.S. 412, 424).

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

teacher since 1974. She had previously served on a jury, which
reached a verdict. And she had two arguably pro-prosecution
attributes: She herself had been the victim of a violent robbery
in her home, and one of her sisters had previously been in local
law enforcement. (People v. Turner (1986) 42 Cal.3d 711, 719.)
During voir dire, she even stated that she assumed the
prosecutor had a compelling case, saying the case “must be
pretty strong. We’re all sitting here.” By all accounts, J.B. also
generally appeared to be an impartial prospective juror on
issues pertaining to guilt. In her questionnaire, she answered
that Battle’s race would not impact her evaluation of the
evidence in the case. She stated that she had no sentiments on
racial issues, that she didn’t judge anyone based on race, and
that her concern was only that the defendant be given a fair
trial. She stated, “I believe in the system: court/criminal
system.” And throughout her questionnaire and voir dire, she
emphasized she intended to listen to all the facts, and that her
judgment would be based on the evidence.
J.B. also appeared at first blush to be unbiased in her
views on the death penalty. J.B. explained during voir dire that
she could consider both the death penalty and a life sentence.
She stated she wouldn’t have a problem voting for death “as long
as all the facts were proven.” After J.B. explained she expected
expert witnesses to be well-prepared, given someone’s life was
on the line, the prosecutor asked if she could impose the death
penalty in light of this concern. She responded: “I could if he’s
guilty.” The prosecutor also asked if J.B. would be able to look
at the defendant and tell him death is the appropriate sentence.
She said, “I don’t have a problem with that. I’m my own person.
I don’t let anyone sway me right or left. I have to go by what I
feel.” J.B.’s questionnaire responses are largely in line with

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 PEOPLE v. BATTLE
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these statements. She indicated she neither favored nor
opposed the death penalty and would consider both possible
penalties, and that she had no moral, philosophical, or religious
objections to the death penalty. She thought Texas used the
death penalty too frequently, but California used it “about
right.” And she indicated she would consider all mitigating and
aggravating circumstances in reaching a penalty determination.
But just because the record reveals that J.B. had much to
commend her (dis. opn., post, at pp. 2–3, 5) doesn’t mean Battle
has made a prima facie case. So long as prosecutors are not
motivated by discriminatory intent, they can strike prospective
jurors for any reason — including for reasons that don’t
necessarily justify a challenge for cause. (Rhoades, supra, 8
Cal.5th at p. 435.) They don’t have to accept a prospective juror
simply because the juror may be pro-prosecution in some
respects. (See, e.g., People v. Miles (2020) 9 Cal.5th 513, 562;
People v. Thomas (2012) 53 Cal.4th 771, 794.) That defense
counsel saw no reason for the prosecutor to challenge J.B. “does
not raise an inference that the prosecutor’s reason for doing so
was improper group bias.” (Clark, supra, 63 Cal.4th at p. 567.)
And most importantly, even when a prospective juror has
expressed neutrality or a favorable opinion on the death penalty,
the prosecutor is not required to take that juror’s answers “ ‘ “at
face value” ’ ” when “ ‘other statements or attitudes of the juror
suggest that the juror has “reservations or scruples” about
imposing the death penalty . . . .’ ” (Banks, supra, 59 Cal.4th at
p. 1149; see People v. Zaragoza (2016) 1 Cal.5th 21, 44.) Such
statements or attitudes are race-neutral reasons that can justify
a peremptory strike. (Rhoades, supra, 8 Cal.5th at pp. 431–432;
Scott, supra, 61 Cal.4th at p. 385.)

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

What the record reveals here are assertions by J.B. that,
considered together and in context, justifiably would have raised
significant concerns about her willingness to impose the death
penalty.
In response to the jury questionnaire’s prompt asking
what a sentence of “death by lethal injection or death in the gas
chamber” would “mean to you,” she answered: “Curel [sic].
Inhumane. Why?” This strongly worded answer suggests she
had general misgivings about the death penalty, even in spite of
her other answers.
During voir dire, the prosecutor followed up on the
misgivings J.B. expressed in her questionnaire answer. J.B.
responded, “I feel that way when I’ve read articles about — I
would say, for instance, the inmates in Texas. And a lot of them
have been proven innocent based on the DNA and then they
were given the death penalty. I feel that part was — I didn’t
like that part because they were found guilty, they went — you
know, they were facing death and 20 years later they found out
they didn’t do it. And I just felt that that was so inhumane to
execute someone for something that they didn’t do.” The
prosecutor then asked if the innocent Texans would be on her
mind if the case reached the penalty phase or if — to avoid
condemning an innocent person — she’d consider voting for life
to make it easier. J.B. responded “No.” Although her responses
may have helped contextualize her questionnaire answer, they
would not have fully dispelled legitimate concerns regarding her
death penalty views. “Cruel” and “inhumane” are powerful
words — suggesting J.B. had concerns about whether the death
penalty should be imposed at all, and her clarification did not
entirely get at these concerns. She prefaced her clarification
with “for instance,” signaling she may have had more than one

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

reason for her concerns. And her reference to Texas cases
introduced a new dimension to her misgivings: By explaining
that “a lot of” inmates in Texas “have been proven innocent” and
that someone could be sentenced to death and then “20 years
later” be proven innocent, J.B. clearly conveyed that she worried
about being involved in a capital trial involving an innocent
defendant. Though J.B. denied she had this concern here, no
reasonable prosecutor would have taken her denial at face value
given her ensuing response.
In her ensuing response, J.B. explained: “Because I have
to live with myself, and I go with my first feeling and I go with
basically facts. And if — it’s unfortunate that if it’s proven that
he’s guilty I have to go along with the law. There’s — I can’t go
by, [t]his is what [J.B.] feels. I have to go by, [t]his is the law,
this is what he did, this is what was proven. And without a
reasonable doubt, I have to. I have to vote on it.” (Italics added.)
This response, taken together with her “cruel” and “inhumane”
questionnaire answer and her insufficient clarification
referencing Texas cases, indicates that J.B.’s death penalty
reservations were serious. Particularly in light of her other
answers expressing reservations, saying it was “unfortunate”
that she had “to go along with the law” would reasonably have
conveyed that she had an inherent discomfort with the death
penalty — i.e., she generally thought it was a verdict to avoid,
despite being required to consider it and be able to render it
when appropriate. In other words, she viewed it as
“unfortunate” that she could be in the position of serving as a
capital juror and potentially imposing the death penalty. Even
though this view may not have justified J.B.’s excusal for cause,
we focus our inquiry on the reasons that readily appear for the
prosecution’s exercise of a discretionary strike. (See Rhoades,

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Opinion of the Court by Cuéllar, J.

supra, 8 Cal.5th at p. 435 [“ ‘Unlike a for-cause challenge . . . ,
the issue here is not whether a juror held views that would
impair his or her ability to follow the law. Unimpaired jurors
may still be the subject of valid peremptory strikes,’ ” so long as
the strikes have not been undertaken for a discriminatory
purpose].) Any reasonable prosecutor would logically wish to
avoid a juror who, over the course of multiple responses,
expressed such hesitation to impose the death penalty. (See,
e.g., Rhoades, supra, 8 Cal.5th at pp. 431–432.)
Battle’s argument regarding the “unfortunate” voir dire
response does not persuade. He contends that all J.B. was
saying was it would be “unfortunate” for Battle — not herself —
that she may have to vote for his death. Battle’s interpretation
rests on a strained reading of the colloquy, in which the
prosecutor clearly asks J.B. to express views about how she felt
about serving on a capital jury and potentially voting for a death
sentence. (“Is that something that’s going to be on your mind,
what happened in Texas, that’s going to cause you or give you
some concern if you reach the penalty phase in this case where
you say, Well, I know about perhaps there have been some
innocent people that have been put on death row. I don’t want
to make that mistake; I’m not going to vote for death. It’s just
easier. I will give him life without parole?”) (Italics added.)
We acknowledge that some of J.B.’s statements regarding
her willingness to impose the death penalty can certainly be
individually dissected and shown to have some ambiguity when
considered in isolation. For instance, J.B. did provide some
helpful clarity to her troubling questionnaire answer. (See dis.
opn., post, at pp. 3–4.) Moreover, her “unfortunate” comment
can, in some sense, naturally be understood as her candidly
acknowledging the serious responsibility and practical realities

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

involved in serving on a capital jury and choosing between life
without parole and a death verdict. (Cf. People v. Fudge (1994)
7 Cal.4th 1075, 1094 [a juror’s equivocation on the death penalty
is understandable given the “stress and anxiety” of serving on a
jury].) Similarly, as the dissent observes, one could potentially
understand J.B.’s “unfortunate” comment as indicating “she
thought the task of deciding whether a person should live or die
is more difficult than simply voting for life imprisonment
without parole.” (Dis. opn., post, at p. 5.) And J.B. did give other
answers indicating she could vote for the death penalty.
But here, even if we could accept alternative
interpretations of J.B.’s “unfortunate” comment, or of any of the
other individual comments we have identified, considered in
isolation, those alternative interpretations would not alter our
conclusion. The prosecutor certainly was not obligated to
interpret each of J.B.’s responses in the light most favorable to
Battle. (See People v. Panah (2005) 35 Cal.4th 395, 441.) And
here, taken together and considered in context, the combination
of J.B.’s responses revealed significant reservations about the
death penalty. J.B.’s misgivings may not have justified excusing
her for cause, but they nonetheless establish a reason why the
prosecution would not have wanted her on the jury, separate
and apart from her race. (See Rhoades, supra, 8 Cal.5th at p.
431 [noting that unwillingness to impose the death penalty is a
characteristic any reasonable prosecutor would “logically avoid”
in a death penalty case]; cf. Reed, supra, 4 Cal.5th at p. 1002
[“[T]he declaration of opposition to the death penalty, even when
combined with some subsequent equivocation, reasonably
dispels any inference of discrimination”]; Panah, supra, 35
Cal.4th at p. 441 [even if reservations insufficient for for-cause
excusal, they justified a peremptory challenge].) The colloquy

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

thus dispels whatever inference of discrimination might
otherwise be thought to arise from the sole challenged strike in
this case.
Nothing in Battle’s showing calls into question our
conclusion that J.B.’s death penalty misgivings, under the
circumstances, necessarily dispel any inference that
discrimination motivated her excusal.
First, Battle does not offer any comparative juror analysis
relevant to J.B.’s misgivings. Although such analysis is not
required at the prima facie stage, we have explained that it can
sometimes “aid in determining whether the reasons we are able
to identify on the record are ones that help to dispel any
inference that the prosecution exercised its strikes in a biased
manner.” (Rhoades, supra, 8 Cal.5th at p. 432, fn. 17; see Reed,
supra, 4 Cal.5th at p. 1002 [comparing struck jurors and seated
jurors to assess the argument that race-neutral “rationales
could not have motivated the prosecutor’s strikes”].)
The strike circumstances that Battle does identify fail,
like his initial statistical arguments, to offer us any insight.
Each lacks record support.
Most prominently, Battle argues the prosecutor used
stipulations for cause prior to voir dire to strategically eliminate
Black prospective jurors. As proof, he calculates that Black (and
Hispanic) prospective jurors were stipulated to for cause at a
disproportionate rate compared to their representation in the
jury pool, even though they weren’t any more likely than their
White counterparts to have disqualifying death penalty
questionnaire answers. Specious for-cause challenges “might in
some circumstances support an inference of bias.” (People v.
Sánchez (2016) 63 Cal.4th 411, 437 (Sánchez); see Crittenden v.

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

Ayers (9th Cir. 2010) 624 F.3d 943, 956–957.) But Battle’s
argument falls well short of this standard: He agreed to the pre-
voir dire excusals by stipulation. He can’t now argue that the
stipulated dismissals his counsel agreed to, through a process
counsel agreed to, resulted in the discriminatory removal of
Black prospective jurors or shed light on later discrimination in
J.B.’s removal by peremptory challenge. (See Clark, supra, 63
Cal.4th at p. 567; People v. Duff (2014) 58 Cal.4th 527, 540 [“[A]
stipulation to the excusal of jurors forfeits any subsequent
objection to their omission from the jury pool”].)
For similar reasons, Battle can’t rely on the fact that the
prosecution unsuccessfully offered to stipulate to four Black
prospective jurors prior to voir dire. With the exception of J.B.,
defense counsel ultimately accepted the stipulated excusals of
the other three Black jurors during voir dire. In fact, counsel
proposed the stipulated dismissal of one of these jurors, B.A.,
and acquiesced to the dismissal of another of these jurors, A.H.
This certainly cuts against his argument. (See Kelly, supra, 42
Cal.4th at p. 780.) In any event, Battle’s argument also fails
because he cannot show that any of these proposed stipulations
was “specious.” (Sánchez, supra, 63 Cal.4th at p. 437.)
Battle also alleges the prosecutor unjustifiably questioned
Black prospective jurors, including J.B., for much longer than
any of the seated jurors or non-Black prospective jurors the
prosecutor struck. He also asserts that the prosecutor
disproportionately directed rhetorical flourishes to his pattern
death-qualification questions — which often asked whether the
prospective jurors would be able to directly tell the defendant of
a death verdict — at Black prospective jurors. But the record
doesn’t support Battle’s characterizations of voir dire. The
thoroughness of the prosecutor’s probing of J.B. or other Black

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

prospective jurors didn’t involve a noticeably disproportionate
number of questions and was not outside the norm of typical
questioning. (Cf. People v. Cunningham (2015) 61 Cal.4th 609,
665.) Similarly, nothing suggests that the prosecutor’s subtle
phrasing variations resulted in Black prospective jurors
experiencing more intense examinations. These variations pale
in comparison to the graphic and irrelevant questions the
Supreme Court disapproved of in Miller-El v. Cockrell (2003)
537 U.S. 322, 344 (prosecutor disproportionately gave Black
jurors “an explicit account of the execution process”).
Battle’s argument that the prosecutor eagerly and
unjustifiably urged the court to excuse for hardship J.K.,
another Black prospective juror, also lacks record support.
Although a prosecutor’s selective solicitude for minority jurors’
hardship concerns can support a prima facie case (see Snyder v.
Louisiana (2008) 552 U.S. 472, 483–484), the prosecutor
displayed no such solicitude here. J.K was a full-time nurse
seeking a master’s degree in nursing. According to her, serving
on the jury would have made it nearly impossible for her to fulfill
her work and school obligations — particularly attending
workplace meetings required for her master’s program — and
could have resulted in the loss of the $1,800 she paid for that
semester. She repeatedly raised these concerns. In discussions
at the bench, the trial court brought up to the attorneys that
J.K. was going to lose $1,800 and began to suggest that J.K was
a good candidate for excusal. The prosecutor agreed. But
defense counsel disagreed, requesting that the court first ask
J.K. to contact her employer to see if it was possible to rearrange
the workplace meetings. Ultimately, the meetings couldn’t be
rearranged, and the court excused J.K. for hardship on its own
accord. Under these circumstances, we can’t say the prosecutor

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Opinion of the Court by Cuéllar, J.

eagerly or unjustifiably advocated for J.K.’s excusal. The
prosecutor simply agreed with the court’s assessment — clearly
supported by the record — that J.K. faced a great hardship. Nor
does Battle identify any non-Black prospective jurors where, as
in Snyder, supra, 552 U.S. at pages 483–484, the prosecutor
failed to show similar sympathy for their hardship concerns.
Finally, the prosecutor’s justification for his peremptory
strikes doesn’t support an inference of discrimination. In
response to the court’s inquiry whether, after it denied the
Batson/Wheeler motion, he wanted to put anything on the
record, the prosecutor stated he felt he didn’t need to justify his
reasons. But he then stated that one of the Black jurors he had
proposed stipulating to prior to voir dire, M.N., had clear death
penalty reservations. After the court stated it was surprised
M.N. had not previously been stipulated to since she had a son
who had been murdered, the prosecutor stated M.N. was “one of
the people I proposed to stipulate to. And that goes far beyond
racial reasons.” To the extent the “that” refers to M.N.’s son
being murdered, Battle correctly points out that the prosecutor
couldn’t have been aware of this fact when he proposed to
stipulate to M.N., as it came out during voir dire. And, as Battle
observes, this strike justification didn’t address the focus of
defense counsel’s Batson/Wheeler motion: J.B.’s excusal.
Ultimately, though, we can’t glean insight from these
discrepancies. Because the trial court rejected the
Batson/Wheeler motion at step one, the prosecutor wasn’t
obligated to state his reasons for challenging any prospective
juror. (See Banks, supra, 59 Cal.4th at p. 1147.) So, there is
nothing suspect about the prosecutor’s failure to state his
reasons for striking J.B. (See id. at p. 1148.)

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Opinion of the Court by Cuéllar, J.

Furthermore, “prosecutors may be reluctant to state their
reasons for the record if doing so would jeopardize or nullify a
ruling in their favor . . . .” (Scott, supra, 61 Cal.4th at p. 388.)
To avoid this outcome, we must be careful at step one to consider
only whether the prosecutor’s stated rationale was facially
insincere. (See Kelly, supra, 42 Cal.4th at p. 781; Scott, supra,
61 Cal.4th at pp. 390–391.) Here, the prosecutor’s rationale was
not facially insincere. To the extent the prosecutor partially
misspoke about M.N.’s dismissal, Battle offers no reason why
the prosecutor would have intentionally misstated the matter,
as opposed to simply making an honest mistake. Such a mistake
doesn’t give rise to an inference of discrimination, particularly
given the prosecutor’s otherwise accurate statement that M.N.
showed clear bias against the death penalty. (Jones, supra, 51
Cal.4th at p. 366.)
In short, Battle fails to demonstrate the trial court erred
in denying his Batson/Wheeler motion. Although the racial
context of the case raises some initial concerns, Battle’s showing
fails to establish a basis for inferring that the prosecution may
have struck a particular Black juror because of her race. The
small sample size of strikes against Black prospective jurors,
and the fact that Battle challenges the excusal of only one such
juror, severely undercuts any inference we can draw from the
statistical evidence he presents. None of the remaining strike
circumstances he identifies find any support in the record.
Ultimately Battle’s challenge rests on the strike of a single juror,
after that juror had expressed misgivings about the death
penalty. The circumstances surrounding the strike dispel any
inference of discriminatory intent.

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

III. GUILT PHASE ISSUES
A. Admission of Statements to Special Investigator
Robert Heard
Battle contends one of his admissions to special
investigator Robert Heard — that he knew there was a plan to
kill the Demkos and that he participated in their
murders — was involuntary and therefore inadmissible. He
argues that this involuntary statement tainted his subsequent,
more incriminating admissions that he participated in the
Demkos’ murders. We find no error.
1. Background
Battle focuses on three portions of the pretest interview
that investigator Heard conducted.
First, after Heard took Battle through the version of
events that Battle had told Detectives Gilliam and Pacifico the
previous day, Heard pressed Battle for more details about the
plan for the burglary. Battle eventually explained that Neal and
Left Eye told him he could take whatever was lying around the
house as long as he “didn’t bother with what their intentions
were.” He explained that he didn’t know about their full
intentions — i.e., the full plan of the operation. But he then said
Neal told him they weren’t really interested in much of what
was inside the house, since they were going to try to take the
victims’ identities. Left Eye also told him about “trying to take”
the victims’ house. This colloquy ensued:

“HEARD: You mean take their house lift it up and
take it somewhere?

“BATTLE: No.

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 PEOPLE v. BATTLE
Opinion of the Court by Cuéllar, J.

“HEARD: How?

“BATTLE: Basically, like just . . .

“HEARD: Get rid of them and just take the house?

“BATTLE: Well, something like that. I didn’t know
...

“HEARD: Look at me. Does anything on my face say
that I’m shy or anything?

“BATTLE: No. I’m just . . .

“HEARD: I’ve been doing this for thirty years.

“BATTLE: I’m just nervous.

“HEARD: And I don’t blame you for being nervous
and you know what, I’m sitting in this chair. I’m not
sitting in that chair. If I’m sitting in that chair, I’d
be nervous too. Because you know there’s something
you need to understand Tommie is you’re in a hole
right now.

“BATTLE: I know.

“HEARD: And you know what Tommie you got to
stop digging. Don’t dig no more, okay? This will
because once I write my report, I can’t promise to do

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anything for you because if my boss found out that I
promised you something that was untrue, I’d be in
trouble. Tommie I’ve been doing this too long okay?
Now I worked the burglary detail for many, many
years. I worked the homicide detail for three and a
half and you are fortunate enough that in this
department these homicide detectives they’re
working homicide. Why? Because they’re the best of
the best. They are not stupid. You can’t see stupid
written across their forehead, okay? So, let’s go back.
Their intentions?

“BATTLE: Their intentions was to take their credit.

“HEARD: Take their house?

“BATTLE: Yeah, Neil had mentioned a couple of
times that he had hookup at DMV where he’d be able
to use like the people’s credit cards.”

Following this exchange, investigator Heard asked Battle what
the plan was for the victims; Battle responded that he had
nothing to do with that. He explained that he had concerns that
something bad would happen to the victims, but that he didn’t
know what.
Investigator Heard then shifted interview tactics. Using
a mock polygraph question, he asked whether Battle had
suspected before November that Neal planned on killing the
victims. Battle denied having any suspicions, and this exchange
followed:

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“HEARD: No. No. But you have to understand,
okay? You’re in the hole. My job is just to verify that
you tell me the truth.

“BATTLE: Okay.

“HEARD: I don’t care if they said something and you
thought oh my God is that what they’re going to do
because as long as you’re not involved in that, that’s
all that’s important but the problem is that if I was
to ask you on the polygraph exam see we’re going to
run with November thirteenth but the polygraph
question is before you arrived at that house the day
that this thing went down okay?

“BATTLE: Uh huh.”

Finally, as investigator Heard pressed further on Battle’s
knowledge about a plan to kill the victims, Battle admitted he
knew the victims would go “missing for a while.” In the
exchange that ensued, investigator Heard brought up Battle’s
godson several times:

“HEARD: Missing for a while? What does that
mean?

“BATTLE: That’s all [Neal] said.

“HEARD: I don’t understand that. See now, see I’ve
worked the homicide detail for three and a half
years. You are, you are no dummy, okay? You’re no

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dummy. Are you telling me back in August when
you had this conversation that you became
concerned at that time that those people were going
to be killed by someone else? Is that a yes, or no?

“BATTLE: Yes, sir.

“HEARD: Okay. Got it. Now . . .

“BATTLE: It’s not like I could back out though at
that time.

“HEARD: I understand.

“BATTLE: Because if, if they tell me you know in
so many words that they’re basically going to do
that if they can do that to them you know.

“HEARD: They can do it to you?

“BATTLE: Yeah.

“HEARD: And your godson? Let me make sure
because I don’t want to put words in your mouth
because I’d like to write something down if you'll
allow me. In August of this year, two, thousand?

“BATTLE: Yes, sir.

“HEARD: You became aware of this plan to go hit
this house, is that correct?

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“BATTLE: Yes, sir.

“HEARD: Take the car. Is that a yes?

“BATTLE: Yes, sir.

“HEARD: Take their credit?

“BATTLE: Yes, sir.

“HEARD: Their identity?

“BATTLE: Yes, sir.

“HEARD: Their house?

“BATTLE: Yes, sir.

“HEARD: And kill them?

“BATTLE: Yes, sir.

“HEARD: Is that a yes, sir?

“BATTLE: Yes, sir.

“HEARD: Okay. Got it. Now what happens if you
would have backed out at that point once you found
out in August they were going to kill them?

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“BATTLE: I didn’t know what was going to happen.
I swear. I’m telling the truth.

“HEARD: You got a godson. You got a godson to
worry about. Now I’m glad that's out. That’s a
question I don't have to ask. I can just tell them you
told me the truth about that. Can I write that down?

“BATTLE: Yes, sir.

“HEARD: Okay. Eleven, twenty knew I want you
to see what I’m writing knew in August two,
thousand the plan okay and that was the plan.
Number one?

“BATTLE: Yes, sir.

“HEARD: Take ID, Number two take car. Number
three take home. Number four they said you could
take whatever was in the house?

“BATTLE: Yes, sir.

“HEARD: Valuables. And number five kill the
residents. I won’t put anything down. I won’t put
words in your mouth. You knew in August of two,
thousand the plan, five things take their ID, take
their car, take their home, take their valuables, and
kill the two residents is that correct?

“BATTLE: Yes, sir.”

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A little later in the interview, investigator Heard had Battle
reiterate his admission that, as early as August, he knew there
was a plan to kill the Demkos.
At trial, the prosecutor argued Battle’s statements to
investigator Heard, as well the statements to Detectives Gilliam
and Pacifico, were voluntary and moved to admit them. The
court conducted an evidentiary hearing where the three officers
and Battle testified, and it listened to the audio recordings of the
custodial interviews. After the hearing, Battle filed a response
to the prosecution’s motion, requesting that the court exclude
his custodial statements from trial because they were
involuntary. The trial court held that all of Battle’s statements
to law enforcement were voluntary and thus admissible. It
reached this holding after concluding, among other things, that
officers did not threaten Battle or promise him anything, and
instead merely urged Battle to tell the truth.
2. Analysis
Both the federal and state Constitutions bar prosecutors
from introducing into evidence a defendant’s involuntary
statement to government officials. (People v. Holloway (2004)
33 Cal.4th 96, 114 (Holloway).) This prohibition bars the
admission of an involuntary confession, as well as an
involuntary admission. (People v. Haydel (1974) 12 Cal.3d 190,
197.) In determining whether a statement is involuntary, “we
consider the totality of the circumstances to see if a defendant’s
choice to confess was not ‘ “ ‘ “essentially free” ’ ” ’ because his
will was overborne by the coercive practices of his interrogator.”
(People v. Spencer (2018) 5 Cal.5th 642, 672 (Spencer).) Coercive
police conduct includes physical violence, threats, direct or

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implied promises, or any other exertion of improper influence by
officers to extract a statement. (People v. Linton (2013) 56
Cal.4th 1146, 1176 (Linton).) The presence of coercion is a
necessary, but not always sufficient, predicate to finding a
confession was involuntary. (People v. Caro (2019) 7 Cal.5th
463, 492.) We also consider other surrounding circumstances
apparent from the record, including both the details of the
interrogation and the characteristics of the accused. (Ibid.)
When a defendant challenges the admission of a
statement on the grounds that it was involuntarily made, the
state bears the burden of showing by a preponderance of the
evidence that a defendant’s statement was, in fact, voluntary.
(See Linton, supra, 56 Cal.4th at p. 1176.) On appeal, we accept
the trial court’s factual findings as to the circumstances
surrounding the confession, provided they are supported by
substantial evidence, but we review de novo the ultimate legal
question of voluntariness. (See People v. Scott (2011) 52 Cal.4th
452, 480.) On de novo review, we conclude that Battle’s
admission was voluntary.
We begin by noting that Battle’s testimony at the
suppression hearing undercuts his claim on appeal. On direct
examination, investigator Heard came up only once, and only
incidentally (i.e., as part of a discussion of how much sleep
Battle had gotten prior to the polygraph examination). On
cross-examination, Battle testified that he’d done the polygraph
examination voluntarily, and that he never told investigator
Heard at any point that he wanted to stop. By contrast, Battle
testified extensively about Detectives Gilliam and Pacifico and
their apparently coercive interview tactics. The absence of
comparable testimony regarding investigator Heard gives us
confidence that none of the officer’s interrogation tactics coerced

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Battle into admitting anything. (See People v. Rundle (2008) 43
Cal.4th 76, 120 [defendant’s own testimony at suppression
hearing established that his decision to confess was “completely
separate from any representations made by the officers”]; People
v. Belmontes (1988) 45 Cal.3d 744, 774 [similar].)
Also undercutting Battle’s claim are the various indicia of
voluntariness that he doesn’t dispute, and in fact largely admits
on appeal. Battle makes no allegation that he suffered any
physical abuse. The court found that Battle — who was 26 years
old at the time of the interviews — was “a very articulate,
intelligent man.” Investigator Heard didn’t physically restrain
Battle. Battle didn’t request an attorney or express an
unwillingness to speak with investigator Heard. He knew he
could stop the examination “at any time.” The entire process
was not particularly long, totaling between three and three and
a half hours. There were breaks during the interview and Battle
was given water. And the trial court found that Battle was not
exhausted during the interviews, but instead was “cogent” and
“maintain[ed] a very, very consistent tone of voice, manner of
talking, [and] coherency through[out] the interviews.” These
circumstances of the interview and the accused buttress the
trial court’s conclusion that Battle’s statements to investigator
Heard were voluntary. (See, e.g., People v. Mendez (2019) 7
Cal.5th 680, 698–699 (Mendez); Spencer, supra, 5 Cal.5th at pp.
672–674.) And they readily distinguish this case from those
cases where we have found coercion. (See, e.g., People v. Neal
(2003) 31 Cal.4th 63, 84.)
Battle nonetheless argues that his admissions to
investigator Heard — particularly that he knew there was a
plan to kill the Demkos — were involuntary because of what
investigator Heard said to him. It’s true that, as Battle

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generally argues, investigator Heard repeatedly questioned
whether he was telling the truth and insistently probed whether
he knew there was a plan to kill the Demkos. But “[t]he
business of police detectives is investigation, and they may elicit
incriminating information from a suspect by any legal means.”
(People v. Jones (1998) 17 Cal.4th 279, 297.) Therefore, officers
can, as investigator Heard did, exhort a suspect to tell the truth
and repeatedly express that they believe a suspect is lying. (See,
e.g., Spencer, supra, 5 Cal.5th at p. 674; Linton, supra, 56
Cal.4th at p. 1178.) And, just as investigator Heard did, officers
can engage in “vigorous,” repetitive questioning of suspects
(People v. Williams (2010) 49 Cal.4th 405, 444 (Williams)) meant
to ascertain a defendant’s involvement in crimes (see Linton,
supra, 56 Cal.4th at p. 1178). Given Battle’s explanations that
Neal and Left Eye had told him in advance about the burglary
plan and that he could “get basically whatever was lying around
the house as long as [he] didn’t bother with what their intentions
were,” it was natural that investigator Heard then doggedly
asked if Battle knew the plan was to kill the Demkos (see
Linton, supra, 56 Cal.4th at p. 1178; Williams, supra, 49 Cal.4th
at p. 447) — particularly as Battle was evasive.
Moreover, investigator Heard’s exhortations and
persistent questions were relatively “low key.” (Linton, supra,
56 Cal.4th at p. 1178; see Spencer, supra, 5 Cal.5th at p. 673.)
Nothing in Battle’s responses indicate he was unable to parry
the “ ‘various thrusts and efforts . . . to . . . catch him in what
[Heard] perceived as untruths or lies.’ ” (People v. McWhorter
(2009) 47 Cal.4th 318, 358.) Battle was evasive on whether he
knew details of the burglary plan. This evasion “suggests . . . a
still operative ability to calculate his self-interest in choosing

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whether to disclose or withhold information.” (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 58 (Coffman).)
We see no basis to conclude the interrogation overbore
Battle’s will. Battle ultimately did admit to investigator Heard
that he learned in August that the plan involved killing the
Demkos. But as the Attorney General suggests, Battle’s
admission also potentially reflects a desire to cooperate for the
purposes of exculpating himself. Indeed, through the limited
admission that he knew of the plan sometime in advance, Battle
continued to tell a version of events that minimized his
involvement: He immediately told investigator Heard that,
despite his knowledge, there’s no way he could have backed out,
because Neal and Left Eye could have killed him. (Cf. Holloway,
supra, 33 Cal.4th at p. 116.) This is consistent with the
narratives Battle gave to the detectives prior to his interview
with investigator Heard. “[He] had the wherewithal to
articulate — time and again — a version of events that
minimized his involvement. Along the way, he changed his
story from one emphasizing that he knew nothing about the
offense[s], to one admitting he was at the [burglary with a group
of coconspirators] but maintaining he had not participated in
the killing[s]” and had no knowledge of a plan to kill the victims.
(Spencer, supra, 5 Cal.5th at p. 673.) And it’s consistent with
Battle’s repeated minimizations after he made the admission he
now complains of: He changed his story from one denying being
present at the murder scene to one admitting he was at the
murder scene but accusing another participant of committing
the murders, to one admitting he stabbed the victims but while
being forced at gunpoint by one of his coconspirators, to one
admitting that he burglarized the victims’ home but accusing a

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housemate of his — a completely different perpetrator than the
one he had initially described — of committing the murders.
Given these circumstances, we may readily reject Battle’s
specific claims regarding the three interrogation tactics that he
identifies as improper.
Battle first argues investigator Heard made an implied,
time-sensitive promise of lenity by telling him he should “stop
digging” and stating that “once I write my report, I can’t promise
to do anything for you because if my boss found out that I
promised you something that was untrue, I’d be in trouble.” He
contends investigator Heard’s later, repeated references to
“writ[ing]” down Battle’s recitations of the burglary plan
indicate the officer was, in the moment, communicating his
intent to carry out his end of the bargain. But no suspect would
have reasonably understood investigator Heard’s statements as
promising “any particular benefit.” (Holloway, supra, 33
Cal.4th at p. 116.) Although it’s not entirely clear what exactly
investigator Heard meant when he briefly mentioned
“promis[ing]” something, it’s certainly clear that investigator
Heard wasn’t making a specific promise of leniency. (See
Coffman, supra, 34 Cal.4th p. 61.) He gave no indication that
he or anyone else would grant Battle anything if Battle gave
more details about the burglary plan. (See Holloway, supra, 33
Cal.4th at p. 116 [similar]; People v. Carrington (2009) 47
Cal.4th 145, 174 (Carrington) [similar].) And, in any event, “I
can’t promise to do anything for you” after I write my report, is
not, as Battle asserts, the same as affirmatively stating, “I
promise to do something for you if you do provide further
information before I write my report.” Warning arrestees that
the possibility of help disappears if they do not act is not the
same as promising to help if they do act.

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At most investigator Heard was, during the broader
exchange in which he made the “promise” statement, simply
informing Battle of the obvious: Cooperating and being honest
would generally be beneficial to Battle, whereas “digging”
deeper into a lie and being caught in it down the line would be
detrimental. Our cases make clear that such an interrogation
strategy “did not cross the line from proper exhortations to tell
the truth into . . . promises of leniency.” (Holloway, supra, 33
Cal.4th at p. 115.) Officers may comment on the “ ‘realities’ ” of
a suspect’s position and the choices available to him (id. at p.
116), including by informing him that “full cooperation might be
beneficial in an unspecified way” (Carrington, supra, 47 Cal.4th
at p. 174; see id. at p. 171).
We likewise easily dispose of Battle’s second complaint:
that investigator Heard seriously misled him regarding his
potential criminal liability. Battle focuses on investigator
Heard’s statement that “I don’t care if they said something and
you thought oh my God is that what they’re going to do because
as long as you’re not involved in that, that’s all that’s important
. . . .” (Italics added.) According to Battle, this statement
communicated that Battle could acknowledge knowing of the
murder plan without getting in bigger trouble, so long as he
hadn’t participated in the actual killings. Yet, as he observes,
any experienced homicide investigator would have known that
such an admission could be highly incriminating: It could
implicate Battle as an accomplice in premeditated and
deliberate murder and serve as proof to support special
circumstances for felony murder, multiple murder, and
aggravating personal culpability.
Battle’s argument fails, though, because he takes
investigator Heard’s statement out of context. Immediately

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before the quote Battle relies on, investigator Heard stated his
job was just to verify that Battle was telling the truth.
Immediately after the quote, investigator Heard stated, “but the
problem is that if I was to ask you on the polygraph exam see
we’re going to run with November thirteenth, but the polygraph
question is before you arrived at that house the day that this
thing went down, okay?” It’s clear from this context that
investigator Heard was merely informing Battle that, if Battle
had known in advance about the murder plan but denied this
when asked during the polygraph, he’d fail the question.
“[T]hat’s all that’s important” fits naturally into this exchange.
In other words, he simply told Battle it was no use to lie about
his prior knowledge, not that admitting such knowledge had
minimal legal consequences. (Cf. Carrington, supra, 47 Cal.4th
at p. 172 [not coercive that officer told defendant admitting to
the murder “ ‘wouldn’t make any difference’ ” since, in context,
the statement reflected the overwhelming evidence].)
Even assuming investigator Heard’s statement did refer
to legal consequences, it had no proximate causal connection to
Battle’s subsequent admission. (People v. Musselwhite (1998) 17
Cal.4th 1216, 1240.) That readily distinguishes this case from
People v. Cahill (1994) 22 Cal.App.4th 296, the chief case upon
which Battle relies. Cahill also concerned a burglary-murder.
There, a homicide investigator provided a detailed discussion of
California law and unmistakably conveyed a clear, false
message: The defendant could avoid being “tried for first degree
murder” if “he admitted that he was inside the house and denied
that he had premeditated the killing.” (Id. at p. 314; see id. at
p. 315 [such an admission would amount to a confession of felony
murder].) The court explained that the investigator’s false
statement proximately caused the confession of the young

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defendant — who up until this point had, in the face of vigorous
questioning and confrontation with damning facts, resisted
conceding his presence in the home — because it might have
offered him a false hope he could be cleared of the most serious
charges against him. (Id. at p. 317.)
Yet here, investigator Heard’s vague, passing comment
communicated “no such misleading assurances” (Holloway,
supra, 33 Cal.4th at p. 117), and plainly had no effect on Battle.
Immediately after investigator Heard’s apparently misleading
statement, Battle did not change the story he was then
telling — i.e., that he had exited the car on the way to the desert,
with the Demkos still alive and in the trunk. And as the
Attorney General observes, if investigator Heard’s comments
somehow caused Battle to admit knowing about the murder
plan, they would have also prevented him from admitting
further involvement — since they allegedly indicated that
Battle would not be in bigger trouble as long as he hadn’t
participated in the murders. But Battle eventually admitted
not only that he knew of the murder plan, but also that he was
present at the murder scene and stabbed the victims himself.
Finally, Battle argues that investigator Heard
inappropriately played on Battle’s fears for the safety of himself
and his godson Marquis by misleadingly suggesting those fears
justified Battle’s participation in the burglary plan, even if he
knew the victims would be murdered. He also argues, in
passing, that the statements about Marquis could be perceived
as an indirect threat that others might harm Marquis if Battle
continued to implicate coconspirators and didn’t take full
responsibility for the crimes.

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Neither contention withstands scrutiny. Nothing in
investigator Heard’s reference to Marquis could be interpreted
as a threat. And nothing about investigator Heard’s discussion
of Marquis was inappropriate. Investigator Heard could have
discussed Marquis in order to build a “rapport” with Battle and
communicate he was trying to better understand Battle’s
motivation for participating in the crimes. (Williams, supra, 49
Cal.4th at p. 447; see Carrington, supra, 47 Cal.4th at pp. 171,
174.) He also could have referenced Marquis as a permissible
followup to Battle’s own discussion of Marquis. (See Spencer,
supra, 5 Cal.5th at p. 675.) Earlier in the interview, Battle
brought up Marquis several times. Right before investigator
Heard referenced him, Battle explained that he couldn’t back
out once he learned from Neal and Left Eye about the murder
plan, because “if they tell me you know in so many words that
they’re basically going to do that[,] if they can do that to them[,]
you know.” Investigator Heard understandably interjected by
articulating what Battle implied: If his coconspirators could
murder the victims, they could murder him and Marquis. (See
Linton, supra, 56 Cal.4th at p. 1178.)
B. Admission of Statements to Detectives Gilliam
and Pacifico
Battle argues that the trial court erred by declining to
order the redaction of statements he made during his custodial
interviews with Detectives Gilliam and Pacifico. We conclude
that Battle identifies no reversible error.
1. Background
After the trial court ruled the tapes and transcripts of
Battle’s custodial interrogations were admissible, it held that
certain statements had to be redacted before the evidence could

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be presented to the jury: namely, all mention of Battle’s “being
in prison, being on parole, having priors for burglary, shooting
other people, stabbing other people, [and] being an ex-con.” The
prosecution redacted the tapes and transcripts accordingly. But
defense counsel moved for the court to order further redaction of
two remaining sets of statements from Battle’s custodial
interviews with police detectives.
First, defense counsel sought to redact several comments
that, according to counsel, indicated Battle had previously
committed burglary. At a hearing on March 17, 2003, defense
counsel pointed the trial court to the following exchange
between Battle and Detective Gilliam during the initial
custodial interview. The exchange took place after the detective
asked Battle why the burglary group approached the Demkos’
home from different directions:

“BATTLE: Ah, me, I don’t know he, Neil was
basically trying to tell me that, that, that I looked
stressed out.

“GILLIAM: Ah huh.

“BATTLE: And um that I should, I’ve done it before
ah I, I shouldn’t sweat it cause he said I was looking
all clammy and stuff. I didn’t really pay that much
attention.

“GILLIAM: Did you guys ah . . .

“BATTLE: Because I always look kind of shaky . . .

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“GILLIAM: Ah huh.

“BATTLE: Before I do something.”

Defense counsel argued that Battle’s statement that he always
looked shaky before doing something “created a definite
inference that there’s been a prior,” but the court rejected this
argument without comment. The trial court did, however, say
that defense counsel had a point about Battle’s comment “I’ve
done it before.” The prosecutor explained that this comment
could be interpreted as Battle recounting how Neal told him he
didn’t have to worry because Neal had committed burglary
before, and therefore didn’t necessarily refer to Battle being the
one who had “done it before.” After reading the transcript and
considering the context of the comment, the trial court agreed
with the prosecutor and further noted that Battle didn’t say
what he had “done.” On this basis, the court found that nothing
was “improper” about Battle’s comment. Given the opportunity
to respond for the record, defense counsel argued that the
comment, taken in context, indicated Neal said Battle shouldn’t
be stressed because Battle had done burglary before; then,
Battle said he didn’t pay “much attention” to this advice because
he always looked “shaky” before doing something. Defense
counsel urged that this provided an inference that Battle was an
experienced criminal. The trial court stated this was “one
interpretation” and declined to strike the comment.
At the hearing on March 18, defense counsel sought to
redact additional statements made by Battle during his
November 27 interrogation by detectives, claiming these
statements also implicated prior burglaries. Counsel first
objected to the admission of Battle’s response to Detective

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Pacifico’s question about why Battle had been asked to go back
into the victims’ house after the crimes. Battle responded saying
that he didn’t know because, as he had explained, “I never did
anything I never did anything like this, especially with people.
I never did anything with anybody.” The trial court refused to
strike the statement, finding the probative value outweighed
the prejudice.
Counsel next objected to Battle’s statement a little later in
the interrogation where, responding to Detective Pacifico’s
question asking why Battle hadn’t covered his face with
pantyhose or worn a beanie (like his fellow coconspirators)
during the burglary, Battle stated, “Huh, like I said, I’d never
uh, worked with a team or anything like that before. . . . I, I was
just used to having gloves.” Counsel argued this statement,
together with the prior identified comment, implied that Battle
had done burglaries in the past while using gloves. The court
disagreed. It questioned whether, given the prosecution’s
position that Battle lied during this confession, it made any
difference that this statement was being admitted. It ultimately
concluded there was nothing particularly damning about the
statement — observing that if Battle had said “ ‘When I did my
other burglaries, I did it this way,’ well, then maybe that’s
something to talk about” — and allowed the statement because
its probative value outweighed its prejudicial effect.
Finally, counsel objected to three statements Battle made
while describing the burglary and its aftermath. In describing
his entry into the Demkos’ home, Battle said, “The man was
awake, and I had never break, broken into a house with
somebody that was there”; in describing how he gained access to
the house, he said, “I mean old couples, they usually leave the
back door unlocked, if they have a fenced in area and have dogs

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. . . I’m just, I’m just used to that”; and, in describing what
happened when he got back to the Christian Living Home, he
said, “I’m practically in tears when I get back to the house, cause
I guess that I’ve never did anything with people in the house
before.” Defense counsel argued these statements clearly
implied not only that Battle had previously committed
burglaries, but also that he had previously burglarized elderly
people’s homes — an implication counsel asserted was
irrelevant and highly prejudicial. The court reasoned that it
was a stretch to interpret these statements as Battle saying, “I
did a prior burglary,” and it admitted the statements after
determining their probative value outweighed their prejudicial
effect.
In addition to the custodial statements potentially
implicating prior burglaries, defense counsel also sought to
redact Battle’s brief discussion of his sword collection during the
November 26 interrogation. The relevant exchange began after
Battle denied participating in the burglary and stated he had
simply been asked to get rid of the TV and VCR:

“BATTLE: So, and I was already, because I needed
some money, I was already taking my movies to the
pawn shop cause I had a lot of movies to pawn or, or
sell. I even had some, I had started, ah, a blade
collection again but I had to get rid of them, so I
pawned those as well.

“GILLIAM: What’s a blade collection?

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Opinion of the Court by Cuéllar, J.

“BATTLE: Well, I had ah, ah Dragon like a knife
type of sword and I had ah, ah, ah antique like ah, ah
Irish sword.

“GILLIAM: Just two?

“BATTLE: Yeah, just two.

“GILLIAM: Where did you pawn those at?

“BATTLE: Um I don’t know the name of it, but it’s
on 7th St. . . .

“GILLIAM: Did you pawn it in your name?

“BATTLE: Yes.”

Defense counsel first objected to the admission of the
sword collection evidence on the ground that it was completely
irrelevant to the case. The trial court responded that “[t]here’s
a lot of stuff in this interview that was irrelevant.” Counsel then
argued the evidence should be excluded under Evidence Code
section 352 because it created an inference Battle was an
experienced user of knives with a large blade collection, making
it more likely (in the eyes of the jury) that he perpetrated the
stabbings of the Demkos. The court rejected this argument,
finding that the probative value of the sword statement evidence
outweighed its prejudicial effect.
2. Analysis
Under Evidence Code section 350, only relevant evidence
is admissible. Relevance is a low threshold. (See Evid. Code, §

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210 [“ ‘Relevant evidence’ means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action”].)
Under Evidence Code section 352, though, even relevant
evidence is inadmissible “if its probative value is substantially
outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” And under Evidence Code section
1101, subdivision (a), “evidence of a person’s character or a trait
of his or her character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of his or
her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” We review the trial court’s
rulings on relevance and the admission of evidence under
Evidence Code sections 352 and 1101 for abuse of discretion.
(People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Battle argues the trial court abused its discretion because,
as defense counsel urged at trial, the statements concerning the
sword collection and potentially implicating prior burglaries
were irrelevant and unduly prejudicial. He also argues the court
abused its discretion because these statements violated
Evidence Code section 1101, subdivision (a)’s prohibition
against propensity character evidence, and he further contends
that the admission of these statements deprived him of his right
to a fair trial under the due process clause of the Fourteenth
Amendment. There is no dispute that Battle’s Evidence Code
section 352 objection preserved his federal due process claim for
appeal, even though he didn’t raise the specific claim below.
(People v. Partida (2005) 37 Cal.4th 428, 433–439.) But the
parties disagree whether Battle preserved any character-

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evidence objection. We assume that Battle preserved the
objection. But we conclude the trial court’s decision to admit the
statements concerning the sword was not erroneous, and that
any error in its decision to admit the statements implicating
prior burglaries was harmless.
a. Sword Collection Statements
The sword collection statements that Battle challenges
clearly met the minimal threshold Evidence Code section 351
sets for relevance. Admittedly, neither the prosecution nor the
trial court offered any particular rationale for the statements’
relevance. In fact, the trial court twice responded to Battle’s
objection to the statements by remarking that “a lot of” things
in the interviews were “irrelevant.” But we don’t take that to
mean that the court stated that the evidence was wholly
irrelevant. The trial court’s phrasing, although certainly not
model language, is better understood in context as an
observation that the sword statements, like much of what Battle
had discussed in the interviews, was irrelevant to the actual
burglary and murders. In any event, our task is to “review the
[trial court’s] ruling, not [its] reasoning” or the arguments
below; “if the ruling was correct on any ground, we affirm.”
(People v. Geier (2007) 41 Cal.4th 555, 582.) Here, a major part
of the jury’s task at trial was to evaluate Battle’s shifting
statements, and to decide what, if anything, was true. It
therefore was not an abuse of discretion for the court to decide
that all of the things Battle said were relevant to the jury’s
determination of what to believe.
More specifically, the sword statements were relevant to
Battle’s early versions of events minimizing his involvement in
the burglary — versions the prosecutor argued were dishonest

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and showed Battle was engaged in a coverup in the custodial
interviews.11 Battle’s mention of his sword collection related to
his initial discussion of how he “innocently” ended up with the
Demkos’ TV and VCR. In other words, Battle brought up the
swords in the context of his exculpatory statements for why he
had the Demkos’ property, which in turn formed a key piece of
Battle’s slowly unfolding story regarding his involvement in the
crimes. For these reasons, we find readily distinguishable the
two knife-evidence cases Battle relies on. Neither involved
evidence that related in any way to the defendants’ discussion
of their involvement in the crimes. (See Alcala v. Woodford (9th
Cir. 2003) 334 F.3d 862, 886–888; McKinney v. Rees (9th Cir.
1993) 993 F.2d 1378, 1383 (McKinney).)
Additionally, the admission of the sword statements did
not create undue prejudice under Evidence Code section
352 — certainly not to the extent that their admission
amounted to an abuse of discretion. (See People v. Jones, supra,
17 Cal.4th at p. 304 [“We will not disturb a trial court’s exercise
of discretion under Evidence Code section 352 ‘ “except on a
showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in
a manifest miscarriage of justice” ’ ”].) Battle mentioned his
sword collection very briefly — during only a few seconds out of
the many hours of the custodial interviews — and in passing.

11 In some sense, we can understand the prosecution’s
strategy of showing Battle’s false statements as suggesting
consciousness of guilt. Battle’s later explanation for why he
lied — fear of and desire to protect Washington — does not
change this fact. (People v. Hughes (2002) 27 Cal.4th 287, 335.)

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These considerations, and that Battle referred to the swords
merely as part of his initial exculpatory version of events,
strongly indicates the jury was unlikely to draw any inference
that Battle had a special interest in using blades that made it
more likely he was the one who killed the Demkos with a knife.
And since the murder weapon was a knife and not a sword, there
is no reason to believe, as Battle briefly suggests, the jury might
have considered Battle’s decision to pawn the swords as showing
he used them in the crimes and his consciousness of guilt. The
context of the sword statement easily distinguishes this case
from the chief authority Battle relies on, McKinney, where the
prosecution featured the knife evidence prominently and with
the overt, prejudicial intent of casting the defendant in a bad
light. (McKinney, supra, 993 F.2d at pp. 1385–1386 & fn. 10.)
Assuming Battle has preserved for appeal an objection to
the statements under Evidence Code section 1101, subdivision
(a), that argument fails on the same grounds. It’s clear from
context that the sword statements were not admitted to
establish conduct in conformity with a character trait or prior
act. (See People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th
335, 413 [similar].)
Many of the considerations described above lead us to
reject Battle’s claim that the admission of the sword statements
“so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” (Donnelly v. DeChristoforo
(1974) 416 U.S. 637, 643.) Nothing in the record indicates the
admission of the statements was “so inflammatory as to prevent
a fair trial.” (Duncan v. Henry (1995) 513 U.S. 364, 366.)

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b. Statements Implicating Prior Burglaries
We assume, without deciding, that the trial court erred
under Evidence Code section 352 in admitting the statements
that Battle identifies as implicating prior burglaries. But we
hold that any such error was harmless as a state law matter
(People v. Watson (1956) 46 Cal.2d 818, 836) and constitutional
matter (Chapman v. California (1967) 386 U.S. 18, 24). Battle
fails to show that there was any probability he would have
received a more favorable result had the court redacted these
statements.
The evidence presented of Battle’s guilt was strong. His
stories of what happened shifted dramatically during each
custodial interview — and the prosecution was able to use these
shifts to show Battle lied to officers and was attempting to
falsely exculpate himself. And although his story kept shifting,
key facts he revealed along the way matched or were
corroborated by other evidence presented, including particular
details of the burglary scene, the autopsy findings, and forensic
reports of the murder scene; testimony from his friends and
acquaintances; and items from the burglary scene that were
either found in Battle’s possession or linked to him.
Battle fails to show that, in the face of this strong
evidence, the statements implicating prior burglaries prejudiced
him. Common sense dictates that any risk of prejudice was
marginal at best, particularly given (a) Battle’s admission,
contemporaneous with the statements allegedly implicating
prior burglaries, that he had in fact burglarized the Demkos’
home; and (b) Battle’s later admission that he was the one who
stabbed the Demkos.

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IV. PENALTY PHASE ISSUES
A. Denial of Defendant’s Request for a Lingering
Doubt Instruction
Battle argues that the trial court erred in refusing to
instruct the jury at the penalty phase on lingering doubt. (See
People v. Gay (2008) 42 Cal.4th 1195, 1218 [“ ‘The lingering
doubts of jurors in the guilt phase may well cast their shadows
into the penalty phase and in some measure affect the nature of
the punishment’ ”].) Battle requested the following instruction:
“It is appropriate for the jury to consider in mitigation any
lingering doubt it may have concerning defendant's guilt.
Lingering or residual doubt is defined as that state of mind
between beyond a reasonable doubt and beyond all possible
doubt.” The trial court refused to give the instruction but
acknowledged defense counsel was permitted to argue lingering
doubt to the jury. And defense counsel’s penalty phase opening
argument highlighted lingering doubt as one of the “three
themes for life.” Although conceding this court has previously
held otherwise, Battle argues he was entitled to a lingering
doubt instruction, violating his constitutional rights.
We reject Battle’s claim that the trial court erred in
refusing to instruct the jury on lingering doubt. We have
previously concluded that “the standard instructions on capital
sentencing factors, together with counsel’s closing argument,
are sufficient to convey the lingering doubt concept to the jury.”
(People v. Hartsch (2010) 49 Cal.4th 472, 513; see also People v.
Jackson (2016) 1 Cal.5th 269, 369–370 [“Neither state nor
federal law requires a trial court to instruct a penalty jury to
consider lingering doubt as a factor in mitigation”].) Battle does
not dispute that the trial court instructed the jury with the

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standard sentencing factors or that his attorney argued
lingering doubt extensively. 12

B. Restriction on Execution-impact Evidence as
Given in CALJIC No. 8.85
Battle argues that the trial court erred in instructing the
jury with the following language from CALJIC No. 8.85, factor
(k): “Sympathy for the family of the defendant is not a matter
that you can consider in mitigation. Evidence, if any, of the
impact of an execution on family members should be
disregarded unless it illuminates some positive quality of the
defendant’s background or character.”
Battle acknowledges that the instruction correctly states
the law under People v. Ochoa (1998) 19 Cal.4th 353 (upon which
CALJIC No. 8.85, factor (k) is based), and subsequent cases
(see, e.g., People v. Smith (2005) 35 Cal.4th 334, 367 [“[E]vidence
that a family member or friend wants the defendant to live is
admissible to the extent it relates to the defendant's character,
but not if it merely relates to the impact of the execution on the
witness”]). But he contends the instruction was faulty as
applied to the “unique circumstances of his case” because its
“ambiguous” language unconstitutionally restricted the jury
from giving effect to a significant part of the family impact
testimony he presented: the testimony from his biological
family, who had been estranged from him for nearly his entire

12 Based on our resolution of this claim, we deny Battle’s
motion requesting that we take judicial notice of various records
in People v. Edwards (2013) 57 Cal.4th 658, 765 (denying
lingering doubt instruction on similar grounds).

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life. Biological family members testified that they loved him,
had fond memories of him as a young child, and wanted to
reestablish a relationship with him. According to Battle, the
jury could have had difficulty giving weight to this
“constitutionally relevant” testimony under CALJIC No. 8.85,
factor (k), because no obvious link existed between the family’s
feelings — based on the Battle they knew as a very young
child — and positive aspects of Battle’s character.
Battle’s arguments lack merit. Contrary to his assertion,
there was nothing ambiguous about CALJIC No. 8.85, factor (k).
To the extent Battle rightly observes that the jury would have
struggled to give weight to the love and desire for reconnection
expressed by these family members, that doesn’t reflect a defect
in CALJIC No. 8.85, factor (k). Instead, it reflects how the
testimony did not represent appropriate mitigation evidence, as
it failed to provide any information about his positive qualities
beyond the age of four, and how CALJIC No. 8.85, factor (k)
thereby properly restricted its consideration by the jury.
Finally, we reject Battle’s alternative argument that
CALJIC No. 8.85, factor (k) is facially unconstitutional because,
by precluding the jury from considering sympathy for his family
as mitigation evidence, it violated the Eighth and Fourteenth
Amendments of the federal Constitution. As he acknowledges,
we have previously rejected similar claims (see, e.g., People v.
Williams (2013) 56 Cal.4th 165, 197–198), and we decline to
revisit our precedent.
C. Constitutionality of California’s Death Penalty
Law
Battle raises several constitutional challenges to
California’s death penalty scheme. We have rejected these

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Opinion of the Court by Cuéllar, J.

claims in prior cases, and Battle does not persuade us to
reconsider those decisions here. We reject Battle’s claims on the
merits, as follows:
The special circumstances enumerated in section 190.2,
which render a defendant eligible for the death penalty, are not
unconstitutionally overbroad. (People v. Eubanks (2011) 53
Cal.4th 110, 153; see also People v. Bell (2019) 7 Cal.5th 70, 130
[“ ‘Section 190.2 adequately narrows the category of death-
eligible defendants and is not impermissibly overbroad under
the requirements of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution’ ”].) The special
circumstances are not so numerous that they “fail to perform the
constitutionally required narrowing function.” (Williams,
supra, 49 Cal.4th at p. 469.)
Section 190.3, factor (a), which allows the jury to consider
the “circumstances of the crime,” does not result in the arbitrary
and capricious imposition of the death penalty. (People v.
Peoples (2016) 62 Cal.4th 718, 806.)
Battle also raises a host of arguments asserting that the
death penalty statute and its accompanying jury instructions
fail to set forth the appropriate burden of proof. These
arguments are unavailing, as we see no reason in this case to
revisit our previous decisions on this front. (Mendez, supra, 7
Cal.5th at p. 717 [a jury is not required to find death is an
appropriate punishment beyond a reasonable doubt; to find that
aggravating factors were proven beyond a reasonable doubt; or
to agree unanimously that a particular aggravating
circumstance exists]; People v. Boyce (2014) 59 Cal.4th 672, 724
[the trial court is not required to instruct that the prosecution
carries the burden of proof at the penalty phase, nor must it

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instruct that there is no burden of proof at the penalty phase; a
jury is not required to agree unanimously that unadjudicated
offenses were proven]; People v. Johnson, supra, 8 Cal.5th at p.
527 [the term “so substantial” does not make unconstitutionally
vague the instruction as to when jurors may impose the death
penalty; trial court is not required to instruct the jury to
presume that life is the appropriate penalty]; People v. Salazar
(2016) 63 Cal.4th 214, 256 [CALJIC No. 8.88’s instruction to
consider whether the death penalty is warranted under the
circumstances, rather than if it is the “appropriate” penalty,
does not violate the Eight and Fourteenth Amendments of the
federal Constitution]; Scott, supra, 61 Cal.4th at p. 407 [trial
court is not required to instruct the jury that it must return a
verdict of life without parole if the mitigating evidence
outweighs the aggravating evidence]; People v. Loy (2011) 52
Cal.4th 46, 78 [instructions don’t impermissibly fail to inform
jurors regarding the standard of proof and lack of need for
unanimity as to mitigating circumstances].)
Battle next argues that the trial court’s instructions on
mitigating and aggravating factors violated his constitutional
rights by using restrictive adjectives like “extreme” and
“substantial” in the list of mitigating factors, failing to omit
inapplicable sentencing factors, and failing to instruct that
mitigating factors are solely relevant as potential mitigators.
We have previously rejected these arguments. (Reed, supra, 4
Cal.5th at p. 1018 [using restrictive adjectives like “substantial”
and “extreme” to describe mitigating factors does not violate the
federal Constitution]; id. at p. 1017 [failing to omit inapplicable
sentencing factors does not violate the federal Constitution];
People v. Winbush (2017) 2 Cal.5th 402, 490 [trial court not

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required to instruct jury that mitigating factors are relevant
solely as potential mitigators].)
Similarly unavailing are Battle’s contentions that a jury is
required to make written findings. (People v. Mendoza (2011)
52 Cal.4th 1056, 1097 [“Written findings by the jury during the
penalty phase are not constitutionally required, and their
absence does not deprive defendant of meaningful appellate
review”].)
We have also determined that the federal Constitution
does not require intercase proportionality review (People v.
Williams (2016) 1 Cal.5th 1166, 1205), and California’s death
penalty scheme does not deny capital defendants equal
protection (People v. Rivera (2019) 7 Cal.5th 306, 348). Existing
international law also does not prohibit imposition of the death
penalty in the United States. (People v. Capers (2019) 7 Cal.5th
989, 1017.)
D. Cumulative Error
Battle raises a cumulative error claim regarding the
penalty phase. Because we have found no penalty phase errors,
there is no cumulative prejudice to consider.
V. DISPOSITION
We affirm the judgment.
CUÉLLAR, J.

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

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 PEOPLE v. BATTLE
S119296

Dissenting Opinion by Justice Liu

In Johnson v. California (2005) 545 U.S. 162 (Johnson),
the United States Supreme Court determined that this court
had established an “inappropriate yardstick by which to
measure the sufficiency of a prima facie case” at the first step of
analyzing a claim of racial discrimination in the exercise of
peremptory challenges. (Id. at p. 168; see Batson v. Kentucky
(1986) 476 U.S. 79, 96–98 (Batson) [establishing three-step
framework for analyzing such claims].) Johnson rejected this
court’s rule requiring a defendant to show at the first step a
“ ‘strong likelihood’ ” (i.e., it was “ ‘more likely than not’ ”) that
the disputed strike was motivated by race, and instead held that
an inference that “discrimination may have occurred [is]
sufficient to establish a prima facie case under Batson.”
(Johnson, at pp. 166–167, 173, italics omitted.) We have
described this as a “low threshold.” (People v. Scott (2015) 61
Cal.4th 363, 384 (Scott).)
Today’s opinion strays from this standard, if not in word
then in deed, by “relying on judicial speculation to resolve [a]
plausible claim[] of discrimination.” (Johnson, supra, 545 U.S.
at p. 173.) This is a dubious practice: “The Batson framework
is designed to produce actual answers to suspicions and
inferences that discrimination may have infected the jury
selection process. [Citation.] The inherent uncertainty present
in inquiries of discriminatory purpose counsels against
engaging in needless and imperfect speculation when a direct

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Liu, J., dissenting

answer can be obtained by asking a simple question.” (Id. at
p. 172.) Because “the sum of the proffered facts” in this case
readily “gives ‘rise to an inference of discriminatory purpose’ ”
(id. at p. 169), I respectfully dissent from today’s contrary
holding and judgment.
I.
As today’s opinion acknowledges, the racially charged
nature of this case is “significant” and “ ‘highly relevant to
whether a prima facie case existed.’ ” (Maj. opn., ante, at p. 31.)
Defendant Thomas Battle, a Black man, was charged with
kidnapping and killing two White victims. He was tried,
convicted, and sentenced to death by an all-White jury in 2003.
Defense counsel planned to introduce, and did introduce,
evidence that Battle had been the victim of racial discrimination
during his childhood as a mitigating factor in the penalty
determination. When the prosecutor struck Prospective Juror
J.B., a Black woman, he was aware that the defense planned to
present evidence of racial discrimination because defense
counsel had asked one prospective juror, “Now, hypothetically,
if there was something — I’m not saying this is going to come
up, I just want to present you with a possibility — that I
presented something from Mr. Battle’s childhood that — in
which he might have been the victim of racism, would that —
that would be offensive to you if I argued that?”
J.B. was qualified to serve as a juror in Battle’s trial. She
was 52 years old, had a master’s degree in school administration
and school psychology, and worked as an elementary school
teacher. She had previously served on a jury that reached a
verdict. She had been the victim of a violent robbery in her

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Liu, J., dissenting

home, and one of her sisters had previously been in local law
enforcement.
J.B. expressed a willingness to impose the death penalty
and indicated she would make a penalty judgment based on the
facts and evidence. In her questionnaire, she indicated she
neither favored nor opposed the death penalty and had no moral,
philosophical, or religious objections to the death penalty. She
said she would not automatically vote either for life or for death
and would instead consider and weigh all mitigating and
aggravating factors in the case. She thought Texas used the
death penalty too frequently, but California used it “about
right.” During voir dire, J.B. explained she could consider both
the death penalty and a life sentence. She said she wouldn’t
have a problem voting for death “as long as all the facts were
proven.” When the prosecutor asked if she could look at the
defendant and tell him death is the appropriate sentence, J.B.
responded, “I don’t have a problem with that. I’m my own
person. I don’t let anyone sway me right or left. I have to go by
what I feel.”
The court points to two statements in the record that it
contends “necessarily dispel any inference that discrimination
motivated [J.B.’s] excusal.” (Maj. opn., ante, at p. 44.) First, in
response to the jury questionnaire’s prompt asking what a
sentence of “death by lethal injection or death in the gas
chamber” would “mean to you,” J.B. answered: “Curel [sic].
Inhumane. Why?” This answer, in isolation, could have
provided a rationale for J.B.’s excusal. But upon questioning by
the prosecutor at voir dire, J.B. clarified that her comment was
addressed to the possibility that innocent people had been
executed in Texas: “I just felt that that was so inhumane to
execute someone for something they didn’t do.” The prosecutor

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 PEOPLE v. BATTLE
Liu, J., dissenting

responded, “Right. No. And I think everybody would agree with
you.” The prosecutor then asked J.B. whether “what happened
in Texas” would cause her to “say, Well, I know about perhaps
there have been some innocent people that have been put on
death row. I don’t want to make that mistake; I’m not going to
vote for death. It’s just easier. I will give him life without
parole?” J.B. said “No” and went on explain that she would
decide the matter based on “the law” and “what was proven.”
The prosecutor was not required to accept J.B.’s
statements at face value. But if the prosecutor had doubts about
J.B.’s explanation, those doubts are not part of the record. The
prosecutor had no obligation to give a reason for striking J.B.
after the trial court found no prima facie case, and the
prosecutor declined to do so. But this means we have no
indication of the prosecutor’s actual doubts, and J.B.’s “cruel”
and “inhumane” answer, in context, was hardly an obvious
reason for striking her.
Second, the court points to a statement J.B. made
immediately following the exchange above. (Maj. opn., ante, at
p. 41.) As noted, the prosecutor asked J.B. whether she would
“say, Well, I know about perhaps there have been some innocent
people that have been put on death row. I don’t want to make
that mistake; I’m not going to vote for death. It’s just easier. I
will give him life without parole?” In answering this question,
J.B. said: “And if — it’s unfortunate that if it’s proven that he’s
guilty I have to go along with the law.” The word “unfortunate”
could indicate that J.B. “generally thought [the death penalty]
was a verdict to avoid.” (Ibid.) But in the context of the
prosecutor’s question, it could also mean that J.B.’s commitment
to follow the facts and the law would deny her the “easier” option
to “give him life without parole.” In ordinary parlance, not

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 PEOPLE v. BATTLE
Liu, J., dissenting

taking the “easier” option may be “unfortunate” in the sense that
it is unfortunate (i.e., unpleasant, onerous) to do what is more
difficult. J.B.’s statement is readily understood to mean that
she thought the task of deciding whether a person should live or
die is more difficult than simply voting for life imprisonment
without parole — a view that (one hopes) is held no less by
people who support the death penalty than by people who oppose
it. That a person finds it “unfortunate” to have to decide
between life and death does not necessarily mean the person has
“an inherent discomfort with the death penalty.” (Ibid.)
Ultimately, it is unclear what J.B. meant by this snippet of her
answer, and there is no indication that it raised any concern for
the prosecutor.
Moreover, it is understandable why J.B.’s comment raised
no concern. The comment is immediately followed by her
statement: “I can’t go by, This is what [J.B.] feels. I have to go
by, This is the law, this is what he did, this is what was proven.
And without a reasonable doubt I have to. I have to vote on it.”
This statement indicates that J.B. took her role as a juror
seriously and intended to follow the law and the facts as
presented in the case before her — exactly as we would expect a
conscientious juror to do.
Today’s opinion acknowledges that J.B.’s statements
“have some ambiguity” and were accompanied by “other
answers indicating [J.B.] could vote for the death penalty.”
(Maj. opn., ante, at pp. 42–43.) But it concludes that the
“combination” of these statements “dispels whatever inference
of discrimination might otherwise be thought to arise from”
J.B.’s strike. (Id. at p. 44.) I find this reasoning unpersuasive.
The fact that one “alternative interpretation[]” of J.B.’s
individual comments could have provided “a reason why the

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 PEOPLE v. BATTLE
Liu, J., dissenting

prosecution would not have wanted her on the jury” is
insufficient to dispel an inference of discrimination. (Id. at p.
43.) In light of this, I do not see how the “combination” of J.B.’s
“cruel” and “inhumane” comment and her “unfortunate”
comment — each of which is ambiguous — could add up to an
expression of “significant” reservations about the death penalty
(ibid.), especially when the record contains no hint that either
comment posed a concern for the prosecutor. Here, pairing one
ambiguous statement with another produces two ambiguous
statements; it does not rid the statements of their ambiguity.
More broadly, the court’s parsing of a few select words
from J.B.’s voir dire misses the overall thrust of her answers.
The consistent and central theme of J.B.’s answers is that she
was committed to deciding the case based on the facts proven at
trial. J.B. expected expert witnesses to have their “facts down
and be honest.” She told the prosecutor that she would “go
basically with the facts” and would “hold you to the facts.” In
addition to other attributes that arguably made her an
attractive juror for the prosecution, including her repeated
statements indicating she was willing to impose the death
penalty, J.B. said, “I don’t know the judicial system and how it
works, but it [the evidence or the facts] must be pretty strong.
We’re all sitting here.” I have appended the voir dire transcript
so that readers can see the full context for themselves.
In sum, the totality of the relevant facts surrounding J.B.’s
excusal gives rise to an inference of discrimination. That does
not mean the prosecutor actually had a discriminatory purpose;
it simply means that the trial court should have asked the
prosecutor to explain why he excused J.B. and then analyzed the
stated reasons. Nothing in J.B.’s responses made her a juror
that “[a]ny reasonable prosecutor would logically wish to avoid.”

6
 PEOPLE v. BATTLE
Liu, J., dissenting

(Maj. opn., ante, at p. 42.) The court’s speculative analysis of
what motivated the prosecutor to excuse J.B. yields plausible
conjectures. But plausible conjectures are far from sufficient to
“necessarily dispel any inference of bias,” such that “ ‘there is no
longer any suspicion . . . of discrimination in th[e] strike[].’ ”
(Scott, supra, 61 Cal.4th at p. 384, italics added.)
II.
Today’s opinion, like other recent decisions, “illustrate[s]
the imprecision of relying on judicial speculation to resolve
plausible claims of discrimination.” (Johnson, supra, 545 U.S.
at p. 173; see People v. Rhoades (2019) 8 Cal.5th 393, 461–466
(Rhoades) (dis. opn. of Liu, J.); People v. Harris (2013) 57 Cal.4th
804, 871–879 (conc. opn. of Liu, J.).) “[T]his mode of analysis —
hypothesizing reasons for the removal of minority jurors as a
basis for obviating inquiry into the prosecutor’s actual
reasons — has become a staple of our Batson jurisprudence, and
it raises serious concerns. ‘The Batson framework is designed
to produce actual answers’ — not hypothesized answers — ‘to
suspicions and inferences that discrimination may have infected
the jury selection process.’ (Johnson v. California, supra, 545
U.S. at p. 172.) If an inference of bias is to be dispelled, it is up
to the prosecutor to dispel it by stating credible, race-neutral
reasons for the strikes. It is not the proper role of courts to posit
reasons that the prosecutor might or might not have had. This
case illustrates the problem: By combing the record for ‘readily
apparent’ reasons for the strikes (which, on close inspection, are
not readily apparent at all), the court does exactly what Johnson
v. California ‘counsels against’: It ‘engag[es] in needless and
imperfect speculation when a direct answer can be obtained by
asking a simple question.’ (Ibid.)” (Rhoades, at p. 457 (dis. opn.
of Liu, J.).)

7
 PEOPLE v. BATTLE
Liu, J., dissenting

The reasoning exemplified by today’s decision has
contributed to an unbroken pattern in our case law: “In the [16]
years since Johnson v. California, this court has reviewed the
merits of a first-stage Batson denial in [over] 42 cases, all death
penalty appeals. [Citation.] Not once [has] this court [found] a
prima facie case of discrimination — even though all [those]
cases were tried before Johnson v. California disapproved the
‘strong likelihood’ standard and held that ‘an inference of
discrimination’ is enough. In light of this remarkable
uniformity of results, I am concerned that ‘this court has
improperly elevated the standard for establishing a prima facie
case beyond the showing that the high court has deemed
sufficient to trigger a prosecutor’s obligation to state the actual
reasons for the strike.’ ” (Rhoades, supra, 8 Cal.5th at p. 458
(dis. opn. of Liu, J.); see id. at p. 467 [documenting that 30 of
this court’s 42 Batson first-step decisions as of 2019 “rel[ied] on
hypothesized grounds for contested strikes”]; id. at pp. 471–474,
appen.)
“Equally remarkable is the fact that it has been more than
30 years since this court has found any type of Batson error
involving the removal of a Black juror. (See People v. Snow
(1987) 44 Cal.3d 216.) This is despite the fact that ‘[t]he high
court’s opinion [in Batson] responded specifically to the
pernicious history of African Americans being excluded from
jury service, calling such exclusion “a primary example of the
evil the Fourteenth Amendment was designed to cure.” ’
([People v. ]Hardy [(2018)] 5 Cal.5th [56,] 124 (dis. opn. of Liu,
J.), quoting Batson, supra, 476 U.S. at p. 85.)” (People v.
Johnson (2019) 8 Cal.5th 475, 534 (dis. opn. of Liu, J.).) The
United States Supreme Court recently recounted Batson’s
origins as a doctrine to combat the exclusion of Black jurors.

8
 PEOPLE v. BATTLE
Liu, J., dissenting

(Flowers v. Mississippi (2019) 588 U.S. __, __–__ [139 S.Ct. 2228,
2238–2243].) And the high court cited several cases, all
involving Black jurors, to underscore that “[i]n the decades since
Batson, this Court’s cases have vigorously enforced and
reinforced the decision, and guarded against any backsliding.”
(Id. at p. __ [139 S.Ct. at p. 2243], citing Foster v. Chatman
(2016) 578 U.S. __ [136 S.Ct. 1737], Snyder v. Louisiana (2008)
552 U.S. 472, and Miller-El v. Dretke (2005) 545 U.S. 231).
“Clearly, racial discrimination against Black jurors has
persisted. Yet no comparable record of vigorous enforcement
appears in our case law over the same period. (Cf. People v.
Gutierrez (2017) 2 Cal.5th 1150 [this court’s lone finding
of Batson error in the past [20] years].)” (People v. Johnson, at
pp. 534–535 (dis. opn. of Liu, J.).)
Because the passage of time makes impractical a remand
to explore the prosecution’s actual reasons for excusing J.B. (see
Snyder v. Louisiana, supra, 552 U.S. at p. 486), the judgment of
conviction must be reversed. I respectfully dissent.

LIU, J.

9
Appendix

1
PEOPLE v. BATTLE
Liu, J., dissenting

2
PEOPLE v. BATTLE
Liu, J., dissenting

3
PEOPLE v. BATTLE
Liu, J., dissenting

4
PEOPLE v. BATTLE
Liu, J., dissenting

5
PEOPLE v. BATTLE
Liu, J., dissenting

6
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Battle
__________________________________________________________________

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

Opinion No. S119296
Date Filed: July 1, 2021
__________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Eric M. Nakata
__________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders,
under appointments by the Supreme Court, Nina Rivkind, Heidi
Bjornson-Pennell and Elias Batchelder, Deputy State Public
Defenders, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie
L. Garland and James William Bilderback II, Assistant Attorneys
General, Holly D. Wilkens, Eric A. Swenson and Michael Pulos,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

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

Michael Pulos
Deputy Attorney General
600 W. Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9041