IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY DUANE MILES,

Defendant and Appellant.

S086234

San Bernardino County Superior Court

FSB09438

May 28, 2020

Justice Groban authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, 

Cuéllar, and Kruger concurred.

Justice Liu filed a dissenting opinion.
1

PEOPLE v. MILES

S086234

Opinion of the Court by Groban, J.

On March 17, 1999, a jury in San Bernardino County 

convicted defendant Johnny Duane Miles of burglary and first 

degree murder, first degree forcible rape, second degree robbery, 

and false imprisonment by violence of Nancy Willem. The jury 

found true the special circumstances that Willem was killed 

during the commission of the burglary, rape, and robbery (Pen.

Code, § 190.2, subd. (a)(17))1 and that the murder was 

intentional and involved the infliction of torture (§ 190.2, 

subd. (a)(18)). The jury also convicted defendant of 10

additional counts related to two separate incidents and found 

true the enhancement allegations relating to those counts. 

Following the penalty phase, the jury reached a verdict of death. 

After denying defendant’s motion to modify the verdicts 

(§ 190.4, subd. (e)), the trial court sentenced defendant to death. 

This appeal is automatic. (§ 1239, subd. (b).) We affirm the 

judgment. 

I. FACTUAL BACKGROUND

A. Guilt Phase 

1. Prosecution Case 

This case arises from three separate incidents occurring in 

February 1992: (1) the murder, rape, robbery, and false 

 

1 All further statutory references are to the Penal Code 

unless otherwise indicated. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

2

imprisonment by violence of Nancy Willem and the burglary 

preceding her death; (2) the rape, robbery, false imprisonment

by violence, and penetration by a foreign object of Christine C.; 

and (3) the robbery and false imprisonment by violence of 

Melvin Osburn and the rape, robbery, false imprisonment by 

violence, and penetration by a foreign object of Carole D. 

a. Nancy Willem 

On February 4, 1992, Nancy Willem did not come home 

from work at the Behavioral Health Services Clinic in Rialto. 

That evening, her roommate, Kristen Schutz, started calling the 

clinic, but the clinic’s phone lines were busy. When Schutz was 

not able to reach Willem, Schutz drove to the clinic. After 

entering the building through an unlocked back door, she found 

the door to the clinic ajar. 

As she entered the clinic, she saw the reception area had 

been ransacked. She followed the blood on the floor from the 

reception area into one of the offices. There, she found Willem’s 

naked body between a couch and a coffee table. There was a 

telephone cord tied to her wrist and a sweater wrapped around 

her neck. There was also a handwritten note found on top of her 

abdomen that read: “Feed the poor. Down with the 

goverenment [sic].”

Schutz tried to call the police but realized that the 

telephone cords were missing. Once she reconnected one of the 

cords, she called 911. The police arrived and pronounced Willem 

dead on the scene. After securing the area and obtaining 

consent to search the clinic, the police collected blood and other 

bodily fluids from the reception area and office where Willem’s 

body was found. The police also recorded a video depicting the 

crime scene, which was played for the jury. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

3

Dr. Nenita Duazo subsequently performed the autopsy on 

Willem’s body. Willem’s injuries were extensive. She had 

multiple lacerations of her scalp and forehead, a fractured jaw, 

a missing tooth, redness in her vagina, and a circular area that 

appeared to be a cigarette burn on her chest. She had bruising 

of her face, chest, back, arms, and legs, which, according to Dr. 

Duazo, indicated that Willem was alive when her injuries were 

inflicted. Internally, Willem had eight broken ribs, a tear in her 

left lung, two lacerations of her liver, and hemorrhage in her 

brain. These injuries were likely caused by the application of 

substantial and multiple instances of force while Willem was 

still alive. Willem also had hemorrhage in her eyes and neck, as 

well as a broken bone and broken cartilage in her neck, all of 

which indicated that she was manually strangled before her 

death. Dr. Duazo testified that Willem was killed by a 

combination of blunt force injuries and manual strangulation. 

i. Physical evidence 

Several witnesses testified regarding the collection and 

analysis of blood and other bodily fluids found at the crime 

scene. In particular, two criminalists from the San Bernardino 

County Sheriff’s Crime Laboratory, David Stockwell and Donald 

Jones, testified concerning their analysis. 

Stockwell testified that he conducted a serological analysis 

on items recovered from the crime scene. He concluded that the 

nonvictim blood and semen from the crime scene came from an 

individual who was likely African-American and a type AB 

secretor, which he defined as someone whose blood type is 

secreted into other bodily fluids. He testified that the genetic 

markers found in the nonvictim blood and semen would be 

expected in approximately one in 333 million African-American 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

4

men. Following this analysis, he received a blood sample from 

defendant, who is African-American. Stockwell testified that 

defendant is a secretor and his genetic markers matched the 

genetic markers found in the nonvictim blood and semen 

recovered from the crime scene. 

Next, Jones testified that he conducted a DNA analysis on 

the samples recovered from the crime scene. He concluded that 

defendant’s DNA profile matched the DNA profile from the 

crime scene. He testified that the DNA profile from the crime 

scene would be expected in approximately one in 180 million 

African-Americans (or one in 280 million African-Americans 

using his lab’s updated match criteria from around the time of 

the trial). 

ii. Other evidence 

On the night of Willem’s death, her ATM card was used to 

withdraw $1,160 from an ATM in Pomona and another $300 

from an ATM in Glendora. An employee from the bank’s 

investigations unit testified that ATM surveillance photographs 

showed an individual wearing glasses and a “Red Dragon” hat

at the time of the transaction in Glendora. The individual’s 

features could not be discerned from the photographs. 

A couple of months after Willem’s death, the police briefly 

stopped an individual who identified himself as defendant and 

was walking no more than half of a mile from Willem’s office. 

During the stop, the police documented that defendant was an 

African-American man who was 25 years old, six feet, six inches 

tall, and 210 pounds. 

As to the handwritten note found at the crime scene, the 

prosecution offered testimony by expert Glen Owens. He

examined the note found on Willem’s body and certain inmate
PEOPLE v. MILES

Opinion of the Court by Groban, J.

5

forms written by defendant. He concluded that there were some 

indications that the writer of the inmate forms may have written 

the crime scene note but it was not definitive. An investigator 

testified that when defendant was served with a court order 

requiring him to provide a handwriting exemplar, he refused to 

comply. 

An officer at the Rialto Police Department testified that 

during a search of defendant’s car, the police found a note in it. 

That note read in part: “We’ll be wiped out by the governement 

[sic].” The note contained a misspelling of the word government, 

which was similar to the misspelling in the note found on 

Willem’s body. 

b. Christine C.

Christine C. was working alone at the Desert 

Communities United Way office in Victorville on the evening of 

February 25, 1992 when a man forced his way into the office. 

Christine C. described the man as African-American, over six 

feet tall, in his twenties, and of “slim build.”2 

The man was wearing a ski-type mask and holding a silver 

handgun. Pointing the gun at her, he demanded money. She 

gave him cash from her purse and said that the office had no 

other money. He then ordered her to lie down on the floor while 

he searched the office. Once he returned, he directed her into a 

conference room, tied her arms behind her back with a telephone 

cord, and took her jewelry. When she looked at him, he told her,

“Don’t look at me.” He also took an ATM card from her purse 

and asked her for the PIN, to which she said she did not know 

it. 

 

2 Christine C. did not identify defendant in her testimony. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

6

After rummaging through the office, he returned to the 

conference room. He proceeded to pull up Christine C.’s skirt 

and pull down her pantyhose, while she was lying on her 

stomach with her hands tied behind her back. He penetrated 

her vagina from behind, initially with his fingers and then with 

his penis. He ejaculated on her thighs and wiped her off with a 

tissue. He then tied her feet and hands together and tied her to 

the conference table with telephone cords, and he left the office. 

She untied herself and called 911. The police arrived on the 

scene, and she was taken to the hospital for a medical 

examination. 

The San Bernardino County Sheriff’s Crime Laboratory 

analyzed semen on tissues left at the crime scene. Criminalist 

Stockwell testified that based on his serological analysis, the 

semen profile from the Christine C. crime scene matched the 

profile from the Willem crime scene and additionally matched 

defendant’s genetic markers. Criminalist Jones testified that 

the DNA found on the tissues also matched defendant’s DNA 

profile and would be expected in approximately one in 180 

million African-Americans. 

c. Melvin Osburn & Carole D. 

Therapist Melvin Osburn was in his office in San 

Bernardino on the evening of February 26, 1992 when a man 

later determined by the jury to be defendant entered the office 

wearing a ski mask and holding a silver handgun.3 Defendant

demanded Osburn’s wallet, threatening, “Don’t look at me or I’ll 

kill you.” After taking money from his wallet, defendant ordered 

 

3 Osburn did not identify defendant in his testimony, but he 

described the perpetrator as a Black man who was at least six 

feet, one inch tall and in his twenties.
PEOPLE v. MILES

Opinion of the Court by Groban, J.

7

Osburn to lie down on the floor. Defendant then tied Osburn’s 

hands and feet with telephone cords and proceeded to rummage 

around the office, repeatedly asking whether there was a safe. 

Defendant also forced Osburn’s ring off his finger and asked

Osburn about his ATM card, to which Osburn told him that 

there was no money on it. When it appeared defendant was 

getting ready to leave, Osburn’s next client, Carole D., walked 

into the office. 

She was met by defendant pointing a silver gun at her.4 

He directed her into Osburn’s office, where he ordered her to lie 

down and not look at him. He asked whether she had any money

or an ATM card, to which she replied that she did not. He took 

her wedding ring and tied her up with her purse strap and 

telephone cords. Next, he pulled her pants and underwear down 

and penetrated her vagina from behind, initially with his fingers 

and then with his penis. 

Taking Osburn’s keys, defendant left the office and drove 

away in Osburn’s car, with his cellphone. Osburn freed himself 

and Carole D., and because the telephone cords were torn, he

triggered the burglar alarm and eventually used his next client’s 

phone to call the police. The police arrived, and Carole D. was 

taken to the hospital for a medical examination. The examining 

nurse testified that Carole D. showed signs of sexual assault. 

The police later found Osburn’s car abandoned in a nearby 

parking lot. His cellphone bill showed calls that he had not 

made. 

 

4 She did not identify defendant in her testimony, but she 

described the perpetrator as a Black man over six feet tall and 

in his twenties.
PEOPLE v. MILES

Opinion of the Court by Groban, J.

8

The San Bernardino County Sheriff’s Crime Laboratory 

analyzed semen found on Carole D.’s underwear. Criminalist 

Stockwell testified that this sample contained less serological 

information than the samples obtained from the other two crime 

scenes, but that the detectable genetic markers from the sample 

matched the semen profiles from the Willem and Christine C.

crime scenes. He testified that the detectable genetic markers 

from the sample also matched defendant’s genetic markers. As 

to the DNA, criminalist Jones was able to form only a partial 

DNA profile based on the sample, but he testified that the

partial DNA profile matched defendant’s DNA and would be 

expected in approximately one in 920 African-Americans.

2. Defense Case 

The defense called three witnesses. First, the defense 

called Dr. Thomas Rogers, a pathology expert, who testified that

it was not possible to determine whether Willem’s injuries were 

inflicted when she was conscious or unconscious or to determine 

from any autopsy whether a deceased individual was tortured. 

Second, the defense called Dr. Jonathan Koehler, a research 

methodology expert, who testified regarding errors and 

probability statistics in DNA analysis. For the third witness, 

the defense called one of the investigating detectives, Detective 

Chester Lore. He testified that the police did not recover stolen 

property, bloody clothing, or a “Red Dragon” hat (which the 

individual who used Willem’s ATM card in Glendora appeared 

to be wearing) when they searched defendant’s residences and 

vehicle. Nor did the police recover any fingerprints from the 

crime scenes that matched defendant’s fingerprints. Detective 

Lore also testified that the police previously investigated 

someone other than defendant in connection with a “Red 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

9

Dragon” hat, but that individual was eventually cleared as a 

suspect.

B. Penalty Phase 

After the jury returned its guilt phase verdicts, the trial 

court declared a doubt as to defendant’s competency, suspended 

proceedings, and commenced a competency trial before a 

separate jury. (The evidence presented in the competency trial 

is described further below [see pt. IV., post].) Once defendant 

was found competent to stand trial, the trial proceeded to the 

penalty phase. 

1. Prosecution Evidence

a. Defendant’s criminal activity and prior 

convictions 

The prosecution presented evidence in aggravation 

concerning defendant’s unadjudicated criminal activity and 

prior criminal convictions. 

i. January 6, 1992 incident 

Paula Yenerall testified that she was working alone at an 

accounting firm in Rialto on the evening of January 6, 1992 

when defendant broke the window and forced his way into the 

office. He was wearing a stocking cap, jacket, and gloves and 

appeared “very calm.” He pointed a chrome, semi-automatic 

gun at her and demanded money. When she told him that she 

had some money in her purse at her desk, he held the gun to her 

head and pulled her to her desk to retrieve the money. He 

repeatedly said, “Don’t look at me, bitch,” and at one point said, 

“I’m a murderer and I’ll kill you, too.” After taking $1,200 from 

her, as well as two rings and a gold necklace, he tied her hands 

behind her back with a telephone cord. He then instructed her 

to stay put and left.
PEOPLE v. MILES

Opinion of the Court by Groban, J.

10

ii. January 21, 1992 incident 

Janet Heynen testified regarding a January 21, 1992 

incident in a psychologist’s office in Upland. While she was 

working that evening, defendant appeared at the reception 

window. She described him as calm and wearing a brown 

beanie, jacket, and gloves. He pointed a chrome handgun at her 

face and demanded money. He told her not to look at him and 

appeared to be “pulling the [telephone] cords out.” After she 

gave him some cash, he briefly went into a back office for a 

couple of minutes and, once he returned, told her to not call the 

police and left. 

iii. February 19, 1992 incident 

John Kendrick testified about a February 19, 1992 

incident in Ontario. That evening, he was working in his 

accounting office with his clients Paul and Mary Crawford, 

when defendant entered the office. Defendant appeared “[v]ery 

calm” and was wearing a gray stocking cap on his head. 

Pointing a small chrome handgun at Kendrick, defendant 

demanded money. Kendrick and the Crawfords gave defendant

several hundred dollars in cash, while defendant repeatedly 

said, “Don’t look at me, man.” Defendant then instructed them 

not to call the police for 30 minutes, and he left. 

iv. February 21, 1992 incident 

Arnold and Sharyn Andersen testified that they were 

working together in their insurance and investment office in 

San Bernardino on the evening of February 21, 1992.

5

 After 

they heard crashing and shattering sounds, defendant appeared 

 

5 For clarity, we will refer to Arnold and Sharyn Andersen 

by their first names. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

11

in the office, pointing a small chrome, automatic gun at them. 

Defendant appeared calm and was wearing a beanie. He

demanded money and told the Andersens to lie down on the 

floor, repeatedly telling them not to look at him. He then took 

some cash from Arnold’s wallet and Sharyn’s purse and, after 

Arnold went into his office to look for more money, defendant

took a money clip with approximately $1,200 from him. As he 

was leaving the office, defendant grabbed a bunch of Kleenex 

and dabbed his hands where he had cut them from breaking one 

of the windows to enter the office. 

v. June 16, 1992 crimes

Bridget E. testified about defendant’s June 16, 1992 

crimes in Torrance. She was working at an appraisal office that 

evening with her boss, Steve H., when defendant entered the 

office and pointed a gun at them. Defendant was wearing a red 

bandana over his lower face. He demanded money, so Bridget 

E. gave him some money from her purse. He proceeded to search 

the office, asking for the location of a safe. He repeatedly said, 

“Don’t look at me, man. Don’t look at me, man.” 

Next, defendant tied Steve H. with telephone cords and 

computer cords, unzipped Bridget E.’s pants, and kicked Steve 

H. in the ribs a few times. Pointing the gun at Bridget E.’s head, 

defendant ordered Bridget E. to orally copulate Steve H. She 

told him that she was pregnant and asked him not to hurt her, 

so “[h]e said, just do what I say and you won’t get hurt — if you 

don’t want to get hurt.” Bridget E. proceeded to orally copulate 

Steve H. She could not recall whether she was tied up at that 

time. Defendant then penetrated Bridget E.’s vagina, initially 

with his fingers and then with his penis. Once he stopped, he 

told her to continue copulating Steve H. She recounted that her 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

12

hands and feet were tied up with cords at that time. After 

defendant eventually left the office, Steve H. and Bridget E. 

untied themselves and called the police. 

vi. Defendant’s other criminal convictions 

At the prosecution’s request, the trial court took judicial 

notice of 14 prior convictions, of which 13 were for first degree 

residential burglary and one was for second degree robbery. 

b. Victim impact testimony 

The prosecution’s penalty phase evidence also included

victim impact testimony from Nancy Willem’s father, mother, 

and younger sister. The family members described Nancy’s 

personality and interests, including her interest in singing and 

playing guitar. During her mother’s testimony, the prosecution

played a videotape for the jury depicting Nancy singing at her 

youngest sister’s wedding a couple of years before her death. 

The family members further described how Nancy’s death 

affected them as a family and as individuals. The prosecution 

also offered a photograph of Nancy, which, according to her 

father, resembled how she looked around the time of her death. 

The prosecution additionally offered victim impact 

testimony from Bridget E. She testified that after the June 16, 

1992 crimes, she was tested “right away” for any diseases, and 

she was diagnosed with and treated for chlamydia. She also 

stopped working and by the time of the trial, had not had the 

opportunity to “get back into” the appraisal business. She 

suffered from nightmares for “a long time” and became “more 

suspicious of people” and a “more serious person.”
PEOPLE v. MILES

Opinion of the Court by Groban, J.

13

2. Defense Evidence

a. Defendant’s testimony 

Against the advice of counsel, defendant testified during 

the penalty phase, largely in a narrative form. He began by 

describing a time when he approached two people who had 

supposedly killed his cousin and his neighbor. He explained

that the man who had killed his neighbor told him to testify 

about “Wilhelmena’s murder.” Defendant testified that by 

“Wilhelmena,” he meant Nancy Willem, and that Wilhelmena 

was “able to reveal the things that happened at the time of the 

crime.” 

He then testified that ever since undergoing foot surgery 

when he was a teenager, he suffered from hallucinations and “ill 

angels,” which controlled his actions. He said that he suffered 

from these “ill angels” at the time of Willem’s death. As to her 

death, he said that “[t]here was one rape” and a beating of her

head with an object, but there was no strangulation. He said

that after he took her money and bank information, he raped 

her because the voices in his head told him that she wanted it. 

He described that the voices then grew louder and, in order to 

stop them, he beat, kicked, and stomped her. The voices next 

took over the left side of his body, causing him to write the note, 

saying, “Wake up goverenment [sic].” He testified that since 

that night, “Wilhelmena” helped him to control the “ill angels” 

and intervened to “save the lives of other females that were 

involved in this case.”

6

 

 

6 On cross-examination, defendant testified that the voices 

told him to rape Christine C. and Carole D. as well. He said that 

the voices “were there continuously through the robberies,” and 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

14

b. Evidence regarding defendant’s mental health 

Much of the defense’s penalty phase evidence concerned 

defendant’s mental health. Clinical psychologist Dr. Joseph 

Lantz testified that defendant’s intelligence fell within the 

borderline range, between mental deficiency and low-average,

and in his opinion, defendant suffered from schizophrenia. 

Psychiatrist Dr. Richard Dudley testified that in his opinion, 

defendant suffered from schizo-affective disorder, which he

defined as a combination of schizophrenia and a mood disorder. 

He further testified that defendant suffered from cognitive 

deficits and problems related to an invasive mass, which was

near his brain and removed after his arrest. A social worker 

also testified about defendant visiting a psychiatric clinic in 

1992. 

In addition, Dr. Joseph Wu testified regarding a positron 

emission tomography (PET) scan of defendant’s brain, of which 

photographs and a video were displayed to the jury. Dr. Wu 

testified that while a PET scan cannot alone lead to a diagnosis, 

defendant’s brain exhibited abnormalities consistent with a 

schizophrenia diagnosis. Dr. Ernie Meth testified regarding a

SPECT (single-photon emission computed tomography) scan of 

defendant’s brain, of which photographs and a video were 

likewise displayed to the jury. Dr. Meth testified that based on 

this scan, defendant’s brain exhibited abnormalities that were 

consistent with the results of Dr. Wu’s PET scan.

 

when asked by the prosecutor about specific robberies, 

defendant recalled raping Bridget E., robbing Yenerall, and 

robbing the Andersens, although he denied robbing Heynen 

(and was not asked specifically about robbing Kendrick or the 

Crawfords). 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

15

c. Other testimony 

One of defendant’s childhood friends, Dwayne 

Washington, described defendant as a “great kid” with a tough 

home life and a love for basketball. He testified that defendant

became depressed during his teenage years after he underwent 

foot surgery and was no longer able to play basketball. He

testified that on a few occasions around 1984 or 1985, defendant

acted strangely and appeared to believe that people were trying 

to get him. Washington’s mother, Sharon Mitchell, described 

defendant as a good kid with an “extremely negative” home life. 

She, too, recalled that defendant began suffering from 

headaches and memory lapses during his teenage years and

recounted a few incidents in which defendant tried to hide under 

the table to prevent people from getting him. Washington’s 

aunt, Serette Mitchell-Hughes, testified about one of those

incidents as well. These witnesses also testified about 

defendant later getting married and having a daughter.

Defendant’s former girlfriend, Terry Sylvester, testified 

that defendant lived with her and her three children around the 

late 1980’s in Atlanta. She said that during that time, 

defendant worked and participated in family activities, but one 

day, he left for work and never returned. He later told her that 

he went back to California. 

A retired correctional officer testified that should 

defendant be sentenced to life imprisonment, he could function 

within the constraints of the prison facilities and be safely 

imprisoned. 

3. Prosecution’s Rebuttal 

In rebuttal, the prosecution offered testimony from two 

additional witnesses. First, Deputy Jonathan Billings testified 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

16

about a videotape that he said reflected defendant’s “normal” 

behavior in jail. The videotape, a portion of which was played 

for the jury, showed defendant watching television and playing 

chess with other inmates. Second, psychiatrist Dr. Rajesh Patel

testified that when defendant claimed to be suicidal in jail, Dr. 

Patel examined him and concluded that he was malingering 

mental illness. 

II. PRETRIAL ISSUES

A. Prosecutor’s Use of Peremptory Challenges

Defendant contends that the prosecutor improperly 

exercised peremptory challenges to excuse two prospective 

jurors, who were African-American, in violation of Batson v. 

Kentucky (1986) 476 U.S. 79, 89 (Batson) and People v. Wheeler

(1978) 22 Cal.3d 258, 276–277 (Wheeler). The prosecutor’s 

exercise of these peremptory challenges, defendant argues,

warrants close scrutiny because there are heightened concerns 

about racial discrimination in this case given that he was 

charged with raping and murdering a White woman. We will 

examine the prosecutor’s exercise of the peremptory challenges 

in light of these and all other relevant circumstances. 

1. Background 

Jury selection for defendant’s trial began on November 18, 

1998. Following hardships and other dismissals, the remaining

prospective jurors filled out a 31-page questionnaire. Based on 

the completed questionnaires, the parties questioned some of 

the prospective jurors on their views regarding the death 

penalty pursuant to People v. Hovey (1988) 44 Cal.3d 543. Once

Hovey questioning concluded, and the trial court excused

prospective jurors for cause or by stipulation, 72 prospective 

jurors remained. The trial court called the first 12 prospective 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

17

jurors to the main panel. They included three African-American 

jurors, three Hispanic jurors, five White jurors, and one 

“American Indian / Caucasian” juror.

The parties then commenced general voir dire. After the 

defense challenged an African-American prospective juror for 

cause and that prospective juror was replaced, the prosecutor

proceeded to exercise peremptory strikes against Malinda M. (a

Hispanic woman), Kevin C. (an African-American man), 

Michelle G. (a White woman), Simeon G. (an African-American 

man), and Ronald W. (a White man). After the prosecutor twice 

passed on exercising any peremptory strikes and the defense 

exercised three peremptory strikes, the prosecutor next struck 

Isabella B. (an African-American woman). 

At this time, the defense raised a Batson/Wheeler

objection and moved to quash the panel. The defense noted that 

the prosecutor had used three of his six strikes up to that point 

on African-American prospective jurors. The trial court found 

that a prima facie case had been established. The court stated 

that it understood the basis for striking Isabella B. based on her

answers during Hovey questioning, but asked the prosecutor to 

explain the basis for striking Kevin C. and Simeon G. After 

hearing the prosecutor’s reasons, the court found, “As to [Kevin 

C.] and [Simeon G.], I think it’s certainly not as obvious, but I 

cannot say it is not legitimate. [¶] So, at this point in time, I will 

make a finding that there have been valid reasons to justify 

excusing those three prospective jurors pursuant to a 

peremptory challenge.”

After the court denied the motion, the 12 prospective 

jurors seated in the jury box included nine White jurors, two 

Hispanic jurors, and one “American Indian / Caucasian” juror.
PEOPLE v. MILES

Opinion of the Court by Groban, J.

18

The prosecutor twice passed on exercising any peremptory 

strikes, and the defense exercised four peremptory strikes. The 

prosecutor then exercised a peremptory strike against Mary B. 

(an African-American woman). At this time, the defense 

renewed its Batson/Wheeler objection and motion to quash the 

panel, arguing that, although Mary B. expressed reservations 

about the death penalty, the prosecutor had exercised his 

peremptory strikes to compose an all-White jury panel. The 

trial court denied the motion, finding that Mary B.’s 

reservations about the death penalty justified the strike. 

After the prosecutor peremptorily struck Richard L. (a

Hispanic man), and the defense exercised one more peremptory 

strike, the parties accepted the main jury panel. The panel

included 10 White jurors, one Hispanic juror, and one “American 

Indian / Caucasian” juror. The trial court then proceeded to the 

selection of six alternate jurors. The prosecutor repeatedly 

declined to exercise any peremptory strikes, except to strike 

Lynia B. (a White woman). The sworn alternate jurors included

one African-American and five White individuals. Before the 

penalty phase of the trial, the African-American alternate juror 

replaced an excused juror and served on the jury. 

On appeal, defendant renews his challenge to the 

prosecutor’s peremptory strikes of Kevin C. and Simeon G. from 

the main jury panel. Defendant states that he “is not 

challenging” the peremptory strikes of Isabella B. or Mary B. As 

we examine defendant’s Batson/Wheeler arguments with 

regard to Kevin C. and Simeon G., we bear the above record in 

mind. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

19

a. Prospective Juror Kevin C. 

Kevin C., who was African-American, was 32 years old at 

the time of jury selection. He was divorced with three children 

and worked as a coach operator. He had previously served in 

the military and had previously applied, but had not been 

selected, for other law enforcement positions. His former spouse 

was a correctional officer. 

In his questionnaire, he revealed a degree of skepticism 

regarding the criminal justice system. He believed that people 

accused of crimes were treated “leniently if you rich harshly if 

poor.” He previously served as an alternate juror in a criminal 

case involving murder charges, and when asked how his jury 

service experience affected his views on the court system, he 

said, “It let me know that no matter the crime or defendant the 

community selected [as jurors] is both white and blue collar 

workers.” He believed the biggest problem with the system was 

“racial coded prison[s] keep racism alive and create even larger 

bias.” And when asked whether he, any relative, or any close 

friend had ever been mistreated by a law enforcement officer, he 

checked “yes” and said, “pull[ed] over several times no good 

reason given no ticket given.” 

Asked whether he was upset by the O.J. Simpson verdict, 

he checked “no” and commented, “To [sic] hard to believe one 

man did it all, I believe biases created a lot of the circumstance 

[sic] evidence.” Also regarding the Simpson case, he said, 

“watch[ed] several days of the O.J. Simpson trial taught me [a 

lot] about law” in response to whether he had read about, 

watched, or listened to any testimony regarding DNA evidence. 

Asked about his opinion on using DNA evidence in criminal 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

20

cases, he said, “I think it’s like a polygraph not a for sure 

certain.” 

His questionnaire responses also suggested some 

hesitancy about the death penalty. Asked his opinion on it, he 

said, “there are members of society who do bad things and don[’t]

deserve to be here, can I kill them? unknown at this time.” 

Asked whether he had a moral, philosophical, or religious 

objection to the death penalty, he checked “yes,” commenting, 

“God should decide life or death, but some don’t deserve[] life.” 

He identified himself as Christian and described his religion’s 

view as “thou should not kill.” He said that he agreed with that 

view, although he added, “but if my child was being attack[ed]

someone might die[].” As to whether he would vote to keep or 

abolish the death penalty, he said that he would not vote and 

remarked, “I like to decide who could stay in society but not 

decide who stays on earth (I’d like to sleep).” He believed that 

the death penalty was unfair but admitted, “mainly because I 

don’t know it completely.” 

In spite of this, he said that his views on the death penalty 

had changed in the last 10 years, commenting, “at first against 

but now feel it is needed in special circumstances.” He identified 

himself as belonging to Group 3, which was defined as “I neither 

favor nor oppose the death penalty.” He said that his views on 

the death penalty were not such that he would never be able to 

personally vote for the death of the defendant under any 

circumstance. Nor would he be reluctant to vote for a sentence 

of death. But he said that he would be reluctant to sign the 

verdict form or state the verdict in court, commenting, “to look 

at someone not knowing why he did it would be hard.” 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

21

During Hovey questioning, the prosecutor asked Kevin C. 

about his moral, philosophical, or religious objections to the 

death penalty. Kevin C. responded, “I feel where I live I should 

decide. Where I’m a Christian. I go to church, so I think, you 

know, I can’t. I think God should decide. But, you know, I think 

I should decide if I live in the community.” Following up on this 

response, the prosecutor asked, “Then you made a comment, 

though, on the next page. ‘I’d like to decide who could stay in 

society, but not decide who stays on earth.’ That means you feel 

comfortable [with] making a decision if somebody should be 

maybe incarcerated, but you feel less comfortable making a 

decision as far as life or death on an individual?” Kevin C.

responded, “Well, of course I feel uncomfortable about life or

death, but incarcerated for the rest of their life, if they don’t 

believe, I would probably go that way, you know. Just an 

assumption. But, again, I don’t think I’d have a big problem, 

depending on evidence of what is in front of me. If someone 

killed my daughter, then I could see it.” The prosecutor clarified 

that “of course we have a victim that you weren’t acquainted 

with” and “[y]ou don’t know her at all.” Kevin C. said, “Right, 

I’m just saying —” 

The prosecutor then defined aggravating and mitigating 

evidence and asked, “But you’re going to hear, like you may hear 

some bad evidence, and you may hear some good evidence. But 

basically, if the bad outweighs the good — ” Kevin C. responded, 

“If the bad outweighs the good, then I don’t have a problem doing 

my job.” Asked “[w]hich means you could, you could vote for a 

death verdict,” Kevin C. responded, “Yeah.”

When the trial court subsequently called the first 12 

prospective jurors, including Kevin C., to the jury box, the court 

and the parties asked a series of questions to the jurors as a 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

22

group. Neither the prosecutor nor the defense asked Kevin C. 

any individual questions during general voir dire. 

Following defendant’s Batson/Wheeler objection, the 

prosecutor stated his reasons for striking Kevin C.: “[Kevin C.] 

in his questionnaire compared DNA to a polygraph. That it 

wasn’t a for sure thing. His answers on the questionnaire 

regarding the death penalty were much more tentative. He 

indicated questions like he wants to decide who is in society, but 

not [who’s] on earth. He was very skeptical of the O.J. Simpson 

case. He stated biases created the circumstantial evidence in 

the O.J. Simpson case. This is a DNA case very much like that. 

It’s a circumstantial case. It’s a DNA case. Those, those are the 

main concerns that I had.” The prosecutor added, “I think that 

in person his, his statements about the death penalty didn’t rise 

to a level for cause; but, however, I think when you take the 

totality of his responses, I think, I mean those are essentially 

the reasons that I’m stating.” The court found that the 

prosecutor’s reasons for striking Kevin C. were legitimate and 

valid.

b. Prospective Juror Simeon G. 

Simeon G. was an unmarried, 24-year-old 

African-American man with no children at the time of jury 

selection for defendant’s trial. He worked as a forklift driver. 

He had previously considered working in law enforcement to 

help others, and his father worked for the DEA.

In his questionnaire, he described himself as a leader 

rather than a follower and remarked, “I like my opinion over 

other peoples [sic].” He said that he had not previously worked 

with a group of people to make a decision, although he believed 

“it would be very interesting” to work with other jurors to reach 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

23

a verdict. He had not previously served on a jury. Asked 

whether he believed the jury system to be a fair method to judge 

a defendant charged with a crime, he replied affirmatively, 

commenting, “12 people have to come together to accuse 

someone. That[’]s 12 different opinions. Pretty impressive.” 

He considered the biggest problems with the criminal 

justice system to be “A. The Court Backlog. B. Better ways of 

getting people through the judicial system.” He believed he 

could be a fair and impartial juror, stating, “I’m open to 

objectively listening to evidence from both sides to decide a fair 

verdict.” He did not believe that testimony by law enforcement 

officers would be more truthful or accurate than testimony by 

civilians; he would not automatically accept the opinion of a 

psychiatrist or psychologist; and he could follow an instruction 

that if a defendant does not testify, jurors are not supposed to 

draw any conclusions from that fact.

Asked whether he could follow an instruction “that a 

defendant is presumed innocent unless proven guilty beyond a 

reasonable doubt,” he checked “yes” but commented, “If I have 

any feeling that he might not have done it, hes [sic] innocent.” 

In that response, it appears that he crossed out the word “doubt” 

and replaced it with the word “feeling.” Elsewhere, he indicated 

that he was not upset by the O.J. Simpson verdict (without 

providing any explanation); that people accused of crimes are 

treated fairly; and that he “really [didn’t] know anything about”

DNA evidence in criminal cases. He also favored the death 

penalty and said that he could vote for a death sentence. 

During general voir dire, Simeon G. and two other 

prospective jurors did not arrive at the courthouse that morning,

possibly due to a miscommunication. The defense insisted on 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

24

trying to locate these missing prospective jurors. The prosecutor 

objected to doing so, arguing that other prospective jurors in 

their group were present in court and thus inferring that the 

missing prospective jurors “voluntarily absented themselves.” 

It appears that the trial judge, seeing from Simeon G.’s

questionnaire that he worked for Kmart Corporation, “called 

information and got the numbers of two Kmart stores in the 

Ontario area and [called] to try to locate Simeon [G.].” Simeon 

G. then called and spoke to the bailiff, and at the bailiff’s 

request, Simeon G. came to court that afternoon.

That afternoon, the prosecutor explained to the 

prospective jurors who were seated in the jury box, including 

Simeon G.: “[O]ne of the instructions you’re going to get in the 

case has to do with, essentially, reasonable doubt. There will be 

a definition that you’re going to get at the end of the case. It’s 

basically a doubt based on reason. And the duty is that if the 

case has been proved by the prosecution beyond a reasonable 

doubt, your duty is to return a guilty verdict. There’s [sic] also 

other principles that are, I don’t know how deeply we touched 

on them in the questionnaire, but the presumption of innocence. 

Of course, everybody who is charged with a crime is entitled to 

the presumption of innocence, and that is in existence right now. 

[¶] The question is, is if it [sic] at the conclusion of the case if the 

case has been proved beyond a reasonable doubt whether we can 

expect everybody to come back with a guilty verdict.” 

Immediately following this explanation, the prosecutor

asked Simeon G., “[I]n your questionnaire you mentioned 

something — and keep in mind I’m not intending to, you know, 

embarrass anybody or anything like that. It’s just, like I said, 

this is the only way we can get information quickly is to kind of 

be in a group at this point. [¶] You mentioned that if — [Simeon 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

25

G.], you mention in your questionnaire that if you had any 

feeling that maybe the defendant was [not] involved, then he’d 

be not guilty.”7 Simeon G. replied, “I’m sorry?” The prosecutor 

explained, “In your questionnaire, you used the phrase that if 

you have a feeling that the defendant was [not] involved, that 

you’d find him not guilty. And you used the word ‘feeling’ 

instead of the word ‘doubt.’ You’d written ‘doubt’ and crossed 

out and written the word ‘feeling.’ Do you remember that?” 

Simeon G. replied, “I don’t quite remember it, but I’m trying to 

understand your question. You’re saying if I had a reasonable 

doubt?” 

The prosecutor responded, “Well, I’m not sure. I’m trying 

to understand what you meant by that. You indicated that if 

you had a feeling that he might not be involved, then he would 

be not guilty?” Simeon G. replied, “Well, I think what I was 

trying to say, if I’m correct, is that if the evidence showed that 

there wasn’t — that there was some reasonable doubt, then I 

probably would not accuse him, because of the fact that, myself 

being in the same situation or anybody, I think that if the 

evidence didn’t totally prove that I did it, then there is some 

doubt. You know what I’m saying?” The prosecutor said, 

“Okay.” Simeon G. added, “So it wasn’t so much a feeling as it 

was if the evidence didn’t show.” When the prosecutor sought to 

clarify the answer, asking, “Okay. So you would base it on 

evidence?” Simeon G. replied, “Basically, yes. I’m sorry.” The 

prosecutor commented, “I wanted to make sure,” and Simeon G. 

 

7

It appears that the prosecutor initially misspoke and 

meant to say “if you had any feeling that maybe the defendant 

was [not] involved, then he’d be not guilty.” The prosecutor 

subsequently clarified his question. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

26

added, “I couldn’t tell you, tell you what I said, because I don’t 

have the paper to look at what I actually meant totally.” The 

prosecutor concluded, “Okay. Thank you.” 

Following defendant’s Batson/Wheeler objection, the 

prosecutor stated his reasons for striking Simeon G.: “[Simeon 

G.] made statements on his questionnaire how he likes his 

opinions over others. He did make a statement, although he 

explained it differently in court, he made a statement on his 

questionnaire basically saying if I have a feeling he didn’t do it, 

he’s not guilty. And he had crossed out the word doubt, which 

led me to believe that he certainly wasn’t going to base it on 

evidence. [¶] And I, also, would note that this is an individual 

who the Court personally tracked down this morning. He didn’t 

have — he, unlike others in his group, didn’t show up for court 

this morning. I would be concerned about his responses in light 

of the fact that he was, he was single-handedly hunted down to 

be here this afternoon. So, I’m not sure that his responses in 

court should prevail over the answers he gave on his 

questionnaire. But certainly those statements on his 

questionnaire cause me some significant concerns.” 

Seeking clarification, the court asked, “His answer being 

that if he had a feeling the defendant was not guilty, that was 

the answer that bothered you?” The prosecutor responded, “Yes, 

based on — and he had crossed out the word doubt. And to me 

that made it sound like he was going to be basically basing it on 

a hunch, or a feeling, which was, as the presenter of evidence, 

I’m powerless to overcome. And that was the main concern on 

that.” The prosecutor then added, “Also, he was not upset by 

the O.J. Simpson verdict. If you’ll notice across the board, I’ve 

excused jurors I believe of Hispanic origin and Caucasian origin, 

and the common denominator, essentially, is that they were not, 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

27

were not upset by the O.J. Simpson verdict, which was a DNA, 

circumstantial case. And I think those, those raise significant 

concerns in my mind as a guilt phase juror and the type of case 

that I’m dealing with.” 

Following the prosecutor’s reasons, defense counsel stated

that Simeon G. misunderstood whether “he was supposed to be 

here today or tomorrow” and, once it was clarified, he appeared. 

Defense counsel continued, “[Simeon G.] checked on his 

questionnaire with regard to the death penalty that he’s a Group 

2, that he favors the death penalty, but would weigh and 

consider aggravating circumstances. [¶] He really doesn’t give 

any answers that suggest that he couldn’t be fair and impartial. 

He indicates that his father was a D.E.A. agent. [¶] With regard 

to DNA, he said he didn’t know anything about it.” 

The court responded, “Well, I understand that there’s 

certainly not enough there to excuse him for cause, but that’s 

not the test that I have to utilize in this situation. I have to 

determine whether or not there are valid, legitimate reasons for 

the District Attorney dismissing three of the four Blacks that 

were called to the box. [¶] As I indicated, as to [Isabella B.], I 

understand his concern there. As to [Kevin C.] and [Simeon G.], 

I think it’s certainly not as obvious, but I cannot say it is not 

legitimate. [¶] So, at this point in time, I will make a finding 

that there have been valid reasons to justify excusing those 

three prospective jurors pursuant to a peremptory challenge. 

But I don’t need to remind counsel that we’re treading on thin 

ice in this area, and the consequences of falling through means 

we start all over again.”
PEOPLE v. MILES

Opinion of the Court by Groban, J.

28

2. Discussion 

a. Applicable law 

The United States and California Constitutions prohibit 

the discriminatory use of peremptory challenges. (Batson,

supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–

277.) A three-step inquiry governs the analysis of 

Batson/Wheeler claims. “First, the defendant must make out a 

prima facie case ‘by showing that the totality of the relevant 

facts gives rise to an inference of discriminatory purpose.’ 

[Citation.] Second, once the defendant has made out a prima 

facie case, the ‘burden shifts to the State to explain adequately 

the racial exclusion’ by offering permissible race-neutral 

justifications for the strikes. [Citations.] Third, ‘[i]f a 

race-neutral explanation is tendered, the trial court must then 

decide . . . whether the opponent of the strike has proved 

purposeful racial discrimination.’ ” (Johnson v. California

(2005) 545 U.S. 162, 168, fn. omitted.) 

“ ‘The proper focus of a Batson/Wheeler inquiry, of course, 

is on the subjective genuineness of the race-neutral reasons 

given for the peremptory challenge, not on the objective 

reasonableness of those reasons. . . . All that matters is that the 

prosecutor’s reason for exercising the peremptory challenge is 

sincere and legitimate, legitimate in the sense of being 

nondiscriminatory.’ ” (People v. O’Malley (2016) 62 Cal.4th 944, 

975 (O’Malley).) “ ‘At the third stage of the Wheeler/Batson

inquiry, “the issue comes down to whether the trial court finds 

the prosecutor’s race-neutral explanations to be credible. 

Credibility can be measured by, among other factors, the 

prosecutor’s demeanor; by how reasonable, or how improbable, 

the explanations are; and by whether the proffered rationale has 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

29

some basis in accepted trial strategy.” ’ ” (People v. Jones (2011) 

51 Cal.4th 346, 360 (Jones).) 

“ ‘ “ ‘[T]he trial court is not required to make specific or 

detailed comments for the record to justify every instance in 

which a prosecutor’s race-neutral reason for exercising a 

peremptory challenge is being accepted by the court as 

genuine.’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830, 848

(Vines).) However, “ ‘[w]hen the prosecutor’s stated reasons are 

either unsupported by the record, inherently implausible, or 

both, more is required of the trial court than a global finding 

that the reasons appear sufficient.’ ” (People v. Gutierrez (2017) 

2 Cal.5th 1150, 1171 (Gutierrez).) 

Where, as here, the trial court ruled pursuant to the third 

stage of the analysis, we skip to that stage to examine whether 

the trial court properly credited the prosecutor’s reasons for the 

challenges. “Review of a trial court’s denial of a Wheeler/Batson

motion is deferential, examining only whether substantial 

evidence supports its conclusions. [Citation.] ‘We review a trial 

court’s determination regarding the sufficiency of a prosecutor’s 

justifications for exercising peremptory challenges “ ‘with great 

restraint.’ ” [Citation.] We presume that a prosecutor uses 

peremptory challenges in a constitutional manner and give 

great deference to the trial court’s ability to distinguish bona 

fide reasons from sham excuses. [Citation.] So long as the trial 

court makes a sincere and reasoned effort to evaluate the 

nondiscriminatory justifications offered, its conclusions are 

entitled to deference on appeal.’ ” (People v. Lenix (2008) 

44 Cal.4th 602, 613–614 (Lenix); accord, People v. Winbush

(2017) 2 Cal.5th 402, 435 (Winbush).)
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Opinion of the Court by Groban, J.

30

Defendant, however, argues that the trial court’s findings

are not entitled to deference here because the prosecutor’s 

reasons were “suspicious” and, after hearing them, the court 

credited them without much discussion on the record. We 

disagree. The trial court found that a prima facie case had been 

established and asked the prosecutor to explain the basis for 

striking Kevin C. and Simeon G. The prosecutor’s stated 

reasons were largely self-evident: It requires “little additional 

explication” (Gutierrez, supra, 2 Cal.5th at p. 1171) to 

understand why an advocate would harbor a concern about a 

prospective juror’s stated preference for his own opinion over 

others’ or a prospective juror’s opinion on DNA evidence, the 

death penalty, or the O.J. Simpson verdict. Moreover, the 

prosecutor articulated why, specifically, some of the prospective 

jurors’ responses concerned him. The court also asked the 

prosecutor a question about one of his stated reasons for striking 

Simeon G. (See ante, at p. 26 [“His answer being that if he had 

a feeling the defendant was not guilty, that was the answer that 

bothered you?”].) And the court listened to defense counsel’s 

comments on the prosecutor’s striking of Simeon G.8 The trial 

 

8 Disagreeing, the dissent argues that the prosecutor’s 

reasons were not self-evident and, in turn, that the trial court 

was required to do more than what it did here. The dissent 

relies on Gutierrez, supra, 2 Cal.5th 1150. (Dis. opn., post, at 

pp. 2–3.) In Gutierrez, we found that it was not self-evident why 

a prospective juror’s mere unawareness of gang activity in a 

specific city would indicate a bias against a witness who was a 

gang member in the city. (Gutierrez, at p. 1169.) 

The dissent asserts that the trial court here “expressly 

acknowledged that the prosecutor’s proffered reasons for 

striking Kevin C. and Simeon G. were not self-evident.” (Dis. 
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Opinion of the Court by Groban, J.

31

court acknowledged that “there’s certainly not enough there to 

excuse [Simeon G.] for cause,” but the trial court accurately 

explained that “that’s not the test” and instead it must 

determine whether there were “valid, legitimate” reasons to 

justify the prosecutor’s peremptory challenges. 

The court then acknowledged that the prosecutor’s stated 

reasons for striking Kevin C. and Simeon G. were not as 

“obvious” (as the reasons for striking another prospective juror, 

Isabella B.). The court, however, concluded that the prosecutor’s 

reasons for striking Kevin C. and Simeon G. were legitimate and 

valid. The court added, “I don’t need to remind counsel that 

we’re treading on thin ice in this area, and the consequences of 

falling through means we start all over again.” While the 

discussion was brief, and while the trial court could have done 

more to make a fuller record and itself acknowledged it was 

making a somewhat close call, the record shows that the court 

considered the prosecutor’s reasons and, as discussed below, 

those reasons were plausible and supported by the record. In 

these circumstances, while a more detailed colloquy may well 

have been helpful, the prosecutor and the trial court adequately 

developed the record, and on this record, we conclude that the 

trial court’s findings are entitled to deference. (See People v. 

 

opn., post, at p. 2.) We disagree. The fact that the trial court 

did not “understand” the strikes as to Kevin C. and Simeon G. 

— before the prosecutor provided his reasons for them — and 

asked the prosecutor to explain those strikes does not mean that 

the prosecutor’s reasons, once provided, were not self-evident. 

Nor do we require that the prosecutor’s reasons be “obvious.” 

Rather, the prosecutor’s reasons, once provided, “were either 

self-explanatory or were explained at the hearing.” (People v. 

Smith (2018) 4 Cal.5th 1134, 1162 (Smith).) For this reason, 

Gutierrez’s reasoning is “inapplicable here.” (Ibid.) 
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Opinion of the Court by Groban, J.

32

Hardy (2018) 5 Cal.5th 56, 76 (Hardy) [“ ‘ “When the 

prosecutor’s stated reasons are both inherently plausible and 

supported by the record, the trial court need not question the 

prosecutor or make detailed findings” ’ ”].) 

i. Comparative juror analysis 

“Also relevant here, in light of defendant’s appellate 

arguments, are principles pertaining to comparative juror 

analysis, which, on a claim of race-based peremptory challenges, 

compares the voir dire responses of the challenged prospective 

jurors with those of similar jurors who were not members of the 

challenged jurors’ racial group, whom the prosecutor did not 

challenge. [Citation.] ‘[C]omparative juror analysis is but one 

form of circumstantial evidence that is relevant, but not 

necessarily dispositive, on the issue of intentional 

discrimination.’ ” (O’Malley, supra, 62 Cal.4th at pp. 975–976.) 

Comparative juror analysis is appropriately confined to the 

jurors defendant has specifically discussed in his appellate 

briefing. (Winbush, supra, 2 Cal.5th at pp. 442–443.)

“Where, as here, the comparative analysis was not made 

at trial, ‘the prosecutor generally has not provided, and was not 

asked to provide, an explanation for nonchallenges.’ [Citation.] 

Therefore, ‘an appellate court must be mindful that an 

exploration of the alleged similarities at the time of trial might 

have shown that the jurors in question were not really 

comparable.’ [Citation.] When a defendant asks for 

comparative juror analysis for the first time on appeal, we have 

held that ‘such evidence will be considered in view of the 

deference accorded the trial court’s ultimate finding of no 

discriminatory intent.’ ” (O’Malley, supra, 62 Cal.4th at p. 976.) 

We have also held that under these circumstances, “ ‘a 
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Opinion of the Court by Groban, J.

33

reviewing court need not, indeed, must not turn a blind eye to 

reasons the record discloses for not challenging other jurors even 

if those other jurors are similar in some respects to excused 

jurors.’ ” (Id. at p. 977.) 

In supplemental briefing, defendant takes issue with our 

approach to conducting comparative juror analysis for the first 

time on appeal. He argues that we should ignore some of the 

Attorney General’s efforts to distinguish challenged prospective 

jurors from those purportedly similar jurors whom the 

prosecutor did not challenge. Considering such distinctions, 

defendant argues, is inconsistent with recent decisions by the 

high court and “increases the risk that racial discrimination will 

persist in the criminal justice system.”

Defendant’s argument rests primarily on Miller-El v. 

Dretke (2005) 545 U.S. 231 (Miller-El). There, the high court 

made clear that “a prosecutor simply has got to state his reasons 

[for a peremptory challenge] as best he can and stand or fall on 

the plausibility of the reasons he gives.” (Id. at p. 252.) The 

high court also cited this portion of its opinion in a footnote 

criticizing the dissent for “focus[ing] on reasons the prosecution 

itself did not offer” when the dissent explained why the 

nonchallenged jurors “were otherwise more acceptable to the 

prosecution than [the challenged prospective juror].” (Id. at 

p. 245, fn. 4.) Relying on these two excerpts, defendant observes 

that, in response to his comparative juror analysis, the Attorney 

General offers “new reasons for why the white jurors were not 

discharged” and argues that this “approach is barred by MillerEl’s stand or fall principle because it is simply the flip side of the 

same coin of offering new reasons for the discharge of the black 

jurors” and, moreover, is explicitly rejected by Miller-El’s 

footnote four. Defendant further argues that this approach is 
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Opinion of the Court by Groban, J.

34

inconsistent with Snyder v. Louisiana (2008) 552 U.S. 472 

(Snyder) and Foster v. Chatman (2016) 578 U.S. ___ 

[136 S.Ct. 1737] (Foster) because the state in those cases offered 

new reasons for why the White jurors were not discharged and, 

without discussing those reasons, the high court concluded that, 

for a multitude of reasons, the peremptory strikes were 

motivated in substantial part by discriminatory intent. 

We have recognized that “in judging why a prosecutor 

exercised a particular challenge, the trial court and reviewing 

court must examine only the reasons actually given. ‘If the 

stated reason does not hold up, its pretextual significance does 

not fade because a trial judge, or an appeals court, can imagine 

a reason that might not have been shown up as false.’ ” (Jones,

supra, 51 Cal.4th at p. 365, quoting Miller-El, supra, 545 U.S. 

at p. 252.) However, we have rejected the further argument that 

in conducting comparative juror analysis for the first time on 

appeal, “we may not consider reasons not stated on the record 

for accepting other jurors.” (Jones, at p. 365.) In rejecting that 

argument, we have observed that “no authority has imposed the 

additional burden [on the prosecution] of anticipating all 

possible unmade claims of comparative juror analysis and 

explaining why other jurors were not challenged.” (Ibid.) 

Absent further explanation from the high court, we do not 

read Miller-El to require us when conducting comparative juror 

analysis for the first time on appeal, to turn a blind eye to 

reasons the record discloses for not challenging other jurors even 

if those jurors are similar in some respects to excused jurors. 

Reading Miller-El to restrict our review of the record in this 

manner would seem inconsistent with the high court’s 

subsequent statement that the high court in Miller-El “made it 

clear that in considering a Batson objection, or in reviewing a 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

35

ruling claimed to be Batson error, all of the circumstances that 

bear upon the issue of racial animosity must be consulted.” 

(Snyder, supra, 552 U.S. at p. 478.) Nor do we read Snyder and 

Foster, supra, 578 U.S. ___ [136 S.Ct. 1737] to expressly prohibit 

us from considering such reasons the record discloses for not 

challenging other jurors in these circumstances. 

That said, we take the opportunity to clarify and to 

emphasize the following two points about our approach to 

comparative juror analysis. 

First, comparative juror analysis is a form of 

circumstantial evidence that is relevant on the issue of 

purposeful discrimination. “If a prosecutor’s proffered reason 

for striking a black panelist applies just as well to an otherwisesimilar nonblack who is permitted to serve, that is evidence 

tending to prove purposeful discrimination to be considered at 

Batson’s third step.” (Miller-El, supra, 545 U.S. at p. 241.) 

When a prosecutor states multiple reasons for challenging a 

juror, a comparison between the challenged juror and a similar 

nonchallenged juror in regard to any one of the prosecutor’s 

stated reasons is relevant, but not necessarily dispositive, on the 

issue of purposeful discrimination. (See id. at p. 247, fn. 6 [“The 

dissent contends that there are no white panelists similarly 

situated to [the challenged jurors] because ‘ “ ‘[s]imilarly 

situated’ does not mean matching any one of several reasons the 

prosecution gave for striking a potential juror — it means 

matching all of them.” ’ [Citation.] None of our cases announces 

a rule that no comparison is probative unless the situation of the 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

36

individuals compared is identical in all respects, and there is no 

reason to accept one”].)9

Second, when conducting comparative juror analysis for

the first time on appeal, we need not turn a blind eye to reasons 

the record discloses for not challenging other jurors. “This is so 

because a party legitimately may challenge one prospective 

juror but not another to whom the same particular concern 

applies. [Citation.] ‘Two panelists might give a similar answer 

on a given point. Yet the risk posed by one panelist might be 

offset by other answers, behavior, attitudes or experiences that 

make one juror, on balance, more or less desirable. These 

realities, and the complexity of human nature, make a formulaic 

comparison of isolated responses an exceptionally poor medium 

to overturn a trial court’s factual finding.’ ” (People v. Chism

 

9 The dissent emphasizes that recent decisions by the high 

court found “single-issue comparisons among jurors to be highly 

probative of discrimination.” (Dis. opn., post, at p. 16.) As 

stated, we agree that a single-issue comparison among jurors is 

a form of circumstantial evidence that is relevant. However, 

such comparisons are not necessarily dispositive on the issue of 

purposeful discrimination but rather, must be considered within 

all of the relevant circumstances. (See Flowers v. Mississippi

(2019) 588 U.S. __, __ [139 S.Ct. 2228, 2250] [“[i]n a different 

context, the [challenged juror’s] strike might be deemed 

permissible,” but “we must examine the whole picture” and the 

comparisons between the challenged and nonchallenged jurors 

“cannot be considered in isolation”].) The fact that the high 

court found single-issue comparisons to be highly probative of 

discrimination within the circumstances of a particular case is 

not inconsistent with our analysis here, which, as discussed 

below, recognizes that such comparisons are relevant but 

ultimately concludes, within all of the relevant circumstances, 

that substantial evidence supports the trial court’s denial of 

defendant’s Batson/Wheeler motion. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

37

(2014) 58 Cal.4th 1266, 1319 (Chism); accord, People v. Krebs 

(2019) 8 Cal.5th 265, 293–294.) 

However, “we bear in mind that comparative juror 

analysis is not simply an exercise in identifying any conceivable 

distinctions among prospective jurors. ‘A per se rule that a 

defendant cannot win a Batson claim unless there is an exactly 

identical white juror would leave Batson inoperable; potential 

jurors are not products of a set of cookie cutters.’ [Citation.] 

Rather, because the ultimate question before us concerns the 

prosecutor’s motivations in exercising the challenge in question, 

we must ask whether there were any material differences 

among the jurors — that is, differences, other than race, that we 

can reasonably infer motivated the prosecutor’s pattern of 

challenges.” (O’Malley, supra, 62 Cal.4th at p. 977.) In 

determining whether there were any material differences 

among the jurors, we note that differences among the jurors

generally will be more probative if they closely relate to reasons 

the prosecutor has stated for a peremptory challenge. Because 

in this case we rely on differences among the jurors that closely 

relate to reasons the prosecutor has stated for a peremptory 

challenge, we need not opine on whether differences among the 

jurors can be material even if they are wholly unrelated to

reasons the prosecutor has stated for a peremptory challenge. 

b. Prospective Juror Kevin C. 

As a preliminary matter, defendant accurately points out

that the prosecutor questioned Kevin C. regarding the death 

penalty but did not question Kevin C. regarding DNA evidence 

or the O.J. Simpson verdict. (See Smith, supra, 4 Cal.5th at 

p. 1152 [“an attorney’s failure to meaningfully examine a 

prospective juror about a subject about which the attorney 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

38

claims to be concerned can constitute evidence of pretext”].) The 

prosecutor’s failure to question Kevin C. about “each and every 

area of articulated concern,” however, does not necessarily 

demonstrate that those concerns were pretextual. (People v. 

Cowan (2010) 50 Cal.4th 401, 451 (Cowan).) That the 

prosecutor failed to engage Kevin C. in voir dire is also less 

significant where, as here, the prosecutor received before voir 

dire, Kevin C.’s responses to the 31-page written questionnaire 

containing 130 questions. (See People v. Melendez (2016) 

2 Cal.5th 1, 19 (Melendez) [“ ‘plac[ing] little weight on the 

prosecutor’s failure to individually or more thoroughly question 

a prospective juror before exercising a peremptory challenge’ ” 

where the prosecutor reviewed a “detailed” jury questionnaire 

and heard defense counsel question the prospective juror];

Jones, supra, 51 Cal.4th at p. 363.) Indeed, the prosecutor’s 

concerns about Kevin C.’s views regarding DNA evidence and 

the O.J. Simpson verdict “arose from a pair of questionnaire 

responses that spoke for themselves; no additional clarification 

was needed to ascertain [Kevin C.’s] meaning.” (Smith, supra,

4 Cal.5th at p. 1152; cf. People v. Lewis and Oliver (2006) 

39 Cal.4th 970, 1018, fn. 14 [“One inference that may be drawn 

from any such decision to ask few or no questions is that the 

prosecutor had already properly determined that a challenge 

was warranted based on the questionnaire or existing voir dire 

answers, and that further questioning was unnecessary”].) 

Defendant also accurately points out that the prosecutor 

did not question other prospective jurors regarding DNA 

evidence or the O.J. Simpson verdict during voir dire. 

Defendant argues that this circumstance suggests that the 

prosecutor was not sincerely concerned about jurors’ views 

regarding these topics. Our review of the record confirms that 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

39

both the prosecutor and the defense asked very few questions 

during voir dire.10 

However, our review of the record also indicates that, 

contrary to defendant’s argument, the prosecutor appeared 

interested in jurors’ views regarding DNA evidence and the O.J. 

Simpson verdict. For the questionnaire, the prosecutor 

proposed various questions regarding scientific evidence, even 

leading defense counsel to request modifications to those 

 

10 This may have been in part due to the circumstances 

leading up to voir dire. Before jury selection, defense counsel 

proposed that the parties should ask any questions of the 

prospective jurors — even questions that did not pertain to the 

death penalty — during Hovey questioning. Defense counsel 

and the prosecutor had “some confusion or disagreement” in this 

regard because the prosecutor anticipated asking questions 

pertaining only to the death penalty or to confidential matters 

during Hovey questioning and thus was “only selecting 

[prospective jurors] for possible Hovey voir dire who have 

questionable answers that need further questioning as to [the] 

death penalty.” The trial court ultimately agreed to follow the 

prosecutor’s approach for Hovey questioning and to provide the 

opportunity for the parties to question the prospective jurors 

regarding other matters during voir dire. The court, however, 

expected that “there’s not going to be a lot of questions” during 

voir dire since the parties had received “most of the information 

from the questionnaire.” Then, during Hovey questioning, the 

parties primarily questioned the prospective jurors regarding 

the death penalty but, at times, questioned the prospective 

jurors regarding other matters. After Hovey questioning, the 

court said, “I’m gathering that there’s not going to be a whole lot 

of individual questioning of these jurors, that you’ve pretty 

much covered those that you — the questions that you had from 

the questionnaires.” Defense counsel responded that he did not 

“have a need to ask any further questions at all,” but if the 

prosecutor planned to ask any further questions, defense 

counsel might “do a couple things.” 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

40

questions because defense counsel “really [didn’t] like having 

blood and semen, DNA, and all that stuff repeated over, and over 

again in the questions as though it’s an important thing for [the 

prospective jurors] to be worried about in the case before they 

even hear what the evidence is.” During voir dire, the 

prosecutor also asked the prospective jurors as a group whether 

they would “have a problem applying basically the law, and 

finding circumstantial evidence is every bit as important as 

direct evidence.” The prosecutor later explained that he 

considered O.J. Simpson’s case to be similar to defendant’s case 

given that both relied on DNA evidence and circumstantial 

evidence. Keeping these and all relevant circumstances in 

mind, we proceed to examine each of the prosecutor’s stated 

reasons for striking Kevin C.

Regarding the prosecutor’s first reason, the prosecutor 

stated, “[Kevin C.] in his questionnaire compared DNA to a 

polygraph. That it wasn’t a for sure thing.” The prosecutor’s 

case relied heavily on DNA evidence. The prosecutor’s reason 

for striking Kevin C. is plausible, supported by the record, and 

race neutral. However, defendant argues that five other jurors 

(Jurors Nos. 10 and 11 and Alternate Jurors Nos. 1, 4, and 5) 

expressed similar reservations about DNA evidence yet were 

neither questioned nor excused by the prosecutor. Not so. 

Unlike Kevin C., these other jurors did not express a 

negative opinion on DNA evidence. Rather, when asked about 

DNA evidence, Juror No. 10 replied, “should be admitted if can 

show + prove accuracy;” Alternate Juror No. 1 replied, “All 

evidence if more conclusive than not should be considered;” and 

Alternate Juror No. 4 replied, “No opinion.” In addition,

although Alternate Juror No. 5 replied, “It[’]s ok but shouldn’t 

be only evidence used” and stated elsewhere, “seems it could be 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

41

accurate,” this response merely emphasized his preference to

consider all evidence, a concept that he repeated elsewhere in 

his questionnaire. Lastly, Juror No. 11 responded, “OK if it[’]s

true evidence.” This response might suggest that some DNA 

evidence may not be “true” evidence, but even if so, this response 

was less negative than Kevin C.’s response, which characterized 

all DNA evidence as “like a polygraph not a for sure certain.” 

Thus, the prosecutor “could plausibly have distinguished” 

among these views regarding DNA evidence in deciding to strike 

only Kevin C. (People v. Mills (2010) 48 Cal.4th 158, 183 (Mills)

[comparative juror analysis unpersuasive where prosecutor 

distinguished among prospective jurors’ views on scientific 

evidence]; see also People v. Wilkinson (2004) 33 Cal.4th 821,

850 [discussing “the deep division in the scientific and legal 

communities regarding the reliability of polygraph evidence”].)

As to the second reason, the prosecutor accurately 

characterized Kevin C.’s questionnaire responses regarding the 

death penalty as “tentative.” “A prospective juror’s views about 

the death penalty are a permissible race- and group-neutral 

basis for exercising a peremptory challenge in a capital case.” 

(People v. McDermott (2002) 28 Cal.4th 946, 970–971; see e.g.,

Winbush, supra, 2 Cal.5th at p. 436 [a juror’s religious 

reservations about the death penalty can justify a peremptory 

challenge]; People v. Garcia (2011) 52 Cal.4th 706, 749 [a juror’s 

“mixed and vague” views about the death penalty can justify a 

peremptory challenge]; People v. Lomax (2010) 49 Cal.4th 530, 

572 (Lomax) [a juror’s reluctance to impose the death penalty 

can justify a peremptory challenge].) 

Kevin C.’s questionnaire responses indicated that he was 

uncertain whether he could vote for a death sentence and that 

he had religious reservations about the death penalty. He
PEOPLE v. MILES

Opinion of the Court by Groban, J.

42

wrote, “there are members of society who do bad things and 

don[’]t deserve to be here, can I kill them? unknown at this 

time.” He believed that the death penalty was unfair and said 

that he would be reluctant to sign a verdict form for a sentence 

of death or state the verdict in court. He identified himself as a 

Christian who generally agreed with his religion’s view that 

“thou should not kill.” Asked whether he had a moral, 

philosophical, or religious objection to the death penalty, he 

checked “yes,” commenting, “God should decide life or death, but 

some don’t deserve[] life.” He also wrote, “I like to decide who 

could stay in society but not decide who stays on earth (I’d like 

to sleep).” 

It is true that Kevin C. said during Hovey questioning that 

he could vote for a death sentence, and when asked about his 

religious objection to the death penalty, he explained, “I feel 

where I live I should decide. Where I’m a Christian. I go to 

church, so I think, you know, I can’t. I think God should decide. 

But, you know, I think I should decide if I live in the 

community.” But the prosecutor acknowledged this, stating, “I 

think that in person his, his statements about the death penalty 

didn’t rise to a level for cause; but, however, I think when you 

take the totality of his responses, I think, I mean those are 

essentially the reasons that I’m stating.” Given “[t]he totality 

of” Kevin C.’s responses regarding the death penalty, the record

amply supports the prosecutor’s stated concern. (See Lomax,

supra, 49 Cal.4th at p. 572 [“[If] statements or attitudes of the 

juror suggest that the juror has ‘reservations or scruples’ about 

imposing the death penalty, this demonstrated reluctance is a 

race-neutral reason that can justify a peremptory challenge, 

even if it would not be sufficient to support a challenge for 

cause”].) 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

43

Defendant nevertheless contends that the prosecutor’s 

reason was pretextual because Kevin C.’s reservations about the 

death penalty mirrored those of Jurors Nos. 2, 5, 6, 8, and 9 and 

Alternate Jurors Nos. 1 and 4, whom the prosecutor did not 

strike. Unlike Kevin C., none of the jurors identified by 

defendant expressed a religious objection to the death penalty. 

(Cf. Winbush, supra, 2 Cal.5th at p. 436 [upheld peremptory 

challenge where “[t]he trial court observed [the prospective 

juror’s] statement that only God can take a life expressed a 

‘startling and dramatic’ reservation about the death penalty 

based on what appeared to be the juror’s strongly held religious 

beliefs [and] [t]he court observed that no other juror had 

expressed such a strongly held view”].) 

Instead, most of these jurors merely expressed a degree of 

unfamiliarity or slight discomfort with the death penalty. For 

example, Alternate Juror No. 4 appeared unfamiliar with the 

death penalty, indicating that she did not know whether the 

death penalty was used too often or too seldom or whether it was 

fair or unfair, and stating, “I would have to decide based on the 

evidence + the judge[’]s instructions regarding [the] death 

penalty.” Juror No. 5 had “mixed emotions” about the death 

penalty, but she believed the death penalty was fair, she would 

vote to keep it “[j]ust in case,” and she would not be reluctant to 

vote for a sentence of death, sign the verdict form, or state the 

verdict in court. Juror No. 9 stated, “I have mixed emotions. I 

must know that someone is actually guilty, I feel the death 

penalty is fair.” She also would vote to keep the death penalty, 

believed it was used too seldom, and would not be reluctant to 

vote for a sentence of death, sign the verdict form, or state the 

verdict in court. And, while Alternate Juror No. 1 made clear 

that her opinion on the death penalty “depend[ed] on the crime,” 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

44

she also confirmed that she believed the death penalty was fair 

and would not be reluctant to vote for a death sentence, sign the 

verdict form, or state the verdict in court. 

Some of the jurors identified by defendant, however,

expressed more significant reservations about the death 

penalty. Juror No. 6 commented, “insecure about my feelings. I 

do believe in the death penalty but do not know how I feel about 

administering it.” But, she, too, said that she would vote to keep 

the death penalty, that it was fair and used too seldom, and that 

she would not be reluctant to personally vote for a death 

sentence, sign the verdict form, or state the verdict in court. She 

also identified with Group 2, which was defined as “I favor the 

death penalty, but will not always vote for death in every case 

of murder with special circumstances.” During Hovey

questioning, she said that she might be reluctant to sentence 

somebody to death, but asked whether “feeling guilty” in her 

“heart” might “affect the way [she] act[s] on the way [she] feel[s] 

in [her] head,” she confirmed, “No, I can truthfully say, no, I 

would not. No. It’s just my own feelings, I should say.” She 

confirmed that she could follow the law, she could sign a verdict 

form for a death sentence, and although she “wouldn’t feel good 

about it,” she could state the verdict for a death sentence in 

court. 

In addition, Juror No. 8 identified with Group 4, which 

was defined as “I have doubts about the death penalty, but I 

would not vote against it in every case.” He believed the death 

penalty was used too often and said that the death penalty 

“should be reserved for only the most heinous of crimes.” But he 

characterized the death penalty as fair and would vote to keep 

it because it is a “necessary evil.” He said that his views were 

not such that he could never vote for a death sentence,
PEOPLE v. MILES

Opinion of the Court by Groban, J.

45

explaining, “if the situation proved to warrant such a 

punishment, I would vote for it.” He also said that he would not 

be reluctant to personally vote for a death sentence, sign the 

verdict form, or state the verdict in court, although he “would 

not automatically seek the highest punishment.” During Hovey

questioning, Juror No. 8 said, “I used to really be for the death 

penalty, but since then I’ve changed my views to I’m not totally 

against it, but I’m not totally for it either.” He acknowledged 

that he viewed life imprisonment as a more suitable 

punishment. But, asked whether this view might cause him to 

favor that sentence regardless of the evidence, he replied, “Not 

necessarily. That’s my personal view, you know, depending on 

the evidence, you know. I would choose what I thought was 

right.” He confirmed that he could follow the law and could vote 

for a death sentence.

We find that Juror No. 6’s responses and Juror No. 8’s 

responses were not so similar to Kevin C.’s responses regarding 

the death penalty as to cast doubt on the trial court’s acceptance 

of the prosecutor’s reason for striking Kevin C. While Juror No. 

6 expressed some discomfort and reluctance with voting for a 

death sentence, she made clear that she supported the death 

penalty and she ultimately confirmed that she could vote for a 

death sentence. And while Juror No. 8 believed that the death 

penalty should be reserved for “only the most heinous of crimes,” 

he made clear that he supported the death penalty and could 

vote for it in those circumstances. By contrast, among Kevin 

C.’s tentative and vacillating responses about both his view on 

the death penalty and his ability to vote for a death sentence, 

Kevin C. indicated that he had a religious objection to the death 

penalty and agreed with his religion’s view that “thou should not 

kill.” These responses called into question the fundamental 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

46

propriety of the death penalty and differed from Juror No. 6’s 

belief in the death penalty and Juror No. 8’s opinion that the 

death penalty was a “necessary evil” for the “most heinous of 

crimes.” 

Lastly, Juror No. 2 stated, “I am not in favor of the death 

penalty,” and believed that it was not fair and was used too 

often. He believed the purpose of the death penalty was 

“supposedly to deter crime.” Asked whether he had a moral, 

philosophical, or religious objection to the death penalty, he

checked “yes” and elaborated, “I do not believe it deters crime.” 

He did not refer to any religious beliefs, and he subsequently 

said that he did not have a religious preference or affiliation. 

Although he initially said that he “[w]ould not vote” to decide 

whether or not to keep the death penalty, he subsequently said 

that he probably would vote to keep the death penalty. In 

addition, he said that his views were not such that he could 

never vote for a death sentence, explaining, “I would and could 

follow the law.” He said that he would not be reluctant to 

personally vote for a death sentence or personally sign a verdict 

form for a death sentence, although he would be reluctant to 

stand up in court, facing the defendant, and state the verdict for 

a death sentence. He identified himself as belonging to Group 

4, which was defined as “I have doubts about the death penalty, 

but I would not vote against it in every case.” During Hovey

questioning, the prosecutor asked, “I think one of your concerns 

is you were kind of skeptical that maybe it doesn’t deter crime, 

if that’s the purpose of it . . . . [W]ould you be able to return, 

personally vote for a death verdict if you felt it was, if it felt [sic] 

the evidence supported, and the law supported it?” Juror No. 2 

replied, “Yes.”
PEOPLE v. MILES

Opinion of the Court by Groban, J.

47

We find that Juror No. 2 made clear that he did not 

support the death penalty, and that Juror No. 2’s responses 

regarding the death penalty were similar in some respects to 

Kevin C.’s responses regarding the death penalty. We agree 

with defendant that the comparison between Juror No. 2 and 

Kevin C. has some probative value. That said, we also find that, 

unlike Kevin C., who gave tentative and vacillating responses 

about his view on the death penalty and his ability to impose it, 

Juror No. 2 was more clear and consistent in both respects: 

Juror No. 2 more clearly and consistently said that he did not 

support the death penalty, but Juror No. 2 also more clearly and 

consistently said that he could impose it. When the prosecutor 

asked Juror No. 2 whether he would be able to personally vote 

for a death verdict even though he was “kind of skeptical that 

maybe it doesn’t deter crime,” Juror No. 2 replied, “Yes.” Juror 

No. 2’s responses differed from Kevin C.’s more tentative and 

conflicted responses: “there are members of society who do bad 

things and don[’]t deserve to be here, can I kill them? unknown 

at this time” and “I like to decide who could stay in society but 

not decide who stays on earth (I’d like to sleep).” In addition, 

unlike Kevin C., Juror No. 2 did not invoke a religious objection 

to the death penalty. Thus, comparing the totality of their 

respective responses regarding the death penalty, we find some 

similarities as well as some differences, and we conclude that 

the comparison has probative value within our inquiry as to 

whether the prosecutor’s stated reason for striking Kevin C. was 

pretextual. 

We additionally note that, in stark contrast to Kevin C., 

who believed DNA evidence was “like a polygraph not a for sure

certain” and who was not upset by the O.J. Simpson verdict 

because he found it “hard to believe” Simpson was solely 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

48

responsible for the crimes and suggested “biases” created much 

of the evidence, Juror No. 2 believed that DNA evidence was 

“accurate” and was upset by the O.J. Simpson verdict because 

“[Juror No. 2] believe[d] it was proven beyond a reasonable 

doubt that [Simpson] was guilty.” By noting these differences

between Juror No. 2 and Kevin C., we do not intend to suggest 

that the similarities between Juror No. 2 and Kevin C. in regard 

to the death penalty are irrelevant within our analysis or that 

defendant must identify an exactly identical juror to prove 

purposeful discrimination. (See ante, at pp. 35–37.) Rather, 

“because the ultimate question before us concerns the 

prosecutor’s motivations in [striking Kevin C.], we must ask 

whether there were any material differences [between Kevin C. 

and Juror No. 2] — that is, differences, other than race, that we 

can reasonably infer motivated the prosecutor’s pattern of 

challenges.” (O’Malley, supra, 62 Cal.4th at p. 977.) 

Considering these and all relevant circumstances, we ultimately 

find no adequate basis to overturn the trial court’s ruling.

As to the prosecutor’s final reason, Kevin C. checked “no”

when asked whether he was upset by the O.J. Simpson verdict 

and said, “To [sic] hard to believe one man did it all, I believe 

biases created a lot of the circumstance [sic] evidence.” We have 

previously held that a prospective juror’s opinion of the O.J. 

Simpson trial is a nonbiased ground for a peremptory strike. 

(See Smith, supra, 4 Cal.5th at p. 1153; Vines, supra,

51 Cal.4th at pp. 851–852; Mills, supra, 48 Cal.4th at p. 184.) 

The NAACP Legal Defense & Educational Fund, Inc. 

(LDF), however, has filed an amicus curiae brief arguing that 

asking about a prospective juror’s opinion of the O.J. Simpson 

verdict is a proxy for race because most Black people support the 

verdict and most White people do not. LDF refers to studies 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

49

finding, in 1995, that approximately 22 percent of Black people 

and 79 percent of White people believed Simpson was guilty. In 

response, the Attorney General argues, inter alia, that public 

opinion regarding the Simpson verdict is less clear than LDF 

suggests. The Attorney General refers to studies finding that 

“the number of Blacks who believe Simpson was guilty more 

than doubled to 45% by 2007 and became a majority view of 57% 

by 2015,” and thus “selection of Miles’s jury occurred at a time 

when the percentage of Whites who believed Simpson guilty was 

decreasing and the percentage of Blacks who believed him guilty 

was increasing.”

LDF’s argument that more Blacks than Whites support 

the Simpson verdict, “even if factually correct, does not establish 

that the criterion is not race neutral.” (Melendez, supra, 

2 Cal.5th at p. 18.) As we discussed in Melendez, the plurality 

opinion in Hernandez v. New York (1991) 500 U.S. 352 

concluded that “ ‘[w]hile the prosecutor’s criterion might well 

result in the disproportionate removal of [prospective jurors of a 

specific ethnicity], that disproportionate impact does not turn 

the prosecutor’s actions into a per se violation of the Equal 

Protection Clause.’ ” (Melendez, at p. 17, quoting Hernandez,

supra, 500 U.S. at p. 361.) But “the plurality [in Hernandez] did 

find that a disparate impact would be relevant to the overall 

inquiry.” (Melendez, at p. 17.) Thus, if LDF’s argument that 

more Blacks than Whites support the Simpson verdict is 

factually correct, “this circumstance is relevant to the inquiry as 

to whether the reasons were sincere and not merely pretextual.” 

(Id. at p. 18.) 

We assume that LDF’s argument is factually correct, and 

we consider this circumstance to be relevant to our inquiry as to 

whether the prosecutor’s reason was sincere and not merely 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

50

pretextual. However, the record here does not show that the 

prosecutor’s reason was pretextual. The voir dire in this case 

began in Southern California approximately three years after 

the Simpson trial in Los Angeles, making it likely that the 

prospective jurors were familiar with and had formed opinions 

about that case. The prosecutor specifically expressed concern 

about the prospective jurors’ opinions of the Simpson verdict 

because the prosecutor considered Simpson’s case to be similar 

to defendant’s case given that both cases relied on DNA evidence 

and circumstantial evidence. And it appears that the prosecutor 

was not alone in considering Simpson’s case to be similar in 

some respects to defendant’s case. For example, while 

discussing the draft jury questionnaire regarding scientific 

evidence, the court commented, “I’m assuming part of [the 

prosecutor’s] concern is whether there’s a juror that just says, I 

absolutely would not believe anything that involved DNA 

evidence based on my daily watching of the O.J. Simpson trial 

or something of that nature.” For another example, while 

questioning the prospective jurors about DNA evidence during 

voir dire, defense counsel twice referred to the O.J. Simpson 

case, including to comment that “there’s been a lot of publicity 

about [DNA] [and] most people are familiar, to some degree or 

another, with the O.J. Simpson case.” 

In addition, the prosecutor struck several non-AfricanAmerican prospective jurors who were not upset by the verdict, 

suggesting that the prosecutor’s concern was sincere and not 

merely a pretext for excusing African-American prospective 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

51

jurors. (Cf. People v. Woodruff (2018) 5 Cal.5th 697, 755.)11 The 

prosecutor struck, in total, five non-African-American 

prospective jurors. Four of these five prospective jurors were 

not upset by the O.J. Simpson verdict: Malinda M. (a Hispanic 

woman) was not upset with the O.J. Simpson verdict because “I 

think there was doubt in the case and some things were done 

improper that [led] to the not guilty verdict;” Ronald W. (a White 

man) was not upset with the O.J. Simpson verdict because 

“evidently they had weighed all the evidence and come to 

agreement;” Richard L. (a Hispanic man) was not upset with the 

O.J. Simpson verdict because “the D.A. did not prove beyond a 

reasonable doubt;” and Lynia B. (a White woman) was not upset 

with the O.J. Simpson verdict because “to[o] many unanswered 

questions was neither convinced of guilt nor innocence.” After

striking Malinda M. (a Hispanic woman) and Ronald W. (a 

White man), the prosecutor specifically said that he had excused 

jurors “of Hispanic origin and Caucasian origin, and the 

common denominator, essentially, is that they were not, were 

not upset by the O.J. Simpson verdict.” 

 

11 Also, the prosecutor did not strike Alternate Juror No. 2, 

who was African-American and was not upset by the O.J. 

Simpson verdict. The Attorney General argues that this fact 

tends to show that “the prosecutor was motivated by the jurors’ 

individual views instead of their race.” Alternate Juror No. 2 

indeed checked “no” when asked whether she was upset by the 

Simpson verdict, but she explained, “The evidence was there 

which told me he was guilty.” In light of Alternate Juror No. 2’s 

explanation, it appears possible that she simply checked the 

wrong box when asked whether she was upset by the Simpson 

verdict. Because Alternate Juror No. 2’s answer could be 

interpreted in any number of ways on the cold appellate record, 

we find that it is of little help in analyzing the sincerity of the 

prosecutor’s reason. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

52

Finally, contrary to defendant’s argument, comparing

Kevin C.’s response to other jurors’ responses does not 

undermine the credibility of this reason. Unlike Kevin C., who 

was not upset by the O.J. Simpson verdict because he found it 

“hard to believe” that Simpson was solely responsible for the 

crimes, and suggested that “biases” created much of the 

circumstantial evidence, Alternate Juror No. 5 simply checked 

“no” when asked whether he was upset by the verdict and

expressed no further thoughts regarding it. Similarly, while 

Juror No. 6 checked “no” to the same question but commented, 

“evidence not clear,” Juror No. 6’s response was more measured 

than and dissimilar to Kevin C.’s response. (See Vines, supra,

51 Cal.4th at p. 851 [responses by two prospective jurors

“dissimilar” where one said, “the Simpson trial ‘restored’ his 

‘faith’ ” and the other said, “ ‘It raised my concerns on jury 

selection and impact of televising a trial’ ”].) Neither Alternate 

Juror No. 5’s response nor Juror No. 6’s response resembled

Kevin C.’s harsh rebuke of the prosecution’s evidence in the O.J. 

Simpson case, nor did they inject the concept of “biases” into the 

result.

In short, each of the prosecutor’s reasons is supported by 

the record, and considered together, they provide ample, 

nonbiased grounds for striking Kevin C. Substantial evidence 

therefore supports the trial court’s conclusion that the 

prosecutor struck Kevin C. for reasons other than his race. 

c. Prospective Juror Simeon G. 

The first reason offered by the prosecutor was that Simeon 

G. liked his own opinion over other people’s opinions. In his 

questionnaire, Simeon G. described himself as a leader, rather 

than a follower, because he liked his opinion over other people’s 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

53

opinions. Although Simeon G. did not assert in this or other 

questionnaire responses that he would be unwilling or unable to 

deliberate with fellow jurors, the prosecutor reasonably could be 

concerned that Simeon G. might have difficulty considering 

other opinions and deliberating with fellow jurors —

particularly given that Simeon G. had not worked with a group 

of people to make a decision before. (Cf. Lenix, supra, 44 Cal.4th 

at p. 623 [“[a]n advocate is entitled to consider a panelist’s 

willingness to consider competing views [and] openness to 

different opinions”]; People v. Gutierrez (2002) 28 Cal.4th 1083, 

1125 [a prosecutor could feel concerned about a prospective 

juror’s comment that “he would not be influenced by anyone’s 

opinion but his own”].) 

The dissent does not attach any import to Simeon G.’s 

response, positing that “[e]veryone likes his or her opinion over 

other people’s.” (Dis. opn., post, at p. 5.) But the prosecutor was 

not required to interpret the response as the dissent does. It is 

not only that Simeon G. said he liked his opinion over other 

people’s; it is also that he made this statement in order to 

explain why he would describe himself as a “leader” rather than 

a “follower.” The prosecutor could reasonably have understood 

this response, in context, to suggest that if another person had 

a different opinion, Simeon G.’s view of leadership would cause 

him to prefer his own opinion “over” the opinion of the other 

person. It was not unreasonable for the prosecutor to ascribe 

some significance to Simeon G.’s response. 

That said, we recognize that the prosecutor did not ask 

Simeon G. during voir dire about his stated preference for his 

own opinion over other people’s opinions. The prosecutor’s 

failure to engage Simeon G. on each concern, however, is not 

conclusive in determining whether the prosecutor’s reasons 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

54

were pretextual. (See, e.g., Cowan, supra, 50 Cal.4th at p. 451 

[although a prosecutor’s failure to engage in meaningful voir 

dire can suggest the prosecutor’s stated reasons are pretextual, 

the prosecutor’s failure to question the prospective jurors “about 

each and every area of articulated concern does not undermine 

the conclusion that her stated race-neutral reasons for excusing 

these prospective jurors were genuine and not pretextual”]; 

Jones, supra, 51 Cal.4th at p. 363.) We are mindful that lawyers 

may refrain from asking questions for a variety of reasons. (Cf. 

People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1018, fn. 14 

[recognizing that “lawyers must use their voir dire time 

judiciously”].) Here, asking Simeon G. during voir dire — in 

front of the other prospective jurors — to elaborate on his 

questionnaire response would have forced him to explain why 

he believes that his opinion is preferable to the opinions of other 

people, such as those seated around him. Considering these and 

all relevant circumstances, we find that the prosecutor’s first

reason for striking Simeon G. is race neutral, plausible, and 

supported by the record.

Despite this, defendant contends that a comparative juror 

analysis between Simeon G. and Juror No. 1 discredits the 

prosecutor’s reason. It does not. Juror No. 1 identified herself 

as a leader, rather than a follower, and elaborated, “I like to 

make my own decisions.” Although Juror No. 1’s response was

similar in some respects to Simeon G.’s response, the prosecutor 

could reasonably have found Juror No. 1’s response to be less 

concerning in context than Simeon G.’s response. Jurors are 

expected to make their own decisions after deliberating with 

fellow jurors — which Juror No. 1 previously had done to reach 

a verdict in a separate case. The prosecutor thus could have 

concluded that Juror No. 1’s statement that she liked to make 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

55

her “own decisions” did not call into question her openness to 

considering other opinions before returning a verdict. Simeon

G.’s response, by contrast, could reasonably cause concern about 

his openness to considering other opinions, and unlike Juror No. 

1, he had not previously served on a jury or worked with a group 

of people to make a decision. (See Chism, supra, 58 Cal.4th at 

p. 1321 [where a juror, similar to two challenged prospective 

jurors, lacked supervisory work experience, the fact that the 

juror had previously served on a separate jury in a capital case 

“substantially distinguishe[d] him from [the two challenged 

prospective jurors]”]; Vines, supra, 51 Cal.4th at pp. 851, 852 

[comparative juror analysis rejected where answers were 

“dissimilar” and “significant differences in life experiences”

existed between jurors].)12 

Thus, we find some similarities as well as some differences 

between Simeon G. and Juror No. 1 in regard to the prosecutor’s 

first reason for striking Simeon G., but we ultimately conclude 

that their respective responses were not so similar as to cast 

doubt on the trial court’s acceptance of the prosecutor’s reason 

for striking Simeon G. We additionally note that Juror No. 1 did 

not raise any of the other concerns the prosecutor raised in 

explaining his reasons for the strike. Unlike Simeon G., Juror 

 

12 In his reply brief, defendant engages in an attenuated 

analysis concerning Juror No. 3 and Juror No. 4’s respective 

responses to the related question, “Have you ever worked with 

a group of people to make a decision?” But defendant’s attempt 

to parse that question from the related question concerning 

whether a prospective juror is a leader, and why, misses the 

point. Juror No. 3 and Juror No. 4 did not declare a preference 

for their opinion over other people’s opinions, making their

responses fundamentally distinguishable from Simeon G.’s 

response.
PEOPLE v. MILES

Opinion of the Court by Groban, J.

56

No. 1 expressed that she was upset with the O.J. Simpson 

verdict because she “believe[d] he was guilty,” and she did not 

suggest that she might rely on her feelings in reaching a verdict

in the guilt phase. 

As to the second reason for striking Simeon G., the 

prosecutor expressed concern that Simeon G. might rely on 

hunches or feelings, rather than evidence, in reaching a verdict 

in the guilt phase since he replaced the word “doubt” with the 

word “feeling” and said in his questionnaire that if he had a 

feeling the defendant did not do it, the defendant was not guilty. 

The record shows that when asked whether he could follow an 

instruction that a defendant is presumed innocent unless 

proven guilty beyond a reasonable doubt, Simeon G. checked 

“yes;” commented, “If I have any feeling that he might not have 

done it, hes [sic] innocent;” and in this comment, replaced the 

word “doubt” with the word “feeling.”

When asked about this response, Simeon G. did not “quite 

remember” replacing the word “doubt” with the word “feeling.” 

The dissent posits that Simeon G. “most likely” recognized a 

double negative in his original comment and replaced the word 

“doubt” with the word “feeling” in an effort to correct it. (Dis. 

opn., post, at p. 8.) This is a possible explanation. But Simeon 

G. did not provide this explanation. And had he intended to 

correct the double negative, he could have revised his comment 

in multiple ways, including, for example, by crossing out the 

word “not” or by replacing the word “doubt” with the word 

“belief.” 

But Simeon G. replaced the word “doubt” with the word 

“feeling,” and as revised, his statement read that if he had “any 

feeling” that the defendant “might” not have done it, the 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

57

defendant was innocent. The word “feeling” is ordinarily used 

to mean “[a]n idea, belief, or sense (especially a vague or 

irrational one) that a particular thing is true; an impression that

something is about to happen or is the case; an intuition about

something” or “[t]hat which a person feels in regard to 

something; attitude, esp. emotional attitude, sentiment; opinion 

or belief based on emotion or intuition and not solely on reason.” 

(Oxford English Dict. Online (3d ed. 2015)

<https://oed.com/view/Entry/68981?rskey=QkM9MC&result=2

&isAdvanced=false#eid> [as of May 22, 2020].)13 To the 

prosecutor, Simeon G.’s response that if he had “any feeling” 

that the defendant “might” not have done it, the defendant was 

innocent “made it sound like [Simeon G.] was going to be 

basically basing it on a hunch, or a feeling, which was, as the 

presenter of evidence, [the prosecutor was] powerless to 

overcome.”

The prosecutor’s concern was plausible and supported by 

the record. We acknowledge that Simeon G.’s questionnaire 

response may be interpreted in multiple ways and that his other 

questionnaire responses did not indicate that he would rely on 

his feelings in reaching a verdict in the guilt phase. However, 

the prosecutor was not obliged to accept the most innocuous 

interpretation of Simeon G.’s questionnaire response and could 

be legitimately concerned about his response for the reasons the 

prosecutor specifically articulated. (See People v. Mai (2013) 

57 Cal.4th 986, 1050, 1051 [where the prospective juror’s 

remarks “might be taken more than one way,” the prosecutor 

 

13 All Internet citations in this opinion are archived by year, 

docket number, and case name at 

<http://www.courts.ca.gov/38324.htm>. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

58

“was not obliged to accept [the defendant’s] precise 

interpretation of [the juror’s] ambiguous remarks, and [the 

prosecutor] could reasonably be concerned about [these 

remarks]”].) 

It is true, however, that Simeon G. explained his 

questionnaire response differently during voir dire. During voir 

dire, the prosecutor explained to the prospective jurors, 

including Simeon G., that “if the case has been proved by the 

prosecution beyond a reasonable doubt, your duty is to return a 

guilty verdict” and the question is if “at the conclusion of the 

case if the case has been proved beyond a reasonable doubt 

whether we can expect everybody to come back with a guilty 

verdict.” Immediately after this, the prosecutor asked Simeon 

G. about his questionnaire response. Simeon G. did not “quite 

remember” his questionnaire response, but when asked what he 

meant by it, Simeon G. explained, “Well, I think what I was 

trying to say, if I’m correct, is that if the evidence showed that 

there wasn’t — that there was some reasonable doubt, then I 

probably would not accuse him, because of the fact that, myself 

being in the same situation or anybody, I think that if the 

evidence didn’t totally prove that I did it, then there is some 

doubt. You know what I’m saying?” Simeon G. added, “So it 

wasn’t so much a feeling as it was if the evidence didn’t show.” 

Asked whether he “would base it on evidence,” Simeon G. 

responded, “Basically, yes. I’m sorry.” He added, “I couldn’t tell 

you, tell you what I said, because I don’t have the paper to look 

at what I actually meant totally.” 

Reviewing this colloquy in the appellate record, the 

dissent views Simeon G.’s responses to have “left no ambiguity

about the issue.” (Dis. opn., post, at p. 9.) To be sure, Simeon 

G. gave answers during voir dire that, from the prosecutor’s 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

59

perspective, were less concerning than Simeon G.’s 

questionnaire response and helped to explain his questionnaire 

response. However, in this colloquy, Simeon G. also said that he 

did not “quite remember” his questionnaire response, and 

because he did not have a copy of the questionnaire, he could not 

tell the prosecutor “what [he] actually meant totally” by it. 

Simeon G. referenced that if the evidence “didn’t totally prove” 

that the defendant did it, “then there is some doubt.” And when 

asked whether he “would base [the verdict] on evidence,” he 

responded, “[b]asically,” yes. These portions of Simeon G.’s 

answers may not have been entirely reassuring to the 

prosecutor, who was concerned that Simeon G. would rely “on a 

hunch, or a feeling, which was, as the presenter of evidence, [the 

prosecutor] was powerless to overcome.” Thus, reviewing this 

colloquy in the appellate record — unaided by Simeon G.’s tone 

or demeanor — we do not conclude that Simeon G.’s responses 

“left no ambiguity” and necessarily mollified any prosecutorial 

concern about his questionnaire response. (Dis. opn., post, at 

p. 9.) 

Moreover, when providing his reasons for striking Simeon 

G., the prosecutor acknowledged that Simeon G. explained his 

questionnaire response “differently in court.” Nevertheless, the 

prosecutor told the trial court that Simeon G.’s explanation 

during voir dire did not eliminate the prosecutor’s concern about 

Simeon G.’s questionnaire response. The prosecutor explained

that he was still concerned about Simeon G.’s responses “in light 

of the fact that he was, he was single-handedly hunted down to 

be here this afternoon. So [the prosecutor was] not sure that his 

responses in court should prevail over the answers he gave on 

his questionnaire.” The dissent seems to contend that the 

prosecutor was obliged to abandon his concern about Simeon 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

60

G.’s written response because Simeon G. explained that 

response differently in court under oath and “left no ambiguity 

about the issue.” (Dis. opn., post, at p. 9.) We disagree. Faced 

with seemingly different responses, the prosecutor was not 

obliged to abandon his concern about Simeon G.’s written 

response, which was signed under penalty of perjury, in light of 

Simeon G.’s oral response — and in fact, the prosecutor made 

clear to the trial court that he did not. (Cf. Vines, supra,

51 Cal.4th at p. 850 [“That [the prospective juror] stated on voir 

dire that he could consider both penalties, and thus 

demonstrated he was not subject to removal for cause [citation], 

did not preclude the prosecutor from exercising a peremptory 

challenge when [the juror’s] questionnaire responses indicated 

a degree of reluctance to impose the death penalty with which 

the prosecutor was uncomfortable”].)

The trial court was “ ‘best situated’ ” to assess Simeon G.’s 

responses in court and the prosecutor’s stated concern in light 

of those responses. (People v. Armstrong (2019) 6 Cal.5th 735, 

770 (Armstrong) [“the ‘trial court is best situated to evaluate 

both the words and the demeanor of jurors who are peremptorily 

challenged, as well as the credibility of the prosecutor who 

exercised those strikes’ ”].) Having observed Simeon G. in court, 

the trial court could assess Simeon G.’s oral responses, and it 

was better positioned than our court to determine whether 

Simeon G.’s oral responses should have completely assuaged 

any potential concerns raised by his written response. The trial 

court also could assess the credibility of the prosecutor’s stated 

concern about Simeon G.’s questionnaire response, as well as 

the prosecutor’s assessment that he was “not sure that [Simeon 

G.’s] responses in court should prevail over the answers he gave 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

61

on his questionnaire.”14 The trial court specifically asked a 

question to the prosecutor about this concern, and after listening 

to the prosecutor’s explanation and defense counsel’s comments, 

the trial court accepted the prosecutor’s stated reasons for 

striking Simeon G. (See Lenix, supra, 44 Cal.4th at p. 614 [we 

give “ ‘great deference to the trial court’s ability to distinguish 

bona fide reasons from sham excuses’ ”].) 

It is by no means clear from the record that if he had been 

selected, Simeon G. would have relied on his feelings in reaching 

a verdict in the guilt phase. But “[o]ur task is not to determine 

whether we would have shared the prosecutor’s concerns; the 

only question before us is whether substantial evidence supports 

the court’s ruling that the prosecutor described legitimate 

reasons for the challenge and that he challenged [Simeon G.] for 

those reasons, not because of [his] race.” (Smith, supra,

4 Cal.5th at p. 1161.) 

We find that the prosecutor’s concern here is plausible,

supported by the record, and race neutral. Contrary to 

defendant’s argument, his comparative juror analysis between 

Simeon G. and Juror No. 5 does not undermine the sincerity of 

the prosecutor’s concern. Asked whether she could follow a 

 

14 The dissent states that “it is not clear why” the 

circumstances surrounding Simeon G.’s attendance in court 

would have caused the prosecutor to doubt Simeon G.’s 

responses in court. (Dis. opn., post, at p. 11.) The record shows 

that Simeon G. arrived in court only after the trial judge himself 

called his employer to try to locate him. (See ante, at p. 24.) By 

any measure, having a judge call your workplace to locate you 

and have you come to court is unusual. Whether these unusual 

circumstances affected Simeon G.’s responses in court — as the 

prosecutor suggested they did — is an assessment that the trial 

court was best positioned to make. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

62

presumption-of-innocence instruction, Juror No. 5 checked “yes”

and wrote, “Try to follow instructions.” Reading this statement 

to suggest that she could not or would not follow the instruction 

is strained, and we decline to do so. The record therefore 

provides no adequate basis to overturn the trial court’s ruling. 

For the final reason, the prosecutor said that Simeon G. 

(like Kevin C.) was not upset by the O.J. Simpson verdict. As 

discussed, a prospective juror’s opinion regarding the Simpson 

case can be a nonbiased ground for a peremptory challenge. 

Defendant and LDF, however, argue that this reason was a 

proxy for race or, alternatively, pretextual. As discussed, we 

assume that LDF’s argument that more Blacks than Whites 

support the Simpson verdict is factually correct, and we consider 

this circumstance to be relevant to our inquiry as to whether the 

prosecutor’s reason was sincere and not merely pretextual. In 

this particular case, however, it is plausible that the prosecutor 

— tasked with securing a conviction in San Bernardino County 

approximately three years after the Simpson trial took place in 

the adjacent Los Angeles County — was sincerely concerned 

about the prospective jurors’ opinions regarding the Simpson 

verdict because the prosecutor considered Simpson’s case to be 

similar to defendant’s case given that both cases relied on DNA 

evidence and circumstantial evidence. Also as discussed, it 

appears that the prosecutor was not alone in considering 

Simpson’s case to be similar in some respects to defendant’s case

because both the trial court and defense counsel referred to 

Simpson’s case at various points when discussing DNA 

evidence. (See ante, at p. 50.) In addition, four of the five nonAfrican-American prospective jurors whom the prosecutor 

struck were not upset by the O.J. Simpson verdict, suggesting 

that the prosecutor’s concern was sincere and not merely a 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

63

pretext for striking African-American prospective jurors. (See 

ante, at pp. 50–51.) 

That said, we find that the credibility of the prosecutor’s 

concern here is undermined to some degree by the prosecutor’s 

failure to ask Simeon G. or other prospective jurors about the 

O.J. Simpson verdict during voir dire. In his questionnaire, 

Simeon G. indicated that he was not upset by the O.J. Simpson 

verdict but left blank the follow-up request to “[p]lease explain 

why or why not.” To be sure, we recognize that one might infer 

from this response that Simeon G. was not upset by the O.J. 

Simpson verdict because he simply agreed with the verdict, 

requiring little explanation. But we also recognize that a 

prospective juror may not be upset by the O.J. Simpson verdict 

for a variety of reasons. While the prosecutor’s failure to 

question Simeon G. or other prospective jurors about the O.J. 

Simpson verdict does not necessarily demonstrate that the 

prosecutor’s concern was pretextual, we consider this 

circumstance to be relevant to our inquiry as to whether the 

prosecutor’s concern was pretextual here. (See Smith, supra,

4 Cal.5th at p. 1152 [“an attorney’s failure to meaningfully 

examine a prospective juror about a subject about which the 

attorney claims to be concerned can constitute evidence of 

pretext”].) 

When the prosecutor gave this reason for striking Simeon 

G., the prosecutor stated, “If you’ll notice across the board, I’ve 

excused jurors I believe of Hispanic origin and Caucasian origin, 

and the common denominator, essentially, is that they were not, 

were not upset by the O.J. Simpson verdict, which was a DNA, 

circumstantial case.” Defendant argues that the prosecutor’s 

statement meant that “he had struck all prospective jurors who 

were not upset with the O.J. Simpson verdict” and “this is not 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

64

what the record shows at all” because the prosecutor did not 

strike Juror No. 6 or Alternate Juror No. 5.

15 Contrary to 

defendant’s argument, the prosecutor’s statement is fairly read

to mean that the prosecutor had struck prospective jurors 

“across” different races, including a Hispanic prospective juror 

and a Caucasian prospective juror, who were not upset by the 

O.J. Simpson verdict. And at the time of the statement, the 

prosecutor indeed had struck three non-African-American 

prospective jurors, two of whom — Malinda M. (a Hispanic 

woman) and Ronald W. (a White man) — were not upset by the 

Simpson verdict. 

Nevertheless, defendant’s comparative juror analysis 

between Simeon G. and Juror No. 6 and Alternate Juror No. 5 

has some probative value and is more convincing than it was 

with respect to Kevin C.16 As noted, Simeon G. checked “no” as 

 

15 At the time of the prosecutor’s statement, Juror No. 6 was 

seated in the jury box, but Alternate Juror No. 5 was not. 

Although defendant does not discuss this additional fact in his 

briefing, we note that at the time of the prosecutor’s statement, 

others seated in the jury box had indicated that they were not 

upset by the Simpson verdict but had provided varying 

explanations that likely assuaged the prosecutor’s concern. 

16 Although defendant does not raise these comparisons, the 

dissent additionally compares Simeon G.’s response to the 

responses by Juror No. 4, Juror No. 7, and Alternate Juror No. 

4. (Dis. opn., post, at p. 14.) Juror No. 4 was not upset by the 

O.J. Simpson verdict because “su[r]prised, based on media-given 

facts, but did not follow trial closely.” Juror No. 7 was not upset 

by the verdict “since I can only judge from T.V. I cannot give an 

honest opinion.” And Alternate Juror No. 4 was not upset by 

the verdict because “I did not hear the evidence.” While a 

prospective juror’s response that he or she was not upset by the 

O.J. Simpson verdict may suggest that the prospective juror 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

65

to whether he was upset by the Simpson verdict but did not 

explain why. His response was thus identical to Alternate Juror 

No. 5’s response and less detailed than Juror No. 6’s response, 

which noted, “evidence not clear.” We find that the credibility 

of the prosecutor’s concern regarding Simeon G.’s opinion on the 

O.J. Simpson verdict is undermined to some degree by 

defendant’s comparative juror analysis. (See Miller-El, supra, 

545 U.S. at p. 241 [“If a prosecutor’s proffered reason for striking 

a black panelist applies just as well to an otherwise-similar 

nonblack who is permitted to serve, that is evidence tending to 

prove purposeful discrimination to be considered at Batson’s 

third step”].) 

We recognize that jurors need not be identical in all 

respects for a comparison among them to be probative, and we 

continue to consider defendant’s comparisons to be relevant and 

probative on the issue of purposeful discrimination here. (See 

ante, at pp. 35–37.) However, we additionally consider as part 

of our inquiry into the prosecutor’s motivations for striking 

Simeon G. that Juror No. 6 and Alternate Juror No. 5 were 

dissimilar from Simeon G. in regard to the prosecutor’s other 

two stated reasons for striking Simeon G. (See ibid.)

Neither Juror No. 6 nor Alternate Juror No. 5 indicated 

that they might have difficulty considering the opinions of or 

deliberating with others when asked whether they considered 

themselves leaders or followers and why. Juror No. 6 considered 

herself “[b]oth” a leader and a follower “depend[ing] on what 

 

agreed with that verdict, Juror No. 4, Juror No. 7, and Alternate 

Juror No. 4 explained that they were not upset by the verdict 

because they had limited information about the case. These 

explanations likely assuaged the prosecutor’s concern. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

66

interest” she had, and she had experience working with a group 

of people to make a decision. Alternate Juror No. 5 considered 

himself a leader because “like to learn, intelligent, people tend 

to follow my lead.” While his response reflected some selfassuredness, he also said in his response that he “like[d] to 

learn,” and he had “daily” experience working with a group of 

people to make a decision and “fe[lt] that there would be no 

problem working with others.” Additionally, neither Juror No. 

6 nor Alternate Juror No. 5 indicated that they might rely on 

their feelings in reaching a verdict in the guilt phase when asked 

whether they can follow an instruction that a defendant is 

presumed innocent unless proven guilty beyond a reasonable 

doubt. By contrast, Simeon G.’s opinion on the O.J. Simpson 

verdict may have raised more concern about him as a guilt phase 

juror in this case given that he liked his opinion over other 

people’s opinions, had not previously worked with a group of

people to make a decision, and said that if he had “any feeling” 

that the defendant “might” not have done it, the defendant was 

innocent. 

Considering these and all other relevant circumstances, 

we view the issue to be close but ultimately find no adequate 

basis to overturn the trial court’s ruling under the applicable 

standard of review. We find that each of the prosecutor’s 

reasons for striking Simeon G. is plausible, supported by the 

record, and race neutral. Considering the prosecutor’s reasons 

together and reviewing the trial court’s determination regarding 

the sufficiency of those reasons with great restraint (see Lenix,

supra, 44 Cal.4th at p. 613), we conclude that substantial 

evidence supports the trial court’s conclusion that the 

prosecutor struck Simeon G. for reasons other than his race. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

67

In sum, we find substantial evidence supports the trial 

court’s denial of defendant’s Batson/Wheeler motion. Although

defendant argues that Kevin C. and Simeon G. were favorable 

prospective jurors for the prosecution, “the question is not 

whether a prosecutor should or should not have excused a 

prospective juror. It is whether this prosecutor excused [them]

for an improper reason. The record provides no sufficient reason 

to so conclude or for this court to overturn the trial court’s 

ruling” here. (Hardy, supra, 5 Cal.5th at p. 84.) Moreover, the 

prosecutor’s acceptance of an alternate juror who was 

African-American further supports the prosecutor’s good faith

in exercising the peremptory strikes. (See, e.g., Jones, supra, 

51 Cal.4th at pp. 362–363.) 

B. Excusal of Two Prospective Jurors for Cause 

Defendant contends the trial court erroneously excused 

two prospective jurors based on their views about the death 

penalty. We disagree. 

“Under Wainwright v. Witt (1985) 469 U.S. 412, 424

[83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), we consider whether the 

record fairly supports the trial court’s determination that [a 

prospective juror’s] views on the death penalty would have 

prevented or substantially impaired her performance as a 

juror.” (People v. Thomas (2011) 52 Cal.4th 336, 357.) 

“ ‘ “Generally, a trial court’s rulings on motions to exclude for 

cause are afforded deference on appeal, for ‘appellate courts 

recognize that a trial judge who observes and speaks with a 

prospective juror and hears that person’s responses (noting, 

among other things, the person’s tone of voice, apparent level of 

confidence, and demeanor), gleans valuable information that 

simply does not appear on the record.’ ” ’ ” (Id. at p. 358.) 
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Opinion of the Court by Groban, J.

68

“ ‘When the prospective juror’s answers on voir dire are 

conflicting or equivocal, the trial court’s findings as to the 

prospective juror’s state of mind are binding on appellate courts 

if supported by substantial evidence.’ ” (People v. Wall (2017) 

3 Cal.5th 1048, 1062 (Wall).) 

As a preliminary matter, defendant contends that 

deferring to the trial court’s findings on jury selection issues is 

improper for two reasons. First, he argues that such deference 

is inappropriate on direct appeal in light of the high court’s 

holding in Greene v. Georgia (1996) 519 U.S. 145, 146–147. But 

Greene held that the Supreme Court of Georgia was mistaken 

when it believed itself bound by Witt’s standard of review: It 

was “free to adopt the rule laid down in Witt for review of trial 

court findings in jury-selection cases, but it need not do so.” 

(Greene, at p. 147.) In contrast, we have previously adopted 

Witt’s standard of review and accordingly rejected this 

argument because “[t]he law in California . . . is settled on the

point.” (People v. Farnam (2002) 28 Cal.4th 107, 132, fn. 6.) 

Second, defendant argues that deferring to the trial court’s 

resolution of inconsistencies or ambiguities is contrary to the 

high court’s holdings in Adams v. Texas (1980) 448 U.S. 38

(Adams) and Gray v. Mississippi (1987) 481 U.S. 648 (Gray). We 

have rejected the contention that Adams and Gray “ ‘made clear 

that when a prospective capital case juror gives equivocal 

responses, the state has not carried its burden of proving that 

the juror’s views would “prevent or substantially impair the 

performance of his duties as a juror.” ’ ” (People v. Schmeck

(2005) 37 Cal.4th 240, 263 (Schmeck).) We also have rejected 

the contention that Gray “suggests the high court intended to 

cast aside its view that ‘deference must be paid to the trial judge 

who sees and hears the juror.’ ” (People v. Moon (2005) 
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Opinion of the Court by Groban, J.

69

37 Cal.4th 1, 15 (Moon).) “ ‘Furthermore, the high court has 

more recently reiterated its view that “[c]ourts reviewing claims 

of Witherspoon-Witt error . . . owe deference to the trial court, 

which is in a superior position to determine the demeanor and 

qualifications of a potential juror.” ’ ” (People v. Bryant, Smith 

and Wheeler (2014) 60 Cal.4th 335, 400.) These arguments 

therefore are meritless. 

1. Prospective Juror No. 44 

Prospective Juror No. 44’s (Number 44) responses to the 

approximately 31-page jury questionnaire signaled a degree of

uncertainty and discomfort regarding the death penalty. She 

said, “I don’t feel one way or another” on whether the death 

penalty is fair or unfair, and “I don’t have an opinion” on 

whether the death penalty is used too often or too seldom. Asked

whether the sentence of death or life imprisonment without the 

possibility of parole was more severe, she responded, “Depends

— for me Life w/o parole — for others — I don’t know.” But she 

also said that she did not like the death penalty, that it made 

her “uncomfortable,” and that she would vote to abolish it. She 

identified herself as belonging to Group 4, which was defined as 

“I have doubts about the death penalty, but I would not vote 

against it in every case.” 

She said that her feelings about the death penalty were 

not such that she “would refuse to find the defendant guilty of 

first degree murder and/or would refuse to find the special 

circumstance true, solely to avoid having to make a decision on 

the death penalty,” and that she was “willing to weigh and 

consider all the aggravating and mitigating factors that will be 

presented to [her] before deciding the penalty in this case.”

However, she indicated that she would be reluctant to vote for a 
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Opinion of the Court by Groban, J.

70

death sentence, to sign the verdict form for a death sentence, or 

to state that verdict in court before the defendant, commenting, 

“The day I am not reluctant to look a person in the face and 

sentence them to death will be the day I no longer belong to the 

human — or should I say humane — race.” As to whether her 

feelings about the death penalty were such that she “would 

never be able to personally vote for the death of the defendant 

under any circumstances” and “would always vote for a sentence 

of life without [the] possibility of parole,” she declined to check 

either the yes or no box. Instead, she commented, “I don’t know 

— I’ve done a few things I thought I would never do.” 

During Hovey questioning, the prosecutor asked whether

her identification as belonging to Group 4 (that she has doubts 

about the death penalty but would not vote against it in every 

case) was accurate “about the way [she] feel[s] on the death 

penalty.” She responded, “You know, it’s really hard to say 

exactly what you would do when you’re not in the situation. I 

would have — I would never know exactly what I would do until 

I’m put in that situation. So, yeah, I would have doubts.” The 

prosecutor then explained that in the penalty phase, the court 

will provide an instruction listing mitigating and aggravating 

factors to consider and “essentially if you find the aggravating 

factors outweigh the mitigating factors, then death is the 

appropriate verdict, if you find that.” The prosecutor asked, “Do 

you think that — can you say for sure, I guess is my question, 

that if placed in that position with the aggravating factors 

weighing more heavily, could you personally make the vote?” 

She responded, “I know, I know what you’re looking for, and I’m 

sorry. I can’t help you with it, because I don’t know, because 

there have been too many — I’m 39, and there have been too 

many times that I’ve said I’d never do this, or I’d always do that, 
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Opinion of the Court by Groban, J.

71

and then I’ve done the other. So, I just cannot tell you, unless 

I’m placed in that situation, unless I’ve gone through it. . . . I 

just don’t make judgments until I’m in that situation. I just 

don’t.” Seeking to clarify her answer, the prosecutor asked if she 

found the aggravating factors weigh heavier than the mitigating 

factors, “you can’t guarantee me that you could step up to the 

plate, so to speak, and make a vote for death?” She repeated, “I 

can’t guarantee anything. I don’t deal in hypotheticals, and I 

just — no, I cannot guarantee you what I would do until I am in 

that situation, no.”

Defense counsel subsequently explained, “[T]he Court at 

the end always gives instructions to jurors about what the law 

is, and how they’re supposed to carry out their duties. . . . And 

in a death penalty case, there are certain things that the law 

allows jurors to consider in deciding whether to select death or 

life, assuming you were in that position. They’re called 

aggravating factors, mitigating factors.” Defense counsel then 

asked, “if you’re selected and sworn as a juror, could you commit 

yourself under oath to follow what the Judge told you the law 

was? Or do you think there’s something else that might 

interfere with your ability to do that?” She responded, “I don’t 

think there’s anything that would interfere with my ability. And 

I can’t tell you, and I don’t know if I could follow the law. There’s

— I’m — there’s just a good chance that I would or I wouldn’t. 

You’re going to have to pick me and have me sit here and see, 

because I just don’t know.” 

At the close of this questioning, the prosecutor challenged 

her for cause. The trial court initially stated, “She technically 

comes within the Wainwright [v.] Witt standard. She’s not 

saying her views are such that it would substantially interfere 

with her ability to follow the instructions and her duty, she just 
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Opinion of the Court by Groban, J.

72

says she doesn’t know, because it’s such an emotional issue.”

Citing two cases, the prosecutor argued that jurors who insist 

they do not know or cannot say if they could impose a death

sentence are properly excused. Defense counsel responded that 

Number 44 did not say that she could not or would never impose 

a death sentence; “[s]he just felt that she didn’t know under 

what circumstances.” The trial court commented, “She was 

probably an extremely honest juror who really couldn’t give us 

a definite answer,” and took the challenge under submission. 

Later, after reviewing the record and the authority cited 

by the prosecutor, the trial court found, “[M]y memory is 

refreshed that her answers basically were that she could not say 

whether she would be able to impose the death penalty, and it 

was not just that she didn’t know whether in this case she could 

impose the death penalty, because obviously she wouldn’t know 

until she got — she heard the evidence and the law. But in any 

situation, basically, she didn’t know until she was put in that 

situation whether she could do it, or whether she could follow 

the Court’s instructions in this area. . . . I would agree with [the 

prosecutor] that that’s sufficiently equivocal. Her ‘I don’t know’ 

responses are sufficiently equivocal to warrant a challenge for 

cause, so I will order that she be excused.”

The trial court did not err in excusing Number 44. 

Number 44 said in her questionnaire and during Hovey

questioning that she did not know whether she could vote for a 

death sentence. Certainly, a juror’s decision as to whether to 

vote for a death sentence can be weighty and difficult. “[E]ven 

a juror who ‘might find it very difficult to vote to impose the 

death penalty’ is not necessarily substantially impaired unless 

he or she was unwilling or unable to follow the court’s 

instructions in determining the appropriate penalty.” (People v. 
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Opinion of the Court by Groban, J.

73

Merriman (2014) 60 Cal.4th 1, 53 (Merriman).) Number 44, 

however, did not merely express uncertainty as to “her own 

views on the death penalty or the appropriateness of the death 

penalty in any particular case, but as to her ability to impose a 

death sentence.” (Wall, supra, 3 Cal.5th at p. 1063.) When 

asked in her questionnaire whether her feelings about the death 

penalty were such that she would never be able to vote for a 

death sentence, she wrote, “I don’t know — I’ve done a few 

things I thought I would never do.” She repeated during Hovey 

questioning that she did not know whether she could vote for a 

death sentence. (See Wall, supra, 3 Cal.5th at p. 1062 

[upholding the excusal of a prospective juror who “expressed 

hesitation about her ability to impose a death verdict” and “[i]n 

response to repeated questions by the trial court and the 

prosecutor as to whether she had the ability to impose the death 

penalty . . . said she did not know if she did”].) 

Number 44 further expressed uncertainty as to her ability 

to follow the trial court’s instructions regarding the 

consideration of aggravating and mitigating factors in deciding 

whether to impose a death sentence. Although she said in her 

questionnaire that she was willing to weigh and consider all the 

aggravating and mitigating factors before deciding the penalty 

in this case, she then responded to a similar question during 

Hovey questioning by saying, “I don’t know if I could follow the 

law. There’s — I’m — there’s just a good chance that I would or 

I wouldn’t. You’re going to have to pick me and have me sit here 

and see, because I just don’t know.” “Given the juror’s own 

recognition that [she] did not know whether [she] could follow 

the law or ever vote for the death sentence, the trial court did 

not commit Witherspoon/Witt error when it found the juror was 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

74

substantially impaired.” (People v. Spencer (2018) 

5 Cal.5th 642, 659.) 

Nevertheless, defendant compares Number 44 to Juror 

White in the high court’s Adams opinion and argues that 

Number 44’s responses were insufficient to justify her excusal. 

“But using Adams as a reference point for evaluating the excusal 

of [Number 44] is inapt because Adams concerned the particular 

statutory scheme in Texas, whereby ‘ “[p]rospective jurors shall

be informed that a sentence of life imprisonment or death is 

mandatory on conviction of a capital felony. A prospective juror 

shall be disqualified from serving as a juror unless he states 

under oath that the mandatory penalty of death or 

imprisonment for life will not affect his deliberations on any 

issue of fact.” ’ [Citation.] As the Adams court explained, the 

statutory scheme is inconsistent with the standard demanded 

by the federal Constitution because ‘neither nervousness, 

emotional involvement, nor inability to deny or confirm any 

effect whatsoever is equivalent to an unwillingness or an 

inability on the part of the jurors to follow the court’s 

instructions and obey their oaths, regardless of their feelings 

about the death penalty.’ ” (People v. Thompson (2016) 

1 Cal.5th 1043, 1068.) Moreover, unlike Juror White and others

who were improperly excluded under this statutory scheme 

“only because they were unable positively to state whether or 

not their deliberations would in any way be ‘affected’ ” (Adams,

supra, 448 U.S. at p. 50; id. at p. 50, fn. 8), Number 44 was not 

merely “unable positively to state whether or not [her] 

deliberations would in any way be ‘affected,’ ” (id. at p. 50) but 

rather, she did not know whether she would be able to follow the 

court’s instructions in a death penalty case or vote for a death 

sentence. 
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Opinion of the Court by Groban, J.

75

Defendant additionally compares Number 44 to Juror 

Bounds in the high court’s Gray opinion. “Although the voir dire

of member Bounds was somewhat confused, she ultimately 

stated that she could consider the death penalty in an 

appropriate case and the judge concluded that Bounds was 

capable of voting to impose it.” (Gray, supra, 481 U.S. at p. 653.) 

After further discussion, the judge, however, excused Bounds for 

cause. (Id. at p. 655.) The state court agreed that Bounds was 

“ ‘clearly qualified to be seated as a juror’ ” but concluded that 

excusing Bounds was harmless error. (Id. at p. 657.) The issue 

subsequently addressed by the high court “was not the standard 

for excusing a juror for cause, but whether the erroneous excusal 

of a juror for cause was subject to a harmless error test.” (Moon,

supra, 37 Cal.4th at p. 14.) We find the comparison between 

Juror Bounds and Number 44 to be inapposite. Unlike Juror 

Bounds, Number 44 did not confirm “that she could consider the 

death penalty in an appropriate case,” and the trial court did not 

conclude that she “was capable of voting to impose it;” rather, 

the trial court found that Number 44 “could not say whether she 

would be able to impose the death penalty.”17 

In short, we decline to find error in the trial court’s 

decision to excuse Number 44 for cause. 

2. Prospective Juror No. 63 

Prospective Juror No. 63 (Number 63) did not reveal much 

hesitation regarding the death penalty in his questionnaire 

 

17 Defendant repeats these comparisons in arguing that 

Prospective Juror No. 63’s responses were insufficient to justify 

his excusal. Those comparisons fare no better. 
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Opinion of the Court by Groban, J.

76

responses, but he neglected to answer several questions on the 

topic.

18 He said that he did not have any moral, philosophical, 

or religious objection to the death penalty and that he believed

the death penalty was fair, noting in part, “If you kill you be 

killed.” He said that his feelings about the death penalty were 

not “such that [he] would refuse to find the defendant guilty of 

first degree murder and/or would refuse to find the special 

circumstance true, solely to avoid having to make a decision on 

the death penalty;” that his feelings about the death penalty 

were not “such that [he] would never be able to personally vote 

for the death of the defendant under any circumstances” and 

“would always vote for a sentence of life without [the] possibility 

of parole;” and that he would not be reluctant to sign the verdict 

form for a death sentence or state that verdict in court. 

Inexplicably, however, he failed to respond to several other 

questions, including, among others, what his general feelings 

were about the death penalty, what he believed to be the 

purpose of the death penalty, whether the death penalty was 

used too often or too seldom, and whether he would vote to keep 

or abolish the death penalty. Nor did he identify which one of 

five defined groups most accurately described his opinion 

regarding the death penalty. 

Separately, and without explanation, he checked “no”

when asked whether he thought he could be a fair and impartial 

juror in this case and when asked whether he was “willing to 

 

18 Regarding the questionnaire’s introductory paragraphs 

about the death penalty, he checked “no” when asked to 

acknowledge that he read and understood those paragraphs. It 

is not apparent from the record whether he indeed failed to read 

or understand those paragraphs or simply checked “no” due to 

inadvertence. 
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Opinion of the Court by Groban, J.

77

weigh and consider all the aggravating and mitigating factors 

that will be presented to [him] before deciding the penalty in 

this case.”

During Hovey questioning, Number 63 said that he did not 

have strong feelings about the death penalty, but that he would 

not feel comfortable voting for a death sentence and that he 

would be reluctant to do so. The prosecutor asked, “Do you think

your feelings about that might affect the way you judge the guilt

or innocence of the defendant?” He said, “It might.” The 

prosecutor then asked, “Do you think that your feelings might 

also affect the way you look at the Court’s instructions about the 

death penalty?” He again said, “It might.” He also confirmed 

that sitting on this type of case might be difficult for him based 

on his feelings. 

The defense subsequently asked, “[D]o your feelings about 

the death penalty, are they based on a religious or ethical thing, 

or is it just your own personal feelings about it?” Number 63 

responded, “You could say both.” The defense then asked, “If 

you were to be asked to judge which penalty to impose, and the 

Court gave you what the rules are, here’s how you decide. You 

look at all the aggravating factors, and they are 1, 2, 3, 4, 5. You 

look at all the mitigating factors, 5, 6, 7, 8, 9. Whatever they 

are. You decide whether the aggravating factors weigh more 

than the mitigating factors. If they do, then you vote for death. 

If they don’t, you vote for life without possibility of parole. 

[¶] Would you be able to follow that instruction?” Number 63 

responded, “I don’t know.” The defense asked, “What gives you 

— what is your concern about following that instruction?” 

Number 63 responded, “The way I feel.” To clarify, the defense

asked, “Which is that you wouldn’t want to vote for death?” 

Number 63 responded, “Nope.” Again seeking to clarify, the 
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Opinion of the Court by Groban, J.

78

defense asked, “No, you wouldn’t want to vote for death?” 

Number 63 responded, “I don’t think so. I’m saying, no, I’m not, 

but I don’t think so.” 

The prosecutor challenged Number 63 for cause “based on 

his answers,” and the defense said, “Submit it.” The trial court 

excused Number 63 for cause.

“Jurors are not required to like the law, but they are 

required to follow it.” (Armstrong, supra, 6 Cal.5th at p. 750.) 

“[S]o long as prospective jurors can obey the court’s instructions 

and determine whether death is appropriate based on a sincere 

consideration of aggravating and mitigating circumstances, 

they are not ineligible to serve.” (Ibid.) “A jury candidate who 

will not, or cannot, follow a statutory framework, is not qualified 

to serve.” (Ibid.) 

Here, Number 63 said in his questionnaire that he did not 

have any moral, philosophical, or religious objection to the death 

penalty, his feelings were not such that he “would never be able 

to personally vote for the death of the defendant under any 

circumstances,” and he would not be reluctant to sign the verdict 

form for a death sentence or state that verdict in court. But he 

said during Hovey questioning that his feelings about the death 

penalty were based both on “a religious or ethical thing . . . and 

[his] own personal feelings,” he “[didn’t] think” he wanted to vote 

for a death sentence, and he would be reluctant and not feel 

comfortable doing so. 

As with Number 44, a generalized recognition that it 

would be difficult to impose a death sentence does not mean that 

a juror is necessarily substantially impaired. (See Merriman,

supra, 60 Cal.4th at p. 53.) But Number 63 said more. He 

indicated in his questionnaire that he was not “willing to weigh 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

79

and consider all the aggravating and mitigating factors that will 

be presented to [him] before deciding the penalty in this case.” 

And when asked during Hovey questioning whether he would be 

able to follow the court’s instruction regarding considering and 

weighing the aggravating and mitigating factors, he said that 

he “[didn’t] know” due to “[t]he way [he] feel[s].”19 

“ ‘[A prospective] juror’s inability to set aside his or her 

personal views and follow the law, need not be demonstrated 

with unmistakable clarity.’ ” (People v. Jones, supra, 3 Cal.5th 

at p. 615.) Here, Number 63’s written and oral responses could 

have left the trial court with “the definite impression that [he] 

would be unable to faithfully and impartially apply the law.” 

(Wainwright v. Witt, supra, 469 U.S. at p. 426.) That defense 

counsel merely submitted the question to the trial court20

further “suggest[s] counsel concurred in the assessment that the 

juror was excusable.” (People v. Cleveland, supra, 32 Cal.4th at 

p. 735; cf. Witt, supra, 469 U.S. at p. 435 [where counsel did not 

question the juror or object to the trial court’s excusing her for 

cause, “it seems that at the time [the juror] was excused no one 

 

19 Defendant notes that Number 63 was not directly “asked 

if he would be willing to set aside whatever personal views he 

had and follow the law given to him by the court.” “We agree 

that the better practice is to ask such a question. But the focus 

of our review is whether there is substantial evidence to support 

a conclusion that the juror would not be able to set aside his or 

her personal feelings and follow the trial court’s instructions 

concerning the imposition of the death penalty.” (People v. Jones

(2017) 3 Cal.5th 583, 616.) 

20 We have since held that similar statements do not suffice 

to preserve this objection on appeal. (People v. McKinnon (2011) 

52 Cal.4th 610, 643.) But this rule does not apply retroactively 

here. (People v. Cleveland (2004) 32 Cal.4th 704, 734–735.) 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

80

in the courtroom questioned the fact that her beliefs prevented 

her from sitting. The reasons for this, although not crystal clear 

from the printed record, may well have been readily apparent to 

those viewing [the juror] as she answered the questions”].) After 

giving appropriate deference to the trial court’s determination 

regarding Number 63’s state of mind, we find substantial 

evidence supports the trial court’s ruling and conclude that the 

court did not err in excusing Number 63. 

C. Standard for Excusing Prospective Jurors for 

Cause

Defendant challenges the standard for excusing 

prospective jurors based on their views of the death penalty. 

“ ‘Under the applicable state and federal constitutional 

provisions, prospective jurors may be excused for cause if their 

views would prevent or substantially impair the performance of 

their duties.’ ” (People v. Gonzalez (2012) 54 Cal.4th 1234, 

1284–1285.) We recently declined an invitation to revisit this 

standard and do so again here. (See People v. Rices (2017) 

4 Cal.5th 49, 79–80 (Rices).)

III. GUILT PHASE ISSUES

A. Denial of Defendant’s Motion to Suppress

Pursuant to a search warrant, the police collected, among 

other items, a sample of defendant’s blood and the note from his 

truck. Before trial, defendant moved to suppress this evidence. 

The trial court denied his motion. Defendant contends the court 

erred because the search warrant affidavit contained 

misrepresentations and omissions that were intentionally false 

or made in reckless disregard for the truth. The trial court did 

not err. 
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Opinion of the Court by Groban, J.

81

1. Background 

On June 16, 1992, the police received a report that a “black 

male wearing a white T-shirt armed with a small handgun” had 

just committed a robbery and rape at a nearby office building in 

Torrance. (See ante, pt. I.B.1.a.v.) Within minutes of the report, 

and in the general vicinity from which the suspect may have 

attempted to flee, two officers spotted defendant in his truck, 

appearing very nervous and matching the suspect’s general 

description. The officers unsuccessfully attempted to stop 

defendant, a chase ensued, and the officers shot and arrested 

him. Once Detective Lore learned about the arrest, he sought a 

warrant to search defendant, his residences, and his vehicle. 

a. Detective Lore’s affidavit in support of the

search warrant

Detective Lore’s 11-page affidavit, dated June 18, 1992,

began by describing Willem’s death in Rialto and its apparent 

connection to other, similar rapes and robberies committed 

throughout San Bernardino and Riverside Counties. He

described two such similar incidents: the Christine C. incident 

in Victorville and the Osburn and Carole D. incident in San 

Bernardino. In both incidents, the suspect bound the victims 

with telephone receiver cords. In the Christine C. incident, “a 

suspect was described as a tall Black male adult, late 20’s to 

early 30’s, armed with a small caliber handgun,” and in the 

Osburn and Carole D. incident, the description of the suspect 

“matched the description of the suspect in the Victorville crime.” 

Forensic specialist David Stockwell performed a chemical 

analysis for the three incidents and concluded that “the same

suspect that committed the homicide/rape in the Rialto [sic], 

committed the rape in Victorville, [and] was also responsible for 

the robbery/rape in the City of San Bernardino.” Based on 
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Opinion of the Court by Groban, J.

82

Stockwell’s analysis, “the subject that was sought after in these 

series of crimes, is believed to be a Black male that is an ABO 

type, AB secretor.” 

Detective Lore next summarized a series of similar 

robberies. “The robberies included professional business suites 

in the late evening hours on Mondays, Tuesdays and 

Wednesdays, very similar to that of the time of the rapes 

mentioned previously. The robberies also included a male Black 

that matched the physical description of the one that was 

described in two of the rape incidents. The subject was armed 

with a small caliber semi-automatic handgun at the time of 

these robberies. During some of the robberies, the victims were 

bound with telephone receiver cords. During the follow-up 

interviews with the victims in these cases, it was revealed that 

in most of the cases the suspect had made some specific 

comments. The most prevalent being, ‘Don’t look at me.’ ” 

Elaborating with respect to a related robbery, Detective 

Lore said that Arnold and Sharyn Andersen were working at

their business when they were “confronted by a tall Black male 

adult, armed with a small caliber handgun.” “The suspect made 

both victims lie on the floor. The subject robbed the victims of 

approximately $1,600.00 in cash and fled out the same door 

where he had forced entry.” Detective Lore continued, “The 

investigation by San Bernardino Police Department revealed 

that the suspect smashed out a small window over the locking 

area of the door, which led into the rear portion of the business 

suite. When doing this, the suspect cut himself on the glass and 

had grabbed a box of Kleenex that was sitting on a counter near 

the back door to stop some of the bleeding. The Kleenex box was 

collected and linked to the suspect.” 
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Opinion of the Court by Groban, J.

83

Detective Lore then noted that four robberies in Riverside

“had similar suspect descriptions.” The San Bernardino County 

Sheriff’s Department also created a sketch of the suspect, which

“seemed to be the consensus of most of the victims that saw the 

suspect during the robberies.” 

Next, Detective Lore explained that in June 1992, he

learned that the Torrance Police Department had arrested 

defendant for committing a robbery and rape, during which “the 

suspect tied both victims with telephone receiver cords, had a 

chrome handgun, spoke very softly in a calm voice, and had 

made vaginal penetration with his finger and penis from behind. 

The suspect also said to the victims, ‘Where is the money’ and 

‘Don’t look at me.’ ” According to Detective Lore, “All of the 

above M.O. traits are consistent with the crimes in the Inland 

Empire from January through March of 1992.” 

Detective Lore then proceeded to describe defendant. 

According to the Torrance Police Department, he has AB 

positive blood, which “is the same type of blood that the suspect 

in the Rialto homicide and the two other rapes in Victorville and 

San Bernardino [has].” He “is further described as being very 

clean with virtually no body fat. The physical description 

provided by his California Driver’s License is 6’6”, 210#, Black 

hair and brown eyes.” “Mr. Miles criminal history from the 

State of California [citation] describes him also as being a Black 

male, 6’5”, 200#.” In addition, Detective Lore listed his

residences, noting that he listed with the DMV an address in 

Compton as of March 23, 1992 and that the “crime spree stopped 

in the Inland Empire on 3/8/92, before the suspect moved to 

Compton, CA.” Detective Lore concluded, “[b]ased on my 

experience as being a policeman for approximately 20 years, Mr. 
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Opinion of the Court by Groban, J.

84

Miles displays the physical characteristics as described by the 

majority of the victims in these cases.” 

Detective Lore added, “A photographic line-up with the 

suspect’s photograph in position #2 was tentatively I.D.’d by 

victim Heynen, one of the victim’s [sic] in the Upland robbery 

which occurred on 1/21/92. The victim pointed to position #2 

(suspect Miles) and said, ‘It could be him.’ ” 

Near the end of the affidavit, Detective Lore summarized, 

“With the exception of the homicide, the suspect in each crime 

is described as articulate and soft spoken. Witnesses to the 

robberies described the suspect as being Black male adult, 25-35 

years, 6’-6’4”, thin build, large dark eyes, dark hair, wearing a 

dark blue or black watch cap, dark blue or black Levi type pants, 

an[d] at times was described as having a thin moustache. 

Information derived from his driver’s license history, criminal 

history and booking information reveals his physical description 

of 6’6”, 210#, black hair and brown eyes.” Detective Lore 

believed evidence from these crimes would be located during 

searches of defendant, his residences, and his vehicle and listed 

the items sought and described the places and person to be 

searched. Judge Gunn issued the warrant. 

On appeal, defendant contends that the affidavit 

contained misrepresentations and omissions regarding the 

Kleenex box, Heynen’s identification, and the suspect 

descriptions. Before trial, Detective Lore testified regarding his 

affidavit, the search warrant, and the searches conducted 

pursuant to the warrant. As to the three purported 

misrepresentations or omissions challenged on appeal, he 

testified as follows. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

85

First, Detective Lore testified twice about the Kleenex box 

statement. Initially, the defense elicited the following 

testimony: “Q. Then you state the Kleenex box was linked to the 

suspect; is that correct? A. Yes, sir. Q. In what way was the 

Kleenex box linked to Mr. Miles? A. It was sent to the San 

Bernardino Crime Lab, but unfortunately the box had been 

wiped off, and there was nothing of use taken from the box. 

Q. The purpose of that statement was to assert to the 

Magistrate, again as a basis for probable cause, that somehow 

or another there was a scientific link that had been made 

between the substance on that box and Mr. Miles; is that 

correct? A. Yes, sir. Q. And that wasn’t true, was it? A. No, sir.” 

The prosecutor subsequently recalled Detective Lore to 

testify about this statement again. At this time, the prosecutor 

asked whether there were some things in his affidavit “which 

ultimately were found not to be correct” including “a Kleenex 

box alleged to have been analyzed and linked to the defendant 

through scientific evidence.” Detective Lore replied, “Yes.” 

Asked whether he was aware that this statement was not true 

at the time of his affidavit, Detective Lore replied, “No.” Asked 

whether he intentionally made this statement with the intent to 

deceive the magistrate judge, Detective Lore again replied, “No.” 

Asked to explain why he included this statement, he testified, 

“It was my belief at the time that [the] San Bernardino Police 

Department had collected the Kleenex box, along with the blood 

stained Kleenexes, that were placed into evidence and they were 

going to be shipped to the Crime Lab.” He was not sure whether 

at the time of the affidavit, he anticipated that the items “were 

going to go [to the lab], or that they were already there.” He

acknowledged, though, that at the time of the affidavit, he did 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

86

not have information that the box had been analyzed or that any 

comparison had been made. 

Second, Detective Lore testified that Heynen had

identified another individual during an earlier photographic 

lineup, but he did not include this information in his affidavit. 

He said that he orally informed the magistrate judge that he had 

sought and obtained search warrants with regard to other 

suspects in this case and that the warrant sought here was 

“either the fourth or fifth search warrant” sought in this case. 

Third, Detective Lore testified that the suspect 

descriptions in his affidavit were based on the ATM photographs 

captured after Willem’s death, police reports, and victim 

interviews. Regarding the ATM photographs, he explained that 

he had visited the same ATM camera, and by comparing himself 

to the photographed suspect, he had estimated that the suspect 

was approximately six feet, five inches tall or six feet, six inches 

tall. As to the police reports, the defense pressed Detective Lore, 

asking him to confirm the height and weight descriptions 

reported by the victims.21 When the defense asked whether any 

 

21 During this line of questioning, Detective Lore confirmed 

the following: the Christine C. police report described the 

suspect as “Male — or black male. 25 to 27. 6 feet 1. 150 

[pounds]”; the Osburn and Carole D. police report described the 

suspect as “6 feet. 150 to 160 pounds. I believe it’s brown hair. 

Brown eyes. And skin was medium”; the Yenerall police report 

described the suspect as “Male black. 30’s. 6 feet. Weight was 

medium”; the Heynen police report described the suspect as 

“Black male. Brown eyes. Height was 6 feet 1. Weight was 180 

pounds”; the Kendrick and Crawfords police report described 

the suspect as “25 years. Black male. Hair was black. Eyes 

were black. Height was 6’4”. Weight was 160”; and the 

Andersens police report described the suspect as “male black. 

20’s. 6 feet. 170 [pounds].” 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

87

of the victims described the suspect as six feet, six inches tall, 

Detective Lore testified that when he interviewed Arnold, he

“said around 6’6”,” explaining that “[Arnold] was 6’4”, and that 

he actually had to look up to the suspect.” 

Asked by the defense whether he meant to imply “that 

basically all of these people had similar descriptions” by stating 

that the robberies “included a male black that matched the 

physical description” of the Christine C. and Osburn and Carole 

D. suspect, Detective Lore replied affirmatively. The defense 

then asked whether, in his opinion, someone who is six feet, 150 

pounds “matches” defendant’s height and weight. Detective 

Lore replied, “After 25 years of law enforcement, you begin to 

realize that people are not very good with heights and weights.” 

When the prosecutor subsequently questioned Detective Lore, 

he confirmed that by the word “matched,” he did not mean to 

suggest that each victim’s suspect description exactly mirrored

defendant’s height and weight. Rather, he meant that “[t]he 

descriptions given by the different witnesses and victims in this 

case, [were] within a couple of pounds or a couple of inches. And 

when I say a couple of pounds, 10, 20, 30.” He also confirmed 

that he included defendant’s height and weight in the affidavit

to make the magistrate aware that discrepancies existed.

b. Trial court’s ruling 

The trial court evaluated defendant’s contentions with 

respect to each of the three purported misrepresentations or 

omissions challenged on appeal.

First, regarding the Kleenex box statement, the trial court 

reasoned that it could be interpreted in one of two ways. The 

first possible interpretation was that the “blood on the box had 

been scientifically matched to the suspect’s blood. In this case, 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

88

Mr. Miles.” By this interpretation, the statement would be false 

because no testing had in fact been done. “Had the affiant 

known this at the time that he prepared the affidavit, there 

would be no question that he made a knowingly and 

intentionally false statement; and at the very least, he made a 

statement with a reckless disregard for the truth since he had 

no information that was the case.” The second possible

interpretation was “that the box being linked to the suspect 

merely meant that the authorities collected the evidence, [and] 

believed the blood on the box was that of the suspect when he

forced entry into the building.” Or put differently, the affiant at 

the time that he prepared the affidavit “believed there was a 

Kleenex box with blood on it, possibly the suspect’s blood; and 

that box was taken into evidence to be analyzed. He did not 

mean to suggest that the analysis had been done and that the 

blood on the box was that of Mr. Miles.” 

The trial court found that this second interpretation was 

consistent with the surrounding facts in the affidavit and was 

consistent with Detective Lore’s testimony, in which he 

explained that he had later learned the Kleenex box could not 

be analyzed because it had been wiped off. The trial court 

concluded, “[b]ased on the Court’s reading of the affidavit, and 

having heard the affiant testify on both occasions as to his 

intentions in including that information, the Court cannot say 

that he knowingly and deliberately included false information 

for the purpose of deceiving the Magistrate, nor can the Court 

find a reckless disregard for the truth on [the] affiant’s part. At 

most, the Court would find a negligent mistake in drafting the 

affidavit in such a way that a Magistrate could mistakenly 

assume there was a scientific link, or failing to include the 

information that the box was to be analyzed later.” 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

89

Further, the trial court found that even if the Kleenex box 

statement were omitted from the affidavit, the affidavit would 

nevertheless establish probable cause. “The affidavit contained 

substantial information that the same person likely committed 

the Willem, [Christine C.], [Carole D.]/Osburn crimes, including 

serological evidence. There was also information presented that 

Miles has the same blood type as that found at the Willem crime 

scene. And finally, there was information that Miles was 

arrested as a suspect in a similar robbery/rape in Torrance.” 

Second, as to the purported omission of Heynen’s earlier 

identification, the trial court found, “The identification by Miss 

Heynen is, at the very least, equivocal and falls short of a 

positive identification. I can assume that the Magistrate came 

to the same conclusion, and that the additional information 

would not have led to a different result or have added anything 

of substance to the affidavit.”

Third, regarding the suspect descriptions, the trial court 

“[did] not find this information to be misleading or false, and 

[did] not find that defendant ha[d] met his initial burden of 

showing a knowing or intentionally false statement, or reckless 

disregard for the truth.” 

Finally, the trial court found that “the affiant and the 

executing officers had an objective good faith reliance on the 

warrant, and the good faith exception to the exclusionary rule 

would apply in this case.” 

2. Discussion 

“ ‘In reviewing a search conducted pursuant to a warrant, 

an appellate court inquires “whether the magistrate had a 

substantial basis for concluding a fair probability existed that a 

search would uncover wrongdoing.” [Citation.] “The task of the 
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Opinion of the Court by Groban, J.

90

issuing magistrate is simply to make a practical, common-sense 

decision whether, given all the circumstances set forth in the 

affidavit before him [or her], including the ‘veracity’ and ‘basis 

of knowledge’ of persons supplying hearsay information, there 

is a fair probability that contraband or evidence of a crime will 

be found in a particular place.” [Citation.] The magistrate’s 

determination of probable cause is entitled to deferential review. 

[Citation.]’ [Citation.] Probable cause sufficient for issuance of 

a warrant requires a showing in the supporting affidavit that 

makes it substantially probable that there is specific property 

lawfully subject to seizure presently located in the particular 

place for which the warrant is sought.” (People v. Scott (2011) 

52 Cal.4th 452, 483 (Scott).) 

“A defendant has a limited right to challenge the veracity 

of statements contained in an affidavit of probable cause made 

in support of the issuance of a search warrant. The trial court 

must conduct an evidentiary hearing only if a defendant makes 

a substantial showing that (1) the affidavit contains statements 

that are deliberately false or were made in reckless disregard of 

the truth, and (2) the affidavit’s remaining contents, after the 

false statements are excised, are insufficient to support a 

finding of probable cause. Innocent or negligent 

misrepresentations will not support a motion to traverse. 

[Citations.] A defendant who challenges a search warrant based 

on omissions in the affidavit bears the burden of showing an 

intentional or reckless omission of material information that, 

when added to the affidavit, renders it insufficient to support a 

finding of probable cause. [Citations.] In either setting, the 

defendant must make his showing by a preponderance of the 

evidence, and the affidavit is presumed valid.” (Scott, supra,

52 Cal.4th at p. 484.) 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

91

On appeal, “[w]e defer to the trial court’s express and 

implied factual findings if supported by substantial evidence, 

but we independently determine the legality of the search under 

the Fourth Amendment.” (People v. Eubanks (2011) 

53 Cal.4th 110, 133.) We consider each of defendant’s 

contentions in turn. 

First, the trial court’s reading of the Kleenex box 

statement to mean “that the authorities collected the evidence, 

[and] believed the blood on the box was that of the suspect when 

he forced entry into the building” (but not to suggest “that the 

analysis had been done and that the blood on the box was that 

of Mr. Miles”) is supported by the record. Indeed, the affidavit’s 

first several pages detailed the series of robberies and rapes, 

referring throughout to the “suspect” or the “subject” of those 

crimes, and made no mention of defendant or his arrest. 

Reading this statement’s reference to the “suspect” of the 

Andersens crime to mean defendant is thus strained, as the trial 

court found. 

That said, Detective Lore’s testimony about his own 

statement necessarily complicates the analysis. At one point, 

Detective Lore confirmed that the purpose of his statement was 

to assert that there was a “scientific link” between the Kleenex 

box and defendant. When later questioned by the prosecutor, 

however, Detective Lore said that he believed only that the “San 

Bernardino Police Department had collected the Kleenex box, 

along with the blood stained Kleenexes, that were placed into 

evidence and they were going to be shipped to the Crime Lab.” 

He also confirmed that at the time of his statement, he was not 

aware that the statement was untrue, and he did not make it 

with the intent to deceive the magistrate judge. Faced with this

inconsistent testimony, and with the opportunity to assess 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

92

Detective Lore’s demeanor and credibility, the trial court found 

that his statement was not intentionally false or made with a 

reckless disregard for the truth. Though the testimony is less 

than clear, there was certainly substantial evidence to support 

the trial court’s finding. (See People v. Troyer (2011) 

51 Cal.4th 599, 613 [“on appeal from the denial of a motion to 

suppress, we are bound by the trial court’s resolution of disputed 

facts and inferences as well as its evaluations of credibility . . . 

where (as here) the findings are supported by substantial 

evidence”].) Simply put, the trial court was entitled to credit 

Detective Lore’s clarification that he meant to convey in his 

affidavit that the Kleenex evidence was merely being shipped to 

the crime lab and that he in no way intended to deceive the 

magistrate. 

In any event, even assuming that this statement was

intentionally false or made with a reckless disregard for the 

truth, and accordingly was excised from the affidavit, the 

affidavit would nevertheless establish probable cause. The

affidavit catalogued the similarities among the series of rapes 

and robberies, including that the crimes occurred on weekday 

evenings at professional offices, that several of the victims were 

bound with telephone cords, and that the suspect was described 

as a tall, Black man who was armed. In addition, the affidavit

described the consistencies between these incidents and the 

rape and robbery for which defendant was arrested and

described defendant as a tall, Black man with AB blood, which 

was consistent with the suspect descriptions and the forensic 

analysis. 

Second, we turn to the affidavit’s statement about 

Heynen’s lineup identification. The affidavit stated that 

Heynen “tentatively” identified defendant in a photographic 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

93

lineup by saying “ ‘It could be him.’ ” Although the affidavit did 

not state that Heynen had identified another individual during 

an earlier photographic lineup, Detective Lore testified that he 

orally informed the magistrate judge about prior warrants 

obtained during the investigation for other suspects. It is 

conceivable that overstating the certainty of identifications 

made by victims or selectively including details about such

identifications may be substantially misleading in some 

circumstances. But here, the affidavit described Heynen’s 

identification of defendant as tentative and quoted her equivocal 

statement that “ ‘It could be him.’ ” The omitted fact of Heynen’s 

earlier identification, when added to the affidavit, does not 

render the affidavit insufficient to support a finding of probable 

cause. As described above, the affidavit contained ample

information to establish probable cause, including but not 

limited to the similarities among the series of rapes and 

robberies and the consistencies between these incidents and the 

rape and robbery for which defendant was arrested.22

Finally, substantial evidence supports the trial court’s 

finding as to defendant’s third contention regarding the suspect 

descriptions. The affidavit plainly stated the range of the 

suspect’s height as described by the victims, and in the 

immediately following sentence, set forth defendant’s actual 

height and weight. The affidavit therefore made clear the 

discrepancies between the suspect descriptions and defendant’s 

 

22 To the extent that defendant challenges any related 

omission concerning earlier suspects in the investigation, “[t]he 

fact that law enforcement had investigated other leads had no 

bearing on whether probable cause existed to issue the warrant 

to search [the defendant’s] home and car.” (People v. Sandoval

(2015) 62 Cal.4th 394, 408.) 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

94

characteristics, as Detective Lore testified he intended to do. 

Considering this, the fact that he elsewhere in his affidavit 

summarized the suspect descriptions as similar or matching

does not show that he made a false statement, much less made 

a false statement with an intent to deceive or a reckless 

disregard for the truth. Similarly, his opinion that, based on his 

experience as a policeman, “Mr. Miles displays the physical 

characteristics as described by the majority of the victims in 

these cases” does not amount to an intentional or reckless 

falsehood, particularly since he testified that his experience as 

a policeman indeed taught him that victims were not always 

accurate in describing suspects. Nor do we find an intentional 

or reckless omission of material information regarding the 

suspect descriptions that, when added to the affidavit, renders 

the affidavit insufficient to establish probable cause.

23

 

For these reasons, the trial court did not err. 

B. Instruction Regarding Motive

Pursuant to CALJIC No. 2.51, the jury was instructed as 

follows: “Motive is not an element of the crime charged and need 

not be shown. However, you may consider motive or lack of 

motive as a circumstance in this case. Presence of motive may 

 

23 Defendant also claims that Detective Lore previously 

detailed these suspect descriptions in earlier affidavits for two 

other suspects in the investigation and that Detective Lore’s 

inconsistent approach regarding the suspect descriptions within 

those affidavits and the affidavit here evidenced a lack of good 

faith in the affidavit here. But how Detective Lore presented 

the suspect descriptions in earlier affidavits for two other 

suspects does not alter our conclusion that the affidavit here 

contained no false statement and omitted no material 

information regarding the suspect descriptions. 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

95

tend to establish the defendant is guilty. Absence of motive may 

tend to show the defendant is not guilty.” Defendant contends 

this instruction impermissibly lowered the prosecution’s burden 

of proof for the murder by torture charge and the penetration by 

a foreign object charges in violation of his federal constitutional 

rights because, according to defendant, motive was “effectively” 

an element of those crimes. We disagree. 

1. Murder by Torture 

The trial court instructed the jury that murder by torture 

requires in relevant part “a willful, deliberate, and premeditated 

intent to inflict extreme and prolonged pain upon a living 

human being for the purpose of revenge, extortion, persuasion 

or for any sadistic purpose.” Defendant argues that this 

“purpose” element was effectively negated by instructing the 

jury that motive was not an element of murder by torture.

We previously rejected that precise argument in People v. 

Whisenhunt (2008) 44 Cal.4th 174, 218. In Whisenhunt, the 

defendant argued that CALJIC No. 2.51 “had the effect of 

negating the element of ‘sadistic purpose’ in the first degree 

murder by torture instruction, CALJIC No. 8.24.” (Whisenhunt, 

at p. 218; see also id. at p. 219, fn. 11 [CALJIC No. 8.24 stated

in relevant part, “for the purpose of revenge, extortion, 

persuasion or for any sadistic purpose”].) We observed that the 

Court of Appeal had previously rejected that argument in People 

v. Lynn (1984) 159 Cal.App.3d 715, and we concluded that Lynn

“correctly decided this issue.” (Whisenhunt, at p. 218.) We 

explained, “ ‘[A]lthough malice and certain intents and purposes 

are elements of the crimes, . . . motive is not an element.’ 

[Citation.] ‘Motive describes the reason a person chooses to 

commit a crime. The reason, however, is different from a 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

96

required mental state such as intent or malice.’ ” (Ibid.) We see

no reason to depart from Whisenhunt here. 

Nor does defendant’s reliance on People v. Maurer (1995) 

32 Cal.App.4th 1121, 1125 compel a departure. In Maurer, the 

trial court instructed the jury that misdemeanor child 

annoyance required that “ ‘[the] acts or conduct were motivated 

by an unnatural or abnormal sexual interest.’ ” (Id. at p. 1125, 

italics added.) The trial court additionally instructed the jury

that motive was not an element of the crime charged and need 

not be shown. Reasoning that “the question whether ‘motive’ is 

somehow different from ‘motivation’ or ‘motivated by’ is a 

question of some academic interest but of little practical 

significance,” the Court of Appeal held that the trial court erred 

by not excluding this misdemeanor child annoyance charge from 

the motive instruction of CALJIC No. 2.51. (Maurer, at p. 1127.) 

Unlike the charge in Maurer, however, the murder by torture 

charge here did not reference or require motive, or any 

derivation of that term. (Cf. People v. Hillhouse (2002)

27 Cal.4th 469, 503–504 (Hillhouse) [distinguishing Maurer

where motive was not element of crime].) We find no error. 

2. Penetration by a Foreign Object 

The trial court instructed the jury that penetration by a 

foreign object under section 289, subdivision (a) requires in 

relevant part that “[t]he penetration was done with the purpose 

and specific intent to cause sexual arousal, gratification or 

abuse.” The trial court further instructed the jury that “the 

‘specific intent to cause sexual abuse,’ as used in this 

instruction, means a purpose to injure, hurt, cause pain or to 

cause discomfort. It does not mean that the perpetrator must 

be motivated by sexual gratification or arousal or have a lewd 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

97

intent.” Here, again, defendant argues that this “purpose and 

specific intent” element was effectively negated by instructing 

the jury that motive was not an element of this offense.

We have made clear, however, that motive is not an 

element of an offense merely because the offense requires a 

particular purpose or intent. (See, e.g., Hillhouse, supra,

27 Cal.4th at pp. 503–504.) Accordingly, motive was not an 

element of the penetration by a foreign object charges simply by 

virtue of the charges requiring a particular “purpose and specific 

intent.” (Cf. People v. White (1986) 179 Cal.App.3d 193, 198, 

205–206 [regarding the “ ‘purpose of sexual arousal, 

gratification, or abuse’ ” requirement of former section 289, 

subdivision (a), “it is the nature of the act that renders the abuse 

‘sexual’ and not the motivations of the perpetrator”].) Defendant

points to no authority suggesting otherwise. We find no error. 

C. Instruction Regarding Intent to Kill

Defendant contends that the jury was not properly 

instructed regarding the intent-to-kill requirement of the 

torture-murder special circumstance and therefore the jury’s 

finding on this special circumstance violates state and federal 

law and must be reversed. The trial court instructed the jury 

pursuant to CALJIC No. 8.80.1 that if it found defendant guilty 

of first degree murder, the jury must determine if one or more 

of the following special circumstances are true: “the murder was 

committed by the defendant while in the commission of, or 

attempted commission of a robbery, rape or burglary; or the 

murder was intentional and involved the intent to inflict 

torture. . . . Unless an intent to kill is an element of a special 

circumstance, if you are satisfied beyond a reasonable doubt 

that the defendant actually killed a human being, you need not 
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Opinion of the Court by Groban, J.

98

find that the defendant intended to kill in order to find the 

special circumstance to be true.”

Regarding the torture-murder special circumstance, the 

trial court instructed the jury pursuant to CALJIC No. 8.81.18, 

over the defense’s objection: “To find that the special 

circumstance, referred to in these instructions as murder 

involving infliction of torture is true, each of the following facts 

must be proved: [¶] 1. The murder was intentional; and; [¶] 2. 

The defendant intended to inflict extreme cruel physical pain 

and suffering upon a living human being for the purpose of 

revenge, extortion, persuasion or for any sadistic purpose. 

Awareness of pain by the deceased is not a necessary element of 

torture.”

Defendant argues that CALJIC No. 8.81.18’s directive

that “[t]he murder was intentional” did not adequately instruct 

the jury as to the intent-to-kill requirement of the 

torture-murder special circumstance. He acknowledges that in 

some cases, CALJIC No. 8.81.18 may adequately instruct the 

jury as to this requirement. But he argues that where, as here,

the jury was presented with multiple theories of first degree 

murder — specifically, premeditation and deliberation, torture, 

and felony murder — and two of those theories did not require

an intent to kill, CALJIC No. 8.81.18’s directive that “[t]he 

murder was intentional” did not necessarily require the jury to 

find that defendant intended to kill but rather required the jury 

simply to find that defendant intended to inflict torture or 

intended to commit the crime of rape, robbery, or burglary. In 

support of this argument, defendant relies on People v. Pearson

(2012) 53 Cal.4th 306 (Pearson). 
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Opinion of the Court by Groban, J.

99

In Pearson, the trial court included torture in the list of 

felonies on which the jury could base a felony-murder special 

circumstance and as to which the jury needed to find only that 

defendant, if not the actual killer, acted as a major participant 

and with reckless indifference to human life. (Pearson, supra,

53 Cal.4th at p. 322.) This instruction “incorrectly described the 

mental state element of the torture-murder special 

circumstance [citation], which requires the intent to kill.” (Id.

at p. 323.) The trial court thus erred in its instructions on the 

intent-to-kill requirement of the torture-murder special 

circumstance. 

We were unable to conclude beyond a reasonable doubt 

that “the court’s instructional error, the omission of an intentto-kill requirement for an accomplice’s liability under the 

torture-murder special circumstance, was harmless.” (Pearson,

supra, 53 Cal.4th at p. 323.) The jury’s verdict form showed “its 

reliance on an aiding and abetting theory,” and the jury made 

no finding “as to whether defendant aided and abetted his 

accomplices’ fatal acts with the intent to kill or merely with 

reckless indifference to the victim’s life.” (Ibid.) The “confusing”

language provided on the verdict form for the torture-murder 

special circumstance also “[fell] short of a finding defendant 

personally intended to kill.” (Id. at p. 323, fn. 7 [“ ‘that the 

defendant . . . committed the murder [of the victim] was 

intentional and involved the infliction of torture’ ”].) In those 

circumstances, we found that CALJIC No. 8.81.18 did not 

supply the missing intent-to-kill element because CALJIC 

No. 8.81.18 “required the jury to find ‘[t]he murder was 

intentional,’ but not necessarily to find [the aider and abettor] 

personally harbored the intent to kill.” (Pearson, at p. 323.)
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Opinion of the Court by Groban, J.

100

Defendant’s reliance on Pearson, however, is misplaced. 

Unlike in Pearson, the instructions here did not include torture 

in the list of felonies on which the jury could base a 

felony-murder special circumstance, or as to which the jury 

needed to find only that defendant acted with reckless 

indifference to human life. In addition, Pearson addressed 

CALJIC No. 8.81.18 as it applied to an aider and abettor, not 

the actual killer. 

“In determining whether a legally inadequate theory was 

conveyed to the jury here, we must ask whether there is a 

‘ “reasonable likelihood” ’ that the jury understood the [relevant 

theory] in a legally impermissible manner. [Citation.] In doing 

so, we consider the instructions provided to the jury and 

counsel’s argument to the jury.” (People v. Canizales (2019) 

7 Cal.5th 591, 613; see also Hardy, supra, 5 Cal.5th at p. 97.) 

The instructions here informed the jury that it need not 

find that defendant intended to kill in order to find a special 

circumstance to be true unless an intent to kill is an element of

the special circumstance, and that in order to find the torturemurder special circumstance to be true, it must find that “[t]he 

murder was intentional.” Where, as here, defendant was the 

actual killer, CALJIC No. 8.81.18’s requirement that “[t]he 

murder was intentional” adequately instructed the jury as to the 

intent-to-kill requirement of the torture-murder special 

circumstance. (Cf. People v. Pensinger (1991) 52 Cal.3d 1210, 

1256 [“Further, defendant’s intent to kill was established by the 

jury when it found the torture-murder special circumstance 

true, as that allegation was that ‘[t]he murder was intentional 

and involved the infliction of torture.’ ”]; accord, People v. Leach

(1985) 41 Cal.3d 92, 108, 110.) In addition, the prosecutor 

correctly informed the jury that in order to find the torture-
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Opinion of the Court by Groban, J.

101

murder special circumstance to be true, the jury must find “an 

intentional murder.”24 Accordingly, there was no error in these 

circumstances.

D. Felony-Murder Special Circumstances

Defendant contends that the felony-murder special 

circumstances are unconstitutional because they do not require

a finding of a culpable mental state when the defendant is the 

actual killer. “We have repeatedly held that when the defendant 

is the actual killer, neither intent to kill nor reckless 

indifference to life is a constitutionally required element of the 

felony-murder special circumstance.” (People v. Jackson (2016) 

1 Cal.5th 269, 347; see People v. Watkins (2012) 55 Cal.4th 999, 

1033–1034.) We decline to revisit this issue here, particularly 

since the jury found for purposes of another special 

circumstance that Willem’s murder was indeed intentional. 

 

24 The prosecutor argued as follows: “Finally, we have a 

fourth special circumstance. The murder was intentional. 

Again, it has to be an, an intentional murder. Not an implied 

malice murder like with the first degree torture theory that we 

described earlier. Now we’re into the torture special 

circumstance. Again, I know there’s some overlapping words 

here, but to get to torture first degree murder, which is what I 

discussed a minute ago. [¶] Remember, the murder, it has to be 

murder, but there doesn’t have to be an intent to kill. To get to 

the special circumstance first you have to find that there was an 

intentional murder, and again we’ve established, through the 

method of death, the method of attack, the repetitive nature, 

again the strangulation, we know the murder was intentional. 

There’s no issue there.”
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IV. COMPETENCY PHASE ISSUES 

Admission of Defense Counsel’s Testimony 

Regarding Counsel’s “Strategies and Tactics” 

After the guilt phase, the trial court declared a doubt as to 

defendant’s competency, suspended proceedings pursuant to 

section 1368, and commenced a competency trial before a 

separate jury. Defendant was appointed a different attorney 

from the public defender’s office, David Negus, to represent him 

in the competency trial. At the competency trial, the defense 

argued that defendant was not able to rationally cooperate with 

his trial counsel, Joseph Canty, and thus was not competent to 

stand trial. Canty testified on behalf of the defense, and over 

the defense’s objection, the prosecutor cross-examined him. 

Defendant contends that the trial court erred in allowing the 

prosecutor to cross-examine Canty about his “trial tactics and 

motive for seeking a competency hearing” because this

testimony was irrelevant, prejudicial, and protected from 

disclosure by the attorney-client privilege and attorney work 

product doctrine. We examine each of defendant’s contentions 

in turn. 

1. Competency Trial

a. Defense evidence

Five doctors testified on behalf of the defense. Dr. Dudley 

testified that defendant suffered from schizo-affective disorder 

and cognitive deficits and was not able to rationally cooperate 

with his counsel. Dr. Wu testified that defendant’s PET brain 

scan showed abnormalities that were consistent with 

schizophrenia, and Dr. Meth testified that defendant’s SPECT 

brain scan showed abnormalities, which were consistent with 

those shown in the PET scan. Dr. Shoba Sreenivasan, a clinical 
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Opinion of the Court by Groban, J.

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psychologist, testified that defendant was not able to rationally 

cooperate with his counsel. Dr. Lantz testified that he 

diagnosed defendant as schizophrenic undifferentiated, 

determined defendant’s intelligence to be below average, and 

did not believe that defendant was able to rationally cooperate 

with his counsel as a result of his mental illness.

In addition to these doctors, Canty testified. Before he did, 

the trial court evaluated whether he could testify without 

obtaining an attorney-client privilege waiver from defendant 

and to what extent the prosecutor could cross-examine him. The 

trial court concluded that Canty could testify without obtaining 

a waiver since it was not clear that defendant was capable of 

waiving the privilege. The trial court refrained, however, from 

defining the scope of permissible cross-examination at the 

outset, suggesting instead that counsel request to approach the 

bench should the testimony near Canty’s “strategy, motive, trial 

tactics.” 

Canty began his direct testimony by describing his 

experience with capital cases and his relationship with 

defendant. He proceeded to chronicle his concerns about

defendant’s decision-making in the case, detailing, among other 

things, defendant’s refusal to consider a potential plea deal, his

desire to testify in the guilt and penalty phases, and his wish to 

present no mitigating evidence during the penalty phase. Canty

testified that he did not believe defendant could rationally 

cooperate with him. 

On cross-examination, Canty acknowledged that his 

obligation in representing defendant was to exhaust every legal 

remedy that avoids the death penalty. The prosecutor then 

inquired into prior occasions on which Canty had voiced
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Opinion of the Court by Groban, J.

104

concerns about defendant’s competency in this case. With 

respect to one occasion, earlier in this case, Canty confirmed 

that defendant ultimately waived his right to a competency jury 

trial and that “a number of factors” went into that decision, 

including a “tactical” consideration in seeking to avoid pretrial 

publicity.

The prosecutor next asked whether the guilt phase jurors 

were “in limbo” pending the outcome of this competency trial, to 

which Canty confirmed that they were told to “potentially” come 

back later that month. The prosecutor asked, “And the effect of 

a finding of incompetency in this particular trial would mean 

that that jury would be discharged, would it not?” Canty 

responded, “That would be up to the Judge.” When the 

prosecutor directed Canty’s attention to a statutory provision

(section 1368) — which, according to the prosecutor, provided 

that the jury would be discharged upon a finding of 

incompetency — Canty said he was not familiar with that 

provision.

25

 The prosecutor then asked, “Well, if there is a 

finding of incompetency, I’m sure you would be arguing that the 

jury should be discharged, would you not?” Canty replied, 

“That’s hard to know, because you have to know what the 

proposed treatment plan is going to be. And I don’t know what 

the Judge will feel about keeping the jury.” The prosecutor 

followed up, asking, “Frequently there’s a, there’s a tactical 

advantage in death penalty cases to have a second, separate jury 

 

25 Later in his testimony, Canty acknowledged that he 

subsequently reviewed the provision and that the prosecutor 

had accurately recited it. Canty testified that he did not recall 

the provision until the prosecutor had recited it, but 

acknowledged that he previously had discussed the impact of a 

finding of incompetency with his colleagues and the press. 
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Opinion of the Court by Groban, J.

105

impaneled for the penalty phase that did not hear the guilty 

phase; is that correct?”

The defense immediately asked to approach the bench. 

Outside the presence of the jury, the defense stated, “It sounds 

like we’re getting into Mr. Canty’s tactical decisions. I realize 

thus far it’s been expressed just in the abstract, but [it would] 

appear that we’re starting to focus in on it in this particular 

case.” The defense objected to the line of questioning as 

irrelevant and prejudicial. In response, the prosecutor 

explained that he intended to show that Canty’s motive for this 

competency trial was to obtain a new penalty phase jury. The 

trial court took the matter under submission. It ultimately 

ruled that the prosecutor could bring before the jury “this 

question of motivation” for the competency trial. The trial court

instructed the prosecutor, however, that he otherwise should 

probably “stay away” from asking about “what’s going on in 

[Canty’s] mind.” 

Back in the presence of the jury, the prosecutor returned

to his question as to whether “[f]requently it’s a defense tactic in 

capital cases to seek a new jury for the penalty phase.” Canty 

testified, “I can’t answer that yes or no. I would think that 

depending upon the status of the case and a given case, I could 

conceive that counsel might wish to have another jury handle 

the penalty phase, and there would be a variety of reasons for 

that.” Asked about another capital case where he had tried the 

penalty phase before a jury, Canty confirmed that he had moved

for a new penalty phase jury in that case. The prosecutor’s

remaining, and relatively extensive, questioning regarded

Canty’s concerns about defendant’s decision-making in the case.
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106

On a brief recross-examination, Canty confirmed that in 

determining defendant’s sentence, the penalty phase jury would 

consider evidence it had heard during the guilt phase. In the 

event of a new penalty phase jury, he explained that the 

witnesses who testified in the guilt phase would either be 

recalled, or counsel would stipulate as to their testimony. 

Finally, the prosecutor asked whether Canty had previously told 

the prosecution in this case that he may move for a new penalty 

phase jury. Canty responded, “I — if I — I don’t remember 

making that statement. I wouldn’t say that I didn’t. I don’t 

remember saying that.” The prosecutor followed up, asking, 

“It’s possible? And by that I mean, motion for a separate penalty 

phase jury?” Canty responded, “Yes. If that’s — that’s the 

question I’m answering, yes.” The parties subsequently 

stipulated that Canty “has not made a motion for separate juries 

for guilt and penalty phase in this case.”

b. Prosecution evidence 

A forensic psychologist, Dr. Lee Guerra, testified that 

defendant was competent to stand trial and that he suspected 

defendant was malingering mental illness. A psychiatrist, Dr. 

Jose Moral, likewise testified that defendant was competent to 

stand trial and that he, too, suspected defendant was 

malingering mental illness.26 

An investigator testified that when he served defendant 

with a court order for a handwriting exemplar, defendant

refused to comply. The investigator believed that defendant 

understood the request but considered it to not be in his best 

 

26 In rebuttal, the defense offered testimony from Dr. Ronald 

Roston to refute portions of Dr. Moral’s testimony.
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Opinion of the Court by Groban, J.

107

interest to comply with it. A videotape showing defendant

watching and playing chess with other inmates in jail was also 

played for the jury, and Deputy Billings testified that 

defendant’s behavior on the tape was generally consistent with 

his behavior in jail.

27

 

2. Discussion 

a. Whether the testimony was irrelevant and

unduly prejudicial 

Only relevant evidence is admissible. (Evid. Code, § 350.) 

Relevant evidence is defined as “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.” 

(Evid. Code, § 210.) “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue 

 

27 The prosecutor’s closing argument discussed Canty’s 

possible motivations for the competency trial, in approximately 

two transcript pages of the total 32-page closing argument. In 

relevant part, the prosecutor argued that Canty’s “role is to use 

every legal means to insure [sic] that Miles escapes the death 

penalty,” and reminded the jury that Canty previously moved 

for a new penalty phase jury in another capital case and that a 

finding of incompetence in this trial would guarantee the same 

result. The prosecutor urged the jury, “make no mistake that 

the competency issue is played as a tactic,” that Canty used that 

tactic earlier in this case, and that “it is a tactic that gets 

played.” The prosecutor later repeated, “[c]onsider that 

[defendant’s] attorneys are doing the best they can and they’re 

going to use every legal means so that he avoids the death 

penalty.” The defense did not object during the prosecutor’s 

closing argument. 
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Opinion of the Court by Groban, J.

108

prejudice, of confusing the issues, or of misleading the jury.” 

(Evid. Code, § 352.) “ ‘Prejudice,’ as used in Evidence Code 

section 352, is not synonymous with ‘damaging.’ [Citation.] 

Rather, it refers to evidence that uniquely tends to evoke an 

emotional bias against the defendant as an individual, and has 

little to do with the legal issues raised in the trial.” (People v. 

McCurdy (2014) 59 Cal.4th 1063, 1095.) 

“A trial court has ‘considerable discretion’ in determining 

the relevance of evidence. [Citation.] Similarly, the court has 

broad discretion under Evidence Code section 352 to exclude 

even relevant evidence if it determines the probative value of 

the evidence is substantially outweighed by its possible 

prejudicial effects. [Citation.] An appellate court reviews a 

court’s rulings regarding relevancy and admissibility under 

Evidence Code section 352 for abuse of discretion.” (Merriman,

supra, 60 Cal.4th at p. 74.) “ ‘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.’ ” ’ ” (People v. Mora and 

Rangel (2018) 5 Cal.5th 442, 480.) 

Here, defendant argues that the testimony about Canty’s 

“strategy and tactics” was irrelevant and unduly prejudicial. 

Defendant “recognizes that in many cases, evidence of a 

testifying witness’s motivation might be useful to assessing the 

credibility of the witness,” but he argues, with little explanation, 

that Canty “was a sworn officer of the court [and] testifying 

under penalty of perjury.” Defendant additionally argues that 

“the prosecutor’s theory that Mr. Canty’s state of mind would 

shed light on [defendant’s] mental health required the exact 

type of speculative inference condemned by this court.” In 
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Opinion of the Court by Groban, J.

109

response, the Attorney General argues that Canty’s testimony 

was relevant both to Canty’s credibility and to show “the 

potential benefits of faking incompetence” since the prosecutor 

argued that defendant was faking incompetence for an ulterior 

purpose. 

We conclude that the trial court did not abuse its 

discretion under Evidence Code section 352 when it permitted

the prosecutor to cross-examine Canty about his possible motive 

for seeking a competency trial. As noted, Canty was a witness 

during the competency trial and did not represent defendant for 

purposes of that trial. Whether the guilt phase jury would be 

discharged upon a finding of incompetence, whether there were 

advantages to impaneling a new penalty phase jury, and 

whether Canty previously considered seeking a new penalty 

phase jury in this case is evidence relevant to his credibility as 

a witness in this competency trial. (Cf. People v. Turner (2004) 

34 Cal.4th 406, 430 [where “defendant’s trial attorneys were 

percipient witnesses during the competency hearing,” the 

prosecutor was “free to attack their credibility based on the 

evidence in the record” and did not commit misconduct by 

suggesting that defendant’s trial attorneys raised the 

competency issue only due to “their emotional involvement in 

the case”].) To be sure, we recognize the suggestion that Canty 

harbored ulterior motives in testifying at the competency trial 

had possible prejudicial effects. In the circumstances here, 

however, we cannot say that on balance, the trial court abused 

its discretion in permitting this testimony. (See People v. Dalton

(2019) 7 Cal.5th 166, 237 [“ ‘ “Evidence is substantially more 

prejudicial than probative” ’ under Evidence Code section 352 

‘ “if, broadly stated, it poses an intolerable ‘risk to the fairness 

of the proceedings or the reliability of the outcome.’ ” ’ ”].) 
PEOPLE v. MILES

Opinion of the Court by Groban, J.

110

As to Canty’s testimony that he previously sought a new 

penalty phase jury in another capital case, defendant did not 

raise a timely and specific objection to this particular testimony. 

Although we acknowledge that defendant objected to the 

prosecutor’s overall efforts to show that Canty’s motive for the 

competency trial was to obtain a new penalty phase jury in this 

case, we find that defendant forfeited any claim of error as to

this particular testimony regarding the other capital case. Even 

if we assume for the sake of argument that this portion of his

claim was preserved and admitting this testimony was error, 

however, we would find any such error harmless in light of 

Canty’s other, properly admitted testimony, including his 

testimony that he “could conceive that counsel might wish to 

have another jury handle the penalty phase, and there would be 

a variety of reasons for that” and that it was “possible” that he 

told the prosecution that he may move for a new penalty phase 

jury in this case.

b. Whether the testimony was protected by the 

attorney-client privilege and attorney work 

product doctrines 

The attorney-client privilege protects from forced

disclosure “a confidential communication between client and 

lawyer.” (Evid. Code, § 954.) The Evidence Code defines

“confidential communication between client and lawyer” as 

“information transmitted between a client and his or her lawyer 

in the course of that relationship and in confidence by a means 

which, so far as the client is aware, discloses the information to 

no third persons other than those who are present to further the 

interest of the client in the consultation or those to whom 

disclosure is reasonably necessary for the transmission of the 

information or the accomplishment of the purpose for which the 
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Opinion of the Court by Groban, J.

111

lawyer is consulted, and includes a legal opinion formed and the 

advice given by the lawyer in the course of that relationship.” 

(Evid. Code, § 952.) The “ ‘fundamental purpose’ ” of the 

attorney-client privilege is “ ‘to safeguard the confidential 

relationship between clients and their attorneys so as to 

promote full and [frank] discussion of the facts and tactics 

surrounding individual legal matters.’ ” (Los Angeles County 

Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 292.) 

Defendant contends that admitting Canty’s testimony 

regarding his “tactical decisions” violated the attorney-client 

privilege. Canty’s challenged testimony, however, did not 

violate the attorney-client privilege because it related primarily 

to general legal principles and publicly available facts. For 

example, his testimony about the procedural effects of an 

incompetence finding or the potential advantages in impaneling 

a new penalty phase jury spoke to legal concepts in nonspecific 

terms and did not disclose the content of any confidential 

communications between Canty and defendant. (Cf. People v. 

Clark (2016) 63 Cal.4th 522, 603 [privilege not violated where 

expert witness testified regarding general legal concepts and 

“did not disclose any actual communication between defendant 

and his attorney”].)28 Similarly, his testimony about section 

1368 or about moving for a new penalty phase jury in another 

case did not violate the attorney-client privilege since those facts 

were publicly available. (See People v. Combs (2004) 

34 Cal.4th 821, 865–866 [privilege not violated by eliciting 

information contained in public record].) 

 

28 Nor did it disclose the content of any legal opinions formed 

in the course of representing defendant, as defendant contends. 
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Opinion of the Court by Groban, J.

112

Admittedly, a couple of the prosecutor’s questions came 

closer to potentially eliciting privileged information. First, the 

prosecutor asked whether Canty would argue for a new penalty 

phase jury upon a finding of incompetency in this case (putting 

aside any applicable statutory provision). Although this 

question moved beyond the more general line of questioning, 

Canty’s noncommittal response to this hypothetical question 

that it was “hard to know” and that he did not know “what the 

Judge [would] feel about keeping the jury” fell short of revealing

any privileged information. Second, the prosecutor asked 

whether Canty previously told the prosecution that he was 

considering moving for a new penalty phase jury in this case, 

again going beyond the abstract and into the specifics of this 

case. However, information communicated to the prosecution 

would not have remained privileged. And in any event, Canty 

testified that, although it was possible, he did not recall whether 

he in fact told the prosecution that. Thus, despite these closer 

calls, none of his testimony ultimately disclosed any privileged 

information. 

As to the attorney work product doctrine, section 1054.6 

currently provides in relevant part that “[n]either the defendant 

nor the prosecuting attorney is required to disclose any 

materials or information which are work product as defined in 

subdivision (a) of Section 2018.030 of the Code of Civil 

Procedure, or which are privileged pursuant to an express 

statutory provision, or are privileged as provided by the 

Constitution of the United States.”29 Code of Civil Procedure 

 

29 When defendant committed his crimes and his trial took 

place, “Penal Code section 1054.6 referred to Code of Civil 
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Opinion of the Court by Groban, J.

113

section 2018.030, subdivision (a) in turn provides: “A writing 

that reflects an attorney’s impressions, conclusions, opinions, or 

legal research or theories is not discoverable under any 

circumstances.” Code of Civil Procedure section 2018.030, 

subdivision (b) separately provides that “[t]he work product of 

an attorney, other than a writing described in subdivision (a), is 

not discoverable unless the court determines that denial of 

discovery will unfairly prejudice the party seeking discovery in 

preparing that party’s claim or defense or will result in an 

injustice.” The policy behind the work product doctrine is to 

“[p]reserve the rights of attorneys to prepare cases for trial with 

that degree of privacy necessary to encourage them to prepare 

their cases thoroughly and to investigate not only the favorable 

but the unfavorable aspects of those cases [and to] [p]revent 

attorneys from taking undue advantage of their adversary’s 

industry and efforts.” (Code Civ. Proc., § 2018.020.) 

Defendant contends that admitting Canty’s testimony 

regarding his “tactical decisions” not only violated the attorneyclient privilege but also violated the absolute attorney work 

product doctrine. Defendant argues that admitting this 

testimony violated the attorney work product doctrine, 

regardless of whether the work product was reduced to writing 

or not, because “despite the arguably contrary language of 

California’s absolute work product statute, the privilege also 

applies to non-written work product.” Disagreeing, the Attorney 

General argues that “[t]he prosecutor’s questions to Canty did 

 

Procedure former section 2018, subdivision (c), which then 

stated the absolute work product protection now stated in Code 

of Civil Procedure section 2018.030, subdivision (a).” (People v. 

Zamudio (2008) 43 Cal.4th 327, 355, fn. 14.) 
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Opinion of the Court by Groban, J.

114

not relate to any writing reflecting his impressions, conclusions, 

opinions, legal research or theories and thus could not have 

impinged any valid work product privilege.” The Attorney 

General further argues that “Canty was not asked to, and did 

not, divulge any otherwise privileged or confidential 

information;” instead, his testimony regarded matters disclosed 

to the prosecutor or in public records, and consisted of evasive 

responses that “did not disclose any unique impressions, 

conclusions, opinions, or theories.” 

We need not decide whether Canty’s oral testimony 

qualified as attorney work product or whether admitting it 

violated the attorney work product doctrine. Even if we assume 

that error occurred, it was not reversible. The Attorney General 

and defendant disagree as to which standard of prejudice 

applies here. Regardless, we would find it harmless under 

either standard. (See People v. Watson (1956) 46 Cal.2d 818; 

Chapman v. California (1967) 386 U.S. 18.) As Canty 

acknowledged, section 1368 itself provided that the jury would 

be discharged if defendant were found mentally incompetent. In 

addition, Canty acknowledged that “depending upon the status 

of the case and a given case,” he “could conceive that counsel 

might wish to have another jury handle the penalty phase, and 

there would be a variety of reasons for that.” Canty also 

acknowledged that it was “possible” that he told the prosecution 

that he may move for a new penalty phase jury in this case. To 

the extent admitting other portions of Canty’s challenged 

testimony may have violated the attorney work product 

doctrine, we find any such error harmless in light of Canty’s 

properly admitted testimony. We therefore find no reversible 

error. 
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115

V. PENALTY PHASE ISSUES

A. Admission of Evidence of Crimes Committed as 

a Juvenile 

Over the defense’s objection, the trial court took judicial 

notice of 14 of defendant’s prior convictions. Eight of these 

convictions were for crimes that defendant committed when he 

was 17 years old. Defendant contends that considering those

convictions violated his rights under the Eighth Amendment to 

the United States Constitution. This contention fails. 

If a defendant committed an offense while under the age 

of 18, but was tried and convicted as an adult, “the conviction 

would be admissible at the penalty phase under section 190.3, 

factor (c).” (People v. Williams (2010) 49 Cal.4th 405, 462; 

People v. Pride (1992) 3 Cal.4th 195, 256–257.) Defendant 

acknowledges this but urges us to reconsider the issue based on 

the high court’s decisions in Roper v. Simmons (2005) 

543 U.S. 551, Graham v. Florida (2010) 560 U.S. 48, Miller v. 

Alabama (2012) 567 U.S. 460, and Hall v. Florida (2014) 

572 U.S. 701. We recently rejected a similar argument

premised on those same four decisions and held that presenting

evidence of a defendant’s violent juvenile misconduct under 

section 190.3, factor (b) did not violate the Eighth Amendment.

30

(See Rices, supra, 4 Cal.5th at pp. 86–87.) We likewise reject 

 

30 Even where “[j]uvenile adjudications are inadmissible as 

evidence in aggravation . . . because they are not ‘prior felony 

convictions’ within the meaning of section 190.3, factor (c),” 

violent “conduct underlying the adjudication is relevant to the 

jury’s penalty determination and admissible as violent criminal 

activity under [section 190.3] factor (b).” (People v. Taylor (2010) 

48 Cal.4th 574, 653.)
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Opinion of the Court by Groban, J.

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defendant’s argument here and find no error in admitting

defendant’s prior convictions under section 190.3, factor (c). 

B. Admission of Evidence of Unadjudicated 

Offenses 

The prosecution devoted part of its case in aggravation to 

unadjudicated criminal activity and presented testimony 

concerning four incidents involving Yenerall, Heynen, Kendrick, 

and Arnold. Defendant, however, contends that permitting 

Yenerall, Heynen, Kendrick, and Arnold to testify violated his 

state and federal constitutional rights to a reliable penalty 

phase, due process, a fair trial, and confrontation, and to present 

a defense because the state lost or destroyed the following 

evidence relating to those four incidents: information as to 

which suspect sketches Yenerall and Heynen saw; a photo 

lineup in which Yenerall recalled identifying defendant; the 

Steven Dyer photo lineup shown to Heynen; the Randy Winters 

photo lineup shown to Kendrick; and the Roger Egans photo 

lineup shown to Arnold.31 We disagree.

1. Background 

a. Yenerall 

Following the January 6, 1992 incident, Yenerall viewed a 

photo lineup in which she identified a man named Orlando 

Boone. That lineup was provided to the defense. She

subsequently attended a live lineup that included Boone, but 

she did not identify him. After that, there is disagreement as to

whether she viewed another photo lineup: She recalled viewing 

 

31 Although defendant initially contended that he also did 

not know whom Heynen identified in the Boone photo lineup, 

defendant conceded this point in his reply brief. 
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Opinion of the Court by Groban, J.

117

another one and identifying defendant in it, but the police had 

no record of any such lineup and believed she misremembered 

it.

In addition, she viewed a sketch of the suspect. The police

composed several suspect sketches during the investigation, and 

it appears that those sketches were provided to the defense in 

this case. As to which sketch she personally saw, she did not 

recall, but Detective Lore testified that she saw one of two 

specific sketches. The defense argued, however, that “[a]lthough 

[Detective Lore] believed [Yenerall was shown] one of two 

composites in evidence, he did not know which one was shown 

to Yenerall and so that evidence is unavailable to the 

defendant.” Later, she identified defendant during a live lineup 

and at the preliminary hearing.

During the penalty phase of the trial, she identified 

defendant in the courtroom, testifying, “I’m certain” as to that 

identification. She also testified about previously identifying

defendant during the live lineup and during the preliminary 

hearing. Regarding the live lineup, she explained that she did 

not write a number on the lineup identification card but instead 

directly informed one of the detectives about her identification

and was “very certain” about it. On cross-examination, she 

admitted that her hesitancy to write down a number on the card 

reflected “[s]ome” uncertainty but explained that she chose not 

to write down a number because she was not obligated to do so. 

Also on cross-examination, she confirmed that she

previously viewed a photo lineup in which she identified an 

individual other than defendant and expressed “some great 

degree of certainty” as to that identification. Asked whether she 

identified an individual named Orlando Boone, she testified that 
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Opinion of the Court by Groban, J.

118

she did not recall the name of the individual but that this 

individual subsequently attended a live lineup, where she did 

not identify him or anyone else. 

b. Heynen

Heynen testified that she saw at least four photo lineups

after the January 21, 1992 incident. She recalled possibly 

pointing to someone as close in three lineups but did not recall 

identifying anyone. According to Detective Lore, Heynen later 

was not sure whether she actually saw that many lineups. 

Detective Lore testified that Heynen viewed three photo 

lineups and one book containing parolee pictures. The first 

photo lineup, shown on March 12, 1992, included an individual

named Steven Dyer. Detective Lore testified that Heynen did 

not identify Dyer in this lineup, but Detective Lore’s notes 

indicated that Heynen said, “it could be him.” This photo lineup 

was disassembled and not provided to the defense. The

prosecution, however, provided the defense with a picture of 

Dyer, although it was not the picture used in the disassembled 

lineup. The same day as that lineup, she viewed a book of

parolee pictures and said that an individual named Damon 

Cooper looked familiar. The book was provided to the defense. 

The second photo lineup included Boone. She identified another 

individual in that lineup, and the lineup was provided to the 

defense. The third photo lineup included defendant, and 

Heynen said, “it could be” him. 

She also saw a suspect sketch and assisted the police in 

creating another sketch. As noted, it appears that the sketches

were provided to the defense. The prosecutor declared that “all 

of the composites are available;” however, the defense argued 

that “like those shown to [Yenerall], the composites [shown to 
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Opinion of the Court by Groban, J.

119

Heynen] are unidentifiable.” Later, she identified defendant

during a live lineup and at the preliminary hearing.

During the penalty phase of the trial, Heynen identified 

defendant in the courtroom, testifying that she was “[v]ery 

certain” regarding her identification. She testified that she had 

previously identified defendant during a live lineup and during 

the preliminary hearing as well. On cross-examination, she said

that she had previously viewed photo lineups on “[a]bout” four 

occasions. Asked whether on two of those occasions she selected 

anyone in the lineup, she responded, “That appeared to be 

close.” She explained that in those two selections, the 

individuals could have been the perpetrator, but she was not 

sure. Asked whether she selected a picture of defendant and 

said it could be him, she testified that she was never told 

whether any of the pictures were of defendant. 

c. Kendrick

After the February 19, 1992 incident, Kendrick recalled 

viewing two photo lineups. He testified that he did not identify 

anyone in either of these lineups. However, Detective Lore 

testified that in one of these lineups, on March 26, 1992, 

Kendrick identified an individual named Randy Winters with a 

certainty of eight out of ten. This photo lineup was disassembled 

and not available to the defense. The prosecution, however,

provided the defense with a copy of Winters’s DMV picture, 

which was not the picture used in the disassembled lineup.

In addition, Kendrick saw a sketch of the suspect and 

assisted the police in creating another sketch of the suspect, 

both of which were provided to the defense. Later, Kendrick

identified defendant during a live lineup and at the preliminary 

hearing. 
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120

During the penalty phase, Kendrick identified defendant

in the courtroom and testified that he had previously identified 

defendant during the live lineup as well. He further testified 

that he had previously viewed two photo lineups but did not 

identify anyone in them. The defense did not cross-examine 

Kendrick. 

d. Arnold Andersen

Arnold Andersen testified that he viewed photo lineups on 

several occasions after the February 21, 1992 robbery, but he 

did not recall identifying anyone in them. Detective Lore 

testified that Arnold viewed two photo lineups. As to one of 

these lineups, Detective Lore testified that Arnold did not 

identify anyone but said that one individual was close. As to the 

other, Sergeant Howard Woods testified that Arnold said an 

individual named Roger Egans was the closest, with an 80

percent certainty, on May 21, 1992. Once Egans was eliminated 

as a suspect, this lineup was disassembled. The prosecution 

gave the defense a copy of Egans’s DMV photo, but the photo

was not the one used in the disassembled lineup. 

Arnold also saw a sketch of the suspect that his wife, 

Sharyn, assisted in creating. He subsequently identified 

defendant during a live lineup and at the preliminary hearing

as well. 

During their penalty phase testimony, both Arnold and 

Sharyn identified defendant in the courtroom. They testified 

that they had previously identified defendant during a live 

lineup, too. Regarding the photo lineups, Arnold testified that 

he had previously viewed two or three photo lineups but did not 

identify anyone in them. The defense did not cross-examine 

either Arnold or Sharyn. 
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121

e. Trial court’s ruling 

The prosecution originally filed an information that 

included charges relating to the January 6, January 21, 

February 19, and February 21, 1992 incidents.32 Following the 

preliminary hearing, the defense moved to strike identification 

testimony by certain witnesses under Brady v. Maryland (1963) 

373 U.S. 83 (Brady) and California v. Trombetta (1984) 

467 U.S. 479 (Trombetta). That motion was denied. The 

defense also moved to dismiss the information under section 995 

on the ground, inter alia, that admitting the identification 

testimony violated defendant’s constitutional rights. That 

motion, too, was denied. The trial court agreed that the missing 

evidence — which the court characterized “generally as the lost 

either photographs, composites or photo spreads” — was 

important but found that there was no willful or malicious 

conduct by the state. 

Later, the defense moved to sever the counts involving 

eyewitness identifications from the Willem, Christine C., 

Osburn, and Carole D. counts on the ground, inter alia, that 

severance was an appropriate sanction under section 1054.5 due 

to the missing evidence related to the eyewitness counts. The 

defense simultaneously moved again under Brady, supra,

373 U.S. 83 and Trombetta, supra, 467 U.S. 479 to preclude any 

pretrial or in-court identification testimony by, among others, 

Yenerall, Heynen, Kendrick, and Arnold. The trial court 

 

32 Even earlier in the case, the defense successfully moved to 

quash an indictment on the ground that evidence regarding 

earlier identifications made by some witnesses had not been

presented to the grand jury. At that time, the prosecutor 

acknowledged that certain exculpatory evidence indeed had not 

been presented.
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122

granted defendant’s motion for severance but denied his motion

to exclude the identification testimony. When the defense 

moved to have the severed eyewitness counts tried before the 

other counts, the court denied the motion.

Before the penalty phase, the defense moved to exclude 

evidence of these severed, unadjudicated offenses or 

alternatively, to have them tried by another jury. The trial court 

found that the “confusion that underlies” the identifications 

could be brought before the jury without the missing evidence. 

The court also found that there was no “willful, purposeful, 

malicious intent on the part of the police in destroying evidence 

that could have been helpful to Mr. Miles,” explaining that 

“these were line-ups that were put together early in the 

investigation, substantially prior to Mr. Miles being a suspect,” 

and in those cases where the police followed up on photo lineups 

shown to the victims and “found that the person could not have 

been the perpetrator,” the police “probably felt that there was 

no longer a need to keep those photo line-ups intact.” The court 

denied the motion. 

2. Discussion 

The Attorney General frames defendant’s contentions 

regarding the lost or destroyed evidence under Trombetta,

supra, 467 U.S. 479. Defendant makes clear in his reply brief, 

however, that he does “not raise a Trombetta/Youngblood Due 

Process claim.” Rather, he raises an Eighth Amendment claim 

based on the heightened reliability standard in capital cases and

Gardner v. Florida (1977) 430 U.S. 349 (Gardner), and he 

additionally asserts violations of his state and federal 

constitutional rights to due process, a fair trial, confrontation 

and to present a defense. In light of defendant’s express 
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clarification, we do not address his contentions under 

Trombetta. 

Contrary to defendant’s argument, the circumstances here 

are unlike those in Gardner, supra, 430 U.S. 349, on which 

defendant heavily relies. In Gardner, the high court vacated a 

death sentence where the trial court sentenced the defendant to 

death due in part to information in a presentence investigation 

report, portions of which were provided to the trial court but not 

disclosed to the defendant. (Id. at pp. 351, 353, 356, 362.) By 

contrast, no evidence in this case was provided to and relied on 

by the trial judge, but not disclosed to the defense.

Indeed, we have previously rejected an argument relying 

on Gardner, supra, 430 U.S. 349 in circumstances like those 

here. In People v. Rodrigues (1994) 8 Cal.4th 1060, 1160–1161, 

the defendant claimed that he was deprived of his right to a 

reliable sentencing determination and a fair opportunity to 

confront and rebut evidence against him because certain 

evidence related to an unadjudicated charge had been lost, 

including photos shown to the victim. We held that despite this 

lost evidence, there was no unfairness in admitting evidence 

regarding the unadjudicated charge. (Id. at pp. 1162–1163.) 

Here, as in Rodrigues, we conclude that the loss of evidence did 

not deprive defendant of a fair trial or a reliable sentencing 

determination. 

First, as to the suspect sketches viewed by Yenerall and 

Heynen, defendant argues on appeal that “although various 

composite sketches were available, since police could not recall 

which sketch had been shown to [Yenerall or Heynen], whatever 

value there was in the sketches was gone.” The defense, 

however, implicitly acknowledged having received the suspect 
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124

sketches, and the defense could ask Yenerall and Heynen about 

them. Second, as to a photo lineup in which Yenerall recalled 

identifying defendant, the police did not believe any such lineup 

ever existed, and Yenerall recalled identifying defendant, not 

someone else, in it. Although defendant suggests that this 

missing lineup may explain how she initially identified Boone 

yet later identified defendant, this theory, too, is speculative. It 

also ignores that between her photo identification of Boone and 

her identification of defendant, she attended a live lineup where 

she did not identify Boone, making her later identification of 

defendant less sudden than defendant suggests. Moreover, the 

defense cross-examined Yenerall about her earlier identification 

in a photo lineup of an individual other than defendant, and 

about her hesitancy to write down a number on the card when 

she identified defendant in a live lineup.

As to the remaining missing evidence (the Dyer, Winters, 

and Egans photo lineups), defendant’s contentions pose a closer 

call but ultimately, too, fall short. There is conflicting testimony

as to whether Heynen, Kendrick, and Arnold made any 

identifications in the lineups, and the lineups took place before 

defendant was a suspect. In addition, the prosecutor provided 

the defense with pictures of Dyer, Winters, and Egans, and 

while those pictures were not comparable to the missing lineups, 

the defense could ask Heynen, Kendrick, and Arnold about those 

pictures and about their identifications. Indeed, the defense 

cross-examined Heynen about having viewed photo lineups on 

“[a]bout” four occasions and having selected persons who 

“appeared to be close” on two of those occasions; the defense had 

the opportunity but declined to cross-examine Kendrick or 

Arnold. In these circumstances, we find no error and conclude 
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that admitting the testimony of these four witnesses did not 

violate defendant’s state or federal constitutional rights. 

Even assuming for the sake of argument that admitting 

this testimony was error, it was not reversible. “[E]rror in the 

admission of evidence under section 190.3, factor (b) is 

reversible only if ‘there is a reasonable possibility it affected the 

verdict,’ a standard that is ‘essentially the same as the harmless 

beyond a reasonable doubt standard of Chapman v. California[, 

supra,] 386 U.S. 18, 24.’ ” (People v. Lewis (2008) 

43 Cal.4th 415, 527.) Certainly, there was no reasonable 

possibility that admitting Arnold’s testimony affected the 

penalty verdict because his wife, Sharyn, testified about the 

same incident and identified defendant during her testimony. 

Defendant, too, acknowledged on cross-examination that he 

robbed the Andersens, as well as Yenerall. There was no

reasonable possibility that admitting the testimony of Yenerall, 

Heynen, and Kendrick affected the penalty verdict either, in 

light of the volume of other evidence presented, including the 

details of Willem’s brutal murder, the Christine C., Osburn, 

Carole D., Bridget E., and Steve H. crimes, defendant’s 14 other

convictions, and the victim impact evidence. There was no 

reversible error. 

C. Admission of Victim Impact Evidence 

Regarding Prior Crime

Over the defense’s objection, Bridget E. testified about the 

effects of the June 16, 1992 incident on her health, career, and 

personality. Defendant contends that the trial court erred by 

admitting her testimony because, according to defendant,

admitting victim impact evidence for prior crimes under section 

190.3, factor (b) is improper and unconstitutional. Defendant’s 

argument relies on five out-of-state decisions, a textual 
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126

distinction between section 190.3, factors (a) and (b), and People 

v. Boyde (1988) 46 Cal.3d 212 (Boyde).

We have previously found unpersuasive the five out-ofstate decisions upon which defendant relies. (See People v. 

Davis (2009) 46 Cal.4th 539, 618.) We have also disagreed that 

“the textual distinction between section 190.3, factors (a) and (b) 

compels the conclusion that the electorate intended to preclude 

victim impact testimony and argument relating to violent 

criminal activity other than the capital crime.” (People v. 

Johnson (2016) 62 Cal.4th 600, 647.) In addition, we have 

overruled Boyde, supra, 46 Cal.3d 212 “to the extent it concludes 

that victim impact evidence relating to factor (b) criminal 

activity is inadmissible, and reaffirm[ed] the unbroken line of 

authority beginning with People v. Benson [(1990)]

52 Cal.3d 754, which has approved evidence and prosecutorial 

argument regarding the impact of the defendant’s factor (b) 

crimes on the victims of that criminal activity.” (Johnson, at 

p. 648.) We find no error here. 

D. Admission of Victim Impact Evidence Related 

to Capital Crime

Over defendant’s objection, the trial court admitted victim 

impact evidence related to Willem’s murder consisting of 

testimony from her family members, a short videotape depicting 

her singing, and a photograph of her that resembled how she 

looked around the time of her death. We have previously 

permitted the admission of similar victim impact evidence (see, 

e.g., People v. Brady (2010) 50 Cal.4th 547, 577–579 [admission 

of family member testimony and four-minute videotape 

depicting victim at family celebration]; Vines, supra,

51 Cal.4th at p. 888 [admission of videotape depicting victim 

singing and dancing]), and defendant does not argue that there 
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127

was anything improper about the amount or content of the 

specific victim impact evidence here. Defendant, however,

argues that section 190.3, factor (a) has been improperly 

interpreted by this court to allow victim impact evidence in 

violation of state and federal law and accordingly calls for a 

wholesale reconsideration of existing precedent beginning with

People v. Edwards (1991) 54 Cal.3d 787. We recently rejected 

the same statutory argument in People v. Seumanu (2015) 

61 Cal.4th 1293, 1366–1368. We see no reason to reconsider it 

now and thus find no error here. 

E. Asserted Juror Misconduct

Defendant contends that the trial court erred when it 

declined to discharge Juror No. 12 after he saw newspaper 

headlines about defendant’s competency trial. We disagree. We

conclude that there was no substantial likelihood of juror bias 

and there was no violation of defendant’s federal or state 

constitutional rights. 

1. Background 

After the trial court declared a doubt as to defendant’s 

competency and suspended proceedings, the trial court met 

individually with each of the guilt phase jurors and informed 

them that there was an issue — about which the court could not 

reveal the details — that would cause a significant delay before 

beginning the penalty phase. The court individually 

admonished each of the jurors to avoid discussing or reading 

about the case in the interim. When the court met individually 

with Juror No. 12, the court instructed Juror No. 12, “[P]lease 

don’t discuss what we’ve talked about with any of the other 

jurors. And if there’s anything in the newspaper about this case, 

please don’t read that.” 
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128

Several months later, the guilt phase jurors returned for 

the penalty phase. At the defense’s request, the jurors filled out 

a supplemental questionnaire concerning whether they had

read, heard, or discussed anything about the case since 

rendering the verdict. The first question asked, “Have you read 

anything in a newspaper about this case since rendering your 

verdict on March 18, 1999?” Juror No. 12 checked “yes” in 

response to this question and commented, “I have read the 

headlines, but not the article itself.” Juror No. 12 checked “no”

in response to the remaining two questions, indicating that he 

had not heard anything about the case from any other source or 

discussed the case with any of the other jurors since rendering 

the verdict. 

The trial court and counsel inquired further into Juror No. 

12’s responses. Juror No. 12 explained that he had seen

“[p]robably like two or three” newspaper headlines. Asked

whether he “[j]ust saw the headlines, recognized it was about 

the case, and then didn’t read anything further?” he replied, 

“That’s right.” He said that there was not anything about what 

he had read that caused him to come to any opinions or 

conclusions or that would affect or influence his ultimate 

decision in this case. He acknowledged, however, that from 

these headlines, he knew that a competency trial took place and 

knew its result. Asked about his reaction to this information, 

he responded, “All I knew is that I would be coming back. That’s 

about all I thought about it.” Asked to explain, he said that he 

had assumed he probably would not be returning if the 

competency trial had ended differently because the competency 

trial “was a part of the sentencing or whatever.” He confirmed

that he had not discussed any of this information with anybody 

else. 
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129

The defense moved to excuse and replace Juror No. 12. 

The trial court denied the motion, reasoning that Juror No. 12 

had neither violated the court’s order by seeing the newspaper 

headlines nor formed any opinions or conclusions based on 

them. The trial court found, “The impression I get was that in 

going through the newspaper, naturally in skimming the 

headlines you can see that this is something about the case, and 

at that point he stopped reading and did not read the 

content. . . . I didn’t tell them not to read the papers. I just told 

them not to read anything about the case. I don’t think he 

violated the Court’s order.” The trial court continued, “I didn’t 

get the impression from anything that he said that he had 

formed any opinions or conclusions. In fact, he said he didn’t, 

and that it wouldn’t affect his decision in this case.” 

2. Discussion 

“A defendant accused of a crime has a constitutional right 

to a trial by unbiased, impartial jurors.” (People v. Nesler (1997) 

16 Cal.4th 561, 578 (Nesler).) “Juror misconduct, such as the 

receipt of information about a party or the case that was not part 

of the evidence received at trial, leads to a presumption that the 

defendant was prejudiced thereby and may establish juror bias.” 

(Ibid.) Even a juror’s “inadvertent receipt of information that 

had not been presented in court falls within the general category 

of ‘juror misconduct.’ ” (Id. at p. 579.) 

“[W]hen misconduct involves the receipt of information 

from extraneous sources, the effect of such receipt is judged by 

a review of the entire record, and may be found to be 

nonprejudicial. The verdict will be set aside only if there 

appears a substantial likelihood of juror bias. Such bias can 

appear in two different ways. First, we will find bias if the 
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130

extraneous material, judged objectively, is inherently and 

substantially likely to have influenced the juror. [Citations.] 

Second, we look to the nature of the misconduct and the 

surrounding circumstances to determine whether it is 

substantially likely the juror was actually biased against the 

defendant. [Citation.] The judgment must be set aside if the 

court finds prejudice under either test.” (In re Carpenter (1995) 

9 Cal.4th 634, 653.) “We emphasize that before a unanimous 

verdict is set aside, the likelihood of bias under either test must 

be substantial.” (Id. at p. 654.) “Jurors are not automatons. 

They are imbued with human frailties as well as virtues. If the 

system is to function at all, we must tolerate a certain amount 

of imperfection short of actual bias. To demand theoretical 

perfection from every juror during the course of a trial is 

unrealistic.” (Id. at pp. 654–655.) 

In reviewing the trial court’s ruling, “[w]e accept the trial 

court’s credibility determinations and findings on questions of 

historical fact if supported by substantial evidence. [Citations.] 

Whether prejudice arose from juror misconduct, however, is a 

mixed question of law and fact subject to an appellate court’s 

independent determination.” (Nesler, supra, 16 Cal.4th at 

p. 582.) 

We need not decide whether juror misconduct occurred 

here because, in any event, we find no substantial likelihood of 

juror bias. (See People v. Thomas (2012) 53 Cal.4th 771, 819.) 

The headlines were not so prejudicial in and of themselves that 

they were inherently and substantially likely to have influenced 

a juror during the penalty phase. Although the precise content 

of the headlines is not clear from the record, nothing suggests

that they were inflammatory or biased in their presentation of 

the facts, or that they conveyed additional information about the 
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131

competency trial such as the issues involved, the evidence 

presented, or the testimony heard. The relevance of the 

competency verdict, or its potential for prejudice, was further 

diminished at the penalty phase since the task of jurors at the 

penalty phase was qualitatively different from that at the

competency trial. Learning only that a competency trial took 

place and that defendant was found competent was therefore 

“not akin to a bell that could not be unrung.” (In re Boyette

(2013) 56 Cal.4th 866, 893; id. at p. 892 [contrasting extraneous 

information in case to “a suppressed confession or evidence of 

other crimes that the trial court had excluded as too 

prejudicial”]; cf. People v. Ramos (2004) 34 Cal.4th 494, 520–522 

[newspaper accounts of trial were not inherently prejudicial and 

did not prejudice the verdict].) 

Nor was it substantially likely that Juror No. 12 was 

“actually biased” against defendant. Defendant does not 

contend that Juror No. 12 was actually biased, and nothing in 

the record suggests such bias existed. Mindful of the trial 

court’s admonitions to avoid news coverage of the case, Juror 

No. 12 did not read any newspaper articles about the case but

promptly informed the trial court that he had seen a few 

headlines. He made clear that he did not form any opinions or 

conclusions based on the headlines, nor did he discuss them with 

anyone. His only reaction to the information was that he “would 

be coming back. That’s about all [he] thought about it.” The

trial court found his representations credible, and substantial 

evidence supports this finding. (See People v. Stanley (2006) 

39 Cal.4th 913, 951 [accepting credibility determinations 

regarding juror’s recollection of newspaper article]; see also In 

re Carpenter, supra, 9 Cal.4th at p. 657 [juror not discussing 
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132

information with other jurors tends to negate inference of 

bias].)

33

 

Having found no substantial likelihood of juror bias, we

reject defendant’s assertion that Juror No. 12’s exposure to 

these headlines impeded his ability to fairly weigh defendant’s 

mitigating evidence in violation of his federal constitutional 

rights. Defendant characterizes Caldwell v. Mississippi (1985) 

472 U.S. 320 as instructive. In Caldwell, the high court vacated 

a death judgment where the prosecutor had “urged the jury not 

to view itself as determining whether the defendant would die,

because a death sentence would be reviewed for correctness by 

the State Supreme Court.” (Id. at p. 323.) The high court has 

“since read Caldwell as ‘relevant only to certain types of 

comment[s] — those that mislead the jury as to its role in the 

sentencing process in a way that allows the jury to feel less 

responsible than it should for the sentencing decision.’ ” 

(Romano v. Oklahoma (1994) 512 U.S. 1, 9; see also In re 

Carpenter, supra, 9 Cal.4th at p. 649 [discussing Romano as 

limiting Caldwell].) 

Here, there was no evidence to suggest that Juror No. 12 

was unable to consider defendant’s mitigating evidence or felt 

any less responsible for making a penalty determination after 

seeing these headlines — much less that he was misled to 

believe himself to be so. (See People v. Montes (2014) 

 

33 Defendant asserts that the trial court did not admonish 

Juror No. 12 to disregard the headlines, but the Attorney 

General accurately points out that the court incorporated its 

guilt phase jury instructions into its penalty phase jury 

instructions, including, “You must decide all questions of fact in 

this case from the evidence received in this trial and not from 

any other source.”
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133

58 Cal.4th 809, 896 [even assuming the juror committed 

misconduct by consulting religious passages, “those passages 

did not lessen the juror’s personal sense of responsibility by 

shifting the decision to some other entity”].) We thus conclude 

that the trial court did not err. 

F. Instruction to Alternate Jurors

The trial court excused two of the seated guilt phase jurors 

and replaced them with two alternate jurors before the penalty 

phase began. The court then instructed the jury that “[f]or the 

purposes of this penalty phase of the trial, the alternate jurors 

must accept as having been proved beyond a reasonable doubt 

those guilty verdicts and true findings rendered by the jury in 

the guilt phase of this trial.”34 Defendant objected to having the

two alternate jurors try the penalty phase but did not object to 

this specific instruction. He now contends that this instruction 

violated his federal and state constitutional rights to a fair 

 

34 In full, CALJIC No. 17.51.1 provided as follows: 

“Members of the Jury: [¶] Two jurors have been replaced by 

alternate jurors. [¶] The alternate jurors were present during 

the presentation of all of the evidence, arguments of counsel, 

and reading of instructions, during the guilt phase of the trial. 

However, the alternate jurors did not participate in the jury 

deliberations which resulted in the verdicts and findings 

returned by you to this point. For the purposes of this penalty 

phase of the trial, the alternate jurors must accept as having 

been proved beyond a reasonable doubt, those guilty verdicts 

and true findings rendered by the jury in the guilt phase of this 

trial. Your function now is to determine, along with the other 

jurors, in light of the prior verdict or verdicts, and findings, and 

the evidence and law, what penalty should be imposed. Each of 

you who now compose the jury must participate fully in the 

deliberations, including any review as may be necessary of the 

evidence presented in the guilt phase of the trial.” 
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134

penalty trial, reliable sentencing decision, equal protection, due 

process, and effective assistance of trial counsel. 

Assuming defendant’s claim was not forfeited, it fails on 

the merits. (See § 1259 [preserving claims of instructional error 

affecting substantial rights despite lack of objection below].) We

have made clear that “[a]s a matter of law, the penalty phase 

jury must conclusively accept [the guilt phase jury’s] findings” 

as to the defendant’s guilt and the truth of the special 

circumstance allegations beyond a reasonable doubt. (People v. 

Harrison (2005) 35 Cal.4th 208, 256 (Harrison).) We have also 

rejected the suggestion “that anytime a juror is replaced at the 

penalty phase, the jury should engage in guilt phase 

deliberations anew.” (People v. Maciel (2013) 57 Cal.4th 482, 

548.) And, most notably, in People v. Cain (1995) 10 Cal.4th 1

(Cain), we found no constitutional defect in the trial court 

instructing the jury, including a new juror who replaced an 

excused juror, that it must accept the guilt phase verdicts and 

findings at the penalty phase. (Id. at pp. 64, 66.)

Nor do we find People v. Kaurish (1990) 52 Cal.3d 648, 708

to be inconsistent, as defendant contends. In Kaurish, the 

defendant claimed that a replacement juror should have been 

instructed at the penalty phase that she “was not bound by the 

other jurors’ earlier determination of guilt, but could vote 

against the death penalty if she doubted defendant’s guilt.” 

(Ibid.) We rejected this claim, finding that the replacement 

juror was instructed about considering lingering doubt as a 

mitigating factor, that instruction “made it clear that she could 

vote against the death penalty if she disagreed with the guilt 

phase verdict, and no further instruction was necessary.” (Ibid.) 

This concept of lingering doubt, however, is distinct from and 

consistent with the jury’s obligation to accept the guilt phase 
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135

verdicts and special circumstance findings as proved beyond a 

reasonable doubt at the penalty phase. (Harrison, supra,

35 Cal.4th at p. 256 [jurors may consider lingering doubt as 

mitigating circumstance but cannot relitigate or reconsider 

matters resolved at guilt phase]; Cain, supra, 10 Cal.4th at p. 67 

[same].)35 

In short, we discern no error in the trial court’s 

instructions here. 

VI. OTHER ISSUES

A. Challenge to California’s Death Penalty Law as

Not Adequately Narrowing the Class of 

Death-Penalty Eligible Defendants

Defendant urges that California’s death penalty law

violates the Eighth Amendment because it does not sufficiently 

narrow the class of death-eligible defendants, based on statistics 

drawn primarily from published decisions of this court and the 

Court of Appeal, as well as unpublished decisions of the Court 

of Appeal, First District, between 1988 and 1992. We have 

repeatedly rejected similar statistics-based arguments claiming 

that the multiplicity of the statute’s special circumstances fails 

to sufficiently narrow the class of death-eligible defendants. 

(See, e.g., People v. Beames (2007) 40 Cal.4th 907, 934; People v. 

Vieira (2005) 35 Cal.4th 264, 303–304; People v. Jones (2003) 

30 Cal.4th 1084, 1127–1128.) Defendant offers no persuasive 

reason to reconsider this issue. 

 

35 The trial court in this case gave CALJIC No. 8.85, which 

we have held to sufficiently cover the concept of lingering doubt. 

(See People v. Enraca (2012) 53 Cal.4th 735, 767–768.) 
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B. Other Challenges to California’s Death Penalty 

Law

Defendant raises numerous challenges to California’s 

death penalty law that we have repeatedly rejected and continue 

to reject as follows. 

Section 190.3, factor (i) (the age of the defendant) is not 

unconstitutionally vague. (Tuilaepa v. California (1994) 

512 U.S. 967, 977; People v. Ray (1996) 13 Cal.4th 313, 358.) 

The death penalty statute as construed by this court does not 

fail to perform the narrowing function required by the Eighth 

Amendment. (Schmeck, supra, 37 Cal.4th at p. 304.) “Penal 

Code sections 190.2 and 190.3 are not impermissibly broad, and 

factor (a) of Penal Code section 190.3 does not make imposition 

of the death penalty arbitrary and capricious.” (People v. 

Sánchez (2016) 63 Cal.4th 411, 487.) Other than the penalty 

verdict itself, the jury need not achieve unanimity. (Ibid.) The 

trial court did not “violate defendant’s Fifth, Sixth, Eighth, or 

Fourteenth Amendment rights in failing to instruct the jury 

that it must find beyond a reasonable doubt that the 

aggravating factors outweigh the mitigating factors.” 

(Schmeck, at p. 304.) The trial court’s instructions need not 

delete inapplicable sentencing factors, delineate between 

aggravating and mitigating circumstances, or specify a burden 

of proof either as to aggravation (except for section 190.3, 

factor (b) or (c) evidence) or the penalty decision. (Schmeck, at

p. 305.) “Nor are potentially mitigating factors 

unconstitutionally limited by the adjectives ‘extreme’ and 

‘substantial’ . . . .” (Ibid.) The sentencing factors are not vague 

and ill-defined. (Ibid.) “California’s use of the death penalty 

does not violate international law.” (Sánchez, at p. 488.) 

Allowing the jury that adjudicated the defendant’s guilt to weigh 
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Opinion of the Court by Groban, J.

137

and consider his uncharged crimes in determining the penalty 

is constitutional. (People v. Hawthorne (1992) 4 Cal.4th 43, 77.)

C. Cumulative Prejudice

Defendant contends the combined errors require reversal 

of his convictions and death sentence even if the errors are not

prejudicial when considered individually. We have assumed 

errors but found no prejudice. Considering these assumed 

errors altogether, we conclude that reversal is not warranted. 

VII. DISPOSITION

We affirm the judgment. 

GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.
PEOPLE v. MILES

S086234

Dissenting Opinion by Justice Liu

Defendant Johnny Duane Miles, a black man, was 

sentenced to death for raping and murdering Nancy Willem, a 

white woman. During jury selection, the prosecutor removed 

the first three black jurors available for peremptory challenge. 

Miles objected to the strikes as racially motivated under Batson 

v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler 

(1978) 22 Cal.3d 258. The prosecutor gave reasons for each 

strike, and the trial court rejected Miles’s Batson claim.

At the time of the ruling, the prosecutor had used three of 

his first six peremptory strikes to remove every black juror in 

the jury box who had not been excused for cause. At the end of 

jury selection, no black juror was seated on the main panel. 

Among the six alternate jurors, only one was black. As a result, 

the black defendant in this case, charged with raping and 

murdering a white woman, was tried and convicted by a jury 

that included no black member.

On appeal, Miles challenges the prosecutor’s strikes of two 

black prospective jurors, Kevin C. and Simeon G. I agree that 

Miles has not shown purposeful discrimination with respect to 

the strike of Kevin C. in light of his ambivalent responses 

regarding the death penalty and the two other reasons given for 

his excusal. (Maj. opn., ante, at pp. 37–52.) But the record 

shows that each of the prosecutor’s stated reasons for striking 

Simeon G. was implausible or unsupported by the facts. I would 
PEOPLE v. MILES

Liu, J., dissenting

2

thus conclude “it was more likely than not that the challenge 

was improperly motivated.” (Johnson v. California (2005) 545 

U.S. 162, 170 (Johnson).) Because the “[e]xclusion of even one 

prospective juror for reasons impermissible under Batson and 

Wheeler constitutes structural error,” the judgment must be 

reversed. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 

(Gutierrez).)

I.

Today’s opinion accords deference to the trial court’s 

ruling on the Batson motion, but it is unclear what this court is 

deferring to. “A trial court’s conclusions are entitled to 

deference only when the court made a ‘sincere and reasoned 

effort to evaluate the nondiscriminatory justifications 

offered.’ ” (Gutierrez, supra, 2 Cal.5th at p. 1159.) A “reasoned” 

attempt requires the trial court to “reject [the prosecutor’s] 

reason or ask the prosecutor to explain further” when the reason 

is “not borne out by the record.” (Id. at p. 1172.) Where “the 

prosecutor’s reason[s] for [the contested] strike[s are] not selfevident and the record is void of any explication from the court, 

we cannot find . . . that the court made a reasoned attempt to 

determine whether the justification was a credible one.” (Ibid.)

Here, the trial court expressly acknowledged that the 

prosecutor’s proffered reasons for striking Kevin C. and Simeon 

G. were not self-evident. During discussion of the Batson 

motion, the trial judge told the prosecutor: “I don’t understand 

[the strikes] as to [Kevin C.] and as to [Simeon G.]. You’ll [have 

to] explain those.” After hearing the prosecutor’s reasons, the 

court concluded: “As I indicated, as to [another struck juror], I 

understand [the prosecutor’s] concern there. As to [Kevin C.] 

and [Simeon G.], I think it’s certainly not as obvious, but I 
PEOPLE v. MILES

Liu, J., dissenting

3

cannot say it is not legitimate.” That was the extent of the trial 

court’s explanation for upholding the strikes.

At one point, the court did ask the prosecutor to clarify his 

explanation for striking Simeon G. (Maj. opn., ante, at p. 26 

[“ ‘His answer being that if he had a feeling the defendant was 

not guilty, that was the answer that bothered you?’ ”].) But the 

court did not probe any of the prosecutor’s stated reasons for the 

strikes, even though they were difficult to reconcile with the 

record, as discussed below. Nor did the court explain why it 

credited the prosecutor’s justifications. It merely made a global 

finding that the stated reasons were “valid” and “legitimate.” 

(See maj. opn., ante, at p. 31 [“the trial court could have done 

more to make a fuller record and itself acknowledged it was 

making a somewhat close call”].)

Our requirement of a “ ‘sincere and reasoned effort to 

evaluate the nondiscriminatory justifications offered’ ” 

(Gutierrez, supra, 2 Cal.5th at p. 1159) demands more than 

what is apparent from the record here. I do not doubt that the 

trial court was sincere and listened to the parties’ arguments. 

But because the record does not indicate whether it engaged in 

a reasoned evaluation of the prosecutor’s explanations for the 

strikes, I see no basis for deference to the trial court’s ruling.

II.

In addressing Miles’s Batson claim, our task is to 

determine whether “it was more likely than not” that the 

prosecutor’s strikes were racially motivated. (Johnson, supra, 

545 U.S. at p. 170.) It is important to keep in mind the 

applicable standard of proof. The “more likely than not” 

standard does not require a fact to be established beyond a 

reasonable doubt, nor does it call for “a finding of high 
PEOPLE v. MILES

Liu, J., dissenting

4

probability” as required by the clear and convincing evidence 

standard. (In re Angelia P. (1981) 28 Cal.3d 908, 919.) It 

“ ‘simply requires the trier of fact “to believe that the existence 

of a fact is more probable than its nonexistence.” ’ ” (Id. at 

p. 918.)

“The function of a standard of proof is to instruct the fact 

finder concerning the degree of confidence our society deems 

necessary in the correctness of factual conclusions for a 

particular type of adjudication, to allocate the risk of error 

between the litigants, and to indicate the relative importance 

attached to the ultimate decision.” (Conservatorship of 

Wendland (2001) 26 Cal.4th 519, 546.) In the Batson context, 

the “more likely than not” standard reflects the “inherent 

uncertainty present in inquiries of discriminatory purpose.” 

(Johnson, supra, 545 U.S. at p. 172.) The standard “is not 

designed to elicit a definitive finding of deceit or racism. 

Instead, it defines a level of risk that courts cannot tolerate in 

light of the serious harms that racial discrimination in jury 

selection causes to the defendant, to the excluded juror, and to 

‘public confidence in the fairness of our system of justice.’ ” 

(Gutierrez, supra, 2 Cal.5th at pp. 1182–1183 (conc. opn. of Liu, 

J.), quoting Batson, supra, 476 U.S. at p. 87.) Miles has met this 

standard with respect to the strike of Simeon G.

At the time of jury selection, Simeon G. was a 24-year-old 

forklift driver. He had studied business for three years in 

college and had plans to continue his education in the future. 

Simeon G. had characteristics that might be considered 

favorable to the prosecution. On the questionnaire, he wrote 

that his father was a Drug Enforcement Administration agent 

and that he had considered becoming a police officer. He 

indicated that he “favor[ed] the death penalty” and would have 
PEOPLE v. MILES

Liu, J., dissenting

5

been willing to personally impose it. He believed the purpose of 

the death penalty was “to match the seriousness of a crime with 

a life for a life” and thought it “should be an option” for serious 

crimes. He considered the death penalty law in California to be 

fair and wrote that he would vote to keep the death penalty 

because “it may be an appropriate punishment” in some cases. 

He also indicated that he had no moral, philosophical, or 

religious objections to the death penalty.

The prosecutor gave several reasons for striking Simeon 

G. The first was that Simeon G. “made statements on his 

questionnaire how he likes his opinions over others.”

When asked on the questionnaire whether he would 

describe himself as a leader or a follower, Simeon G. wrote that 

he thought of himself as a “leader” because “I like my opinion 

over other people’s.” In People v. Gutierrez (2002) 28 Cal.4th 

1083, we said that a juror’s comment that “he would not be 

influenced by anyone’s opinion but his own” gave rise to a 

reasonable concern that the juror “would not be able to consider 

the opinions of his fellow jurors.” (Id. at p. 1125.) But Simeon 

G. said that he liked his opinion over other people’s, not that he 

would not consider other people’s views. His statement is 

actually somewhat of a tautology: Everyone likes his or her 

opinion over other people’s; to have an “opinion” is to prefer that 

view to other views. Just because a person favors one view does 

not mean he or she “might have difficulty considering other 

opinions and deliberating with fellow jurors.” (Maj. opn., ante, 

at p. 53.) Indeed, Simeon G.’s other responses on the 

questionnaire indicate that he was interested in working with 

other jurors to reach a verdict. When asked how he felt about 

working with 11 other jurors to make a decision, he wrote: “I 

believe it would be very interesting.” When asked whether he 
PEOPLE v. MILES

Liu, J., dissenting

6

believed the jury system was a fair way to determine a 

defendant’s guilt, he checked “yes” and explained: “12 people 

have to come together to accuse someone. That[’s] 12 different 

opinions. Pretty impressive.”

The prosecutor did not ask Simeon G. about these 

responses, nor did the prosecutor question him or any other 

jurors about their ability to work with others. As the high court 

has observed, “ ‘[t]he State’s failure to engage in any meaningful 

voir dire examination on a subject the State alleges it is 

concerned about is evidence suggesting that the explanation is 

a sham and a pretext for discrimination.’ ” (Miller-El v. Dretke 

(2005) 545 U.S. 231, 246 (Miller-El).) Today’s opinion speculates 

that the prosecutor might have refrained from questioning 

Simeon G. about this topic because “asking Simeon G. during 

voir dire — in front of the other prospective jurors — to elaborate 

on his questionnaire response would have forced him to explain 

why he believes that his opinion is preferable to the opinions of 

other people, such as those seated around him.” (Maj. opn., ante, 

at p. 54.) But I see no reason why such inquiry would have been 

unproductive or more awkward than questioning on the death 

penalty, race relations, or other sensitive yet routine topics that 

call on jurors to explain their views and, at least implicitly, 

disapprove or cast doubt on the views of fellow jurors.

The prosecutor’s explanation is even more suspicious in 

light of the fact that he accepted Juror No. 1, who also described 

herself as a “leader” and wrote, “I like to make my own 

decisions.” Today’s opinion attempts to distinguish “decisions” 

from “opinions” in parsing the responses of Juror No. 1 and 

Simeon G. (Maj. opn., ante, at pp. 54–55.) But the key point is 

that Juror No. 1’s response gave no more indication than 

Simeon G.’s response that she would consider other people’s 
PEOPLE v. MILES

Liu, J., dissenting

7

views in making a decision. Both “opinions” and “decisions” can 

be and often are informed by other people’s points of view, and 

a juror who “likes my opinion over other people’s” seems just as 

likely to consider other people’s views as a juror who “like[s] to 

make my own decisions.” It is true that Simeon G., unlike Juror 

No. 1, indicated that he had not previously served on a jury or 

worked with a group to make a decision. But that was not the 

prosecutor’s stated reason, and in any event, Simeon G.’s other 

questionnaire responses suggested he was interested in and 

willing to do both.

The prosecutor’s second reason for striking Simeon G. was 

that “he made a statement on his questionnaire basically saying 

if I have a feeling he didn’t do it, he’s not guilty. And he had 

crossed out the word doubt, which led me to believe that he 

certainly wasn’t going to base it on evidence.”

When asked on the questionnaire whether he could follow 

the reasonable doubt instruction, Simeon G. checked “yes” and 

wrote: “If I have any doubt feeling that [the defendant] might 

not have done it, he[’s] innocent.” During the Batson hearing, 

the prosecutor noted that Simeon G. originally wrote “doubt” on 

his questionnaire response, then crossed it out and replaced it 

with “feeling.” According to the prosecutor, this suggested that 

Simeon G. would have relied “on a hunch, or a feeling” instead 

of evidence to decide Miles’s guilt. While acknowledging that 

Simeon G. “explained [his questionnaire response] differently in 

court,” the prosecutor said he was “not sure that [Simeon G.’s] 

responses in court should prevail over the answers he gave on 

his questionnaire.” The prosecutor said he was especially 

concerned about those responses in light of the fact that Simeon 

G. “didn’t show up for court” that morning and appeared in the 
PEOPLE v. MILES

Liu, J., dissenting

8

afternoon after being “single-handedly hunted down” by the 

trial judge.

Considering the record as a whole, I do not find the 

prosecutor’s stated concern very plausible. Simeon G. first 

wrote on the questionnaire: “If I have any doubt that [the 

defendant] might not have done it, he[’s] innocent.” On a 

moment’s reflection, it is clear that the double negative makes 

no sense: If a juror had doubt that the defendant might not have 

committed the crime, then the juror’s inclination would be to 

find guilt, not innocence. It is unsurprising that Simeon G., 

most likely recognizing the error, crossed out “doubt” and 

replaced it with a different word, “feeling”: “If I have any feeling 

that [the defendant] might not have done it, he[’s] innocent.” To 

draw an inference that Simeon G. intended this to convey that 

he would rely on his feelings as opposed to evidence to decide the 

defendant’s guilt seems like a stretch.

But even assuming Simeon G.’s response was ambiguous, 

the prosecutor probed this issue during voir dire, and Simeon 

G.’s answers clarified any ambiguity. The prosecutor said: “In 

your questionnaire, you used the phrase that if you have a 

feeling that the defendant was [not] involved, that you’d find 

him not guilty. . . . You’d written ‘doubt’ and crossed out and 

written the word ‘feeling.’ . . . I’m trying to understand what 

you meant by that.” Simeon G. responded: “Well, I think what 

I was trying to say, if I’m correct, is that if the evidence showed 

that there wasn’t — that there was some reasonable doubt, then 

I probably would not accuse him, because of the fact that, myself 

being in the same situation or anybody, I think that if the 

evidence didn’t totally prove that I did it, then there is some 

doubt. . . . So it wasn’t so much a feeling as it was if the evidence 

didn’t show.” The prosecutor asked: “Okay. So you would base 
PEOPLE v. MILES

Liu, J., dissenting

9

it on evidence?” Simeon G. responded: “Basically, yes. I’m 

sorry.” The prosecutor had no further questions on this topic.

Today’s opinion says that when faced with inconsistent 

responses, the prosecutor is not obligated to accept the least 

objectionable one. (Maj. opn., ante, at pp. 57–58.) That is true, 

but it is not the situation here. At voir dire, the prosecutor 

expressly said that his questioning of Simeon G. was intended 

to clarify the “doubt feeling” issue, and Simeon G. — in response 

to an open-ended, non-leading question posed by the prosecutor 

(“I’m trying to understand what you meant by that”) — clarified 

that he would make decisions based on “the evidence,” not a 

“feeling.” His voir dire answers, given under oath, left no 

ambiguity about the issue. The court makes much of Simeon 

G.’s comments that he did not “quite remember” his 

questionnaire response and could not tell the prosecutor “what 

[he] actually meant totally” by it. (Maj. opn., ante, at p. 59.) But 

what those statements show is that he was attempting to be a 

scrupulous juror. When asked to explain the “doubt feeling” 

issue, Simeon G. was careful to qualify that he did not recall his 

exact response on the questionnaire because he did not have a 

copy to review during voir dire. These comments in no way 

undermined Simeon G.’s clear and consistent assertions that he 

would rely on evidence rather than his feelings to reach a 

verdict.

Moreover, the rest of Simeon G.’s questionnaire indicated 

that he would have carefully considered the evidence presented 

in the case. When asked whether he could be a fair and 

impartial juror, he wrote: “I’m open to objectively listening to 

evidence from both sides to decide a fair verdict.” When asked 

if he could follow the instruction that jurors should not draw any 

conclusions from the fact that a defendant does not testify, he 
PEOPLE v. MILES

Liu, J., dissenting

10

checked “yes” and explained that he would “[j]ust deal with the 

facts and other testimonies.” When asked whether he believed 

the testimony of law enforcement officers would be more 

truthful or accurate than civilian testimony, he checked “no” and 

wrote that “[n]obody’s testimony should be more or less due to 

the fact that they are all under oath.” When asked whether he 

would automatically accept the opinion of a psychiatrist or 

psychologist, he checked “no” and explained that “[w]hat they 

say would have to make sense.” All of these responses, like 

Simeon G.’s answers during voir dire, show that he would have 

been a conscientious juror who makes decisions on the basis of 

facts and evidence, not hunches or feelings. The prosecutor’s 

fixation on one questionnaire answer, to the exclusion of all of 

Simeon G.’s other relevant and consistent answers, is 

suspicious.

Today’s opinion says the prosecutor was not required to 

accept Simeon G.’s sworn voir dire responses at face value. At 

the Batson hearing, the prosecutor said “this is an individual 

who the Court personally tracked down this morning. . . . I 

would be concerned about his responses in light of the fact that 

he was single-handedly hunted down to be here this afternoon.” 

In evaluating this statement, today’s opinion explains that 

“[t]he trial court was ‘ “best situated” ’ to assess Simeon G.’s 

responses in court and the prosecutor’s stated concern in light 

of those responses.” (Maj. opn., ante, at p. 60.)

But what exactly is the court deferring to? The trial court 

made no specific findings regarding Simeon G.’s responses or 

demeanor when it denied the Batson motion. Nor did it ask the 

prosecutor to explain why Simeon G.’s tardiness to court would 

cast doubt on the credibility of his voir dire answers. The court 

only asked the prosecutor, “His answer being that if he had a 
PEOPLE v. MILES

Liu, J., dissenting

11

feeling the defendant was not guilty, that was the answer that 

bothered you?” I have no doubt that the trial court “listen[ed] to 

the prosecutor’s explanation and defense counsel’s comments” 

before “accept[ing] the prosecutor’s stated reasons for striking 

Simeon G.” (Maj. opn., ante, at p. 61.) But because its ruling is 

not accompanied by any reasons or analysis, there is nothing to 

defer to.

As to Simeon G.’s tardiness, a bit of context is important. 

The record shows there had been a miscommunication in the 

jury room, which may have caused several jurors not to appear 

in court that morning. After the court called Simeon G.’s 

workplace, he immediately called back and explained that he 

was confused and thought he was supposed to come the next 

day. Simeon G. then appeared in the afternoon for voir dire. 

The prosecutor was aware of this mix-up at the time of the 

Batson hearing, and there was no suggestion that the incident 

resulted from willful conduct by Simeon G. Nor was there 

anything in his background or questionnaire that suggested 

untrustworthiness. To be sure, “having a judge call your 

workplace to locate you and have you come to court is unusual.” 

(Maj. opn., ante, at p. 61, fn. 14.) And it would be natural to 

infer that Simeon G. perhaps felt embarrassed when he 

appeared in court. But it is not clear why the incident would 

have cast doubt on the veracity of Simeon G.’s statement at voir 

dire that he would reach a verdict based on “the evidence” and 

not a “feeling,” especially in light of the consistent responses on 

his juror questionnaire.

The prosecutor’s third reason for striking Simeon G. was 

that “he was not upset by the O.J. Simpson verdict.” Simeon G. 

indicated on the questionnaire that he was not upset by the O.J. 

Simpson verdict but did not explain why. He also wrote that he 
PEOPLE v. MILES

Liu, J., dissenting

12

“really [didn’t] know anything about” DNA evidence. At the 

Batson hearing, the prosecutor said: “If you’ll notice across the 

board, I’ve excused jurors I believe of Hispanic origin and 

Caucasian origin, and the common denominator, essentially, is 

that they were not, were not upset by the O.J. Simpson verdict, 

which was a DNA, circumstantial case. And I think those, those 

raise significant concerns in my mind as a guilt phase juror and 

the type of case that I’m dealing with.”

In evaluating this reason, it must be said at the outset that 

exercising peremptory strikes based on jurors’ attitudes toward 

the O.J. Simpson case — in the capital trial of a black man 

accused of murdering a white woman, occurring just three years 

after the Simpson verdict — seems like playing with fire. At the 

time of Miles’s trial, it would have been hard to think of any 

recent case in the American justice system more sensational and 

racially polarizing than the Simpson trial. (See O.J.: Made in 

America (ESPN Films 2016); Toobin, The Run of His Life: The 

People v. O.J. Simpson (1996).) Amicus curiae NAACP Legal 

Defense & Educational Fund, Inc. (LDF) cites a poll taken in 

1995, when the Simpson case was decided, finding that 22% of 

black Americans and 76% of white Americans believed Simpson 

was guilty of murder. (See De Pinto et al., Poll: Only 27 Percent 

of Americans Think O.J. Simpson Will Regain Celebrity Status

(Sept. 29, 2017) CBS News.) The Attorney General argues that 

the racial disparity was not so significant by the time of Miles’s 

trial and cites a different poll finding that 45% of black 

Americans in 2007 and 57% in 2015 believed Simpson was 

guilty. (See Ross, Two decades later, black and white Americans 

finally agree on O.J. Simpson’s guilt, Wash. Post (Mar. 4, 2016).) 

But the figures cited by LDF are more relevant because jury 

selection in this case occurred in 1998. Those figures are 
PEOPLE v. MILES

Liu, J., dissenting

13

actually corroborated by the poll cited by the Attorney General, 

which shows that 31% of black Americans and 82% of white 

Americans in 1997 thought Simpson was guilty. (See ibid.)

Thus, at the time of Miles’s trial, a practice of striking 

jurors who said they were not upset by the Simpson verdict 

would have resulted in disproportionate removal of black jurors. 

Although such disparate impact “does not turn the prosecutor’s 

actions into a per se violation of the Equal Protection Clause” 

(Hernandez v. New York (1991) 500 U.S. 352, 361), it can be 

considered “evidence that the prosecutor’s stated reason 

constitutes a pretext for racial discrimination” (id. at p. 363). 

There is nothing wrong with probing prospective jurors’ views 

about DNA or circumstantial evidence in a murder trial. But 

surely there are less racially charged ways of doing so.

Also relevant is the fact that the prosecutor did not 

question Simeon G. or any other prospective juror about the 

Simpson verdict during voir dire. (Cf. maj. opn., ante, at p. 63 

[“the credibility of the prosecutor’s concern here is undermined 

to some degree by the prosecutor’s failure to ask Simeon G. or 

other prospective jurors about the O.J. Simpson verdict during 

voir dire”].) The prosecutor’s lack of questioning is especially 

suspicious as to Simeon G. When asked on the questionnaire 

whether he was upset by the Simpson verdict, Simeon G. simply 

checked “no” without explanation. At the Batson hearing, the 

prosecutor said his main concern with this response was that it 

indicated Simeon G. might be skeptical about DNA evidence. 

But the prosecutor never asked Simeon G. whether his response 

to the O.J. Simpson question was related to his views on DNA 

evidence. Nor did he ask Simeon G. or any other prospective 

juror about DNA evidence. 
PEOPLE v. MILES

Liu, J., dissenting

14

Comparative juror analysis also supports an inference of 

pretext. (Cf. maj. opn., ante, at p. 65 [“We find that the 

credibility of the prosecutor’s concern regarding Simeon G.’s 

opinion on the O.J. Simpson verdict is undermined to some 

degree by defendant’s comparative juror analysis.”].) Like 

Simeon G., eight seated and alternate jurors indicated that they 

were not upset about the O.J. Simpson verdict. Some of those 

jurors provided explanations that might have been more 

acceptable to the prosecutor. But Alternate Juror No. 5, like

Simeon G., did not explain why he was not upset about the 

verdict. Juror No. 4, Juror No. 7, and Alternate Juror No. 4 

wrote that they were not upset because they did not know 

enough about the details of the case, which seems just as neutral 

as Simeon G.’s response. Juror No. 6 wrote that the “evidence 

[was] not clear” in the O.J. Simpson case, which if anything 

seems less favorable to the prosecution than Simeon G.’s 

response. In sum, the plausibility of the prosecutor’s 

explanation “is severely undercut by [his] failure to object to 

other [jurors] who expressed views much like [Simeon 

G.’s]. . . . The fact that [the prosecutor’s] reason also applied to 

these other [jurors], most of them white, none of them struck, is 

evidence of pretext.” (Miller-El, supra, 545 U.S. at p. 248.)

Today’s opinion finds these comparisons “relevant and 

probative” but ultimately downplays their importance by 

pointing out differences between the comparator jurors and 

Simeon G. (Maj. opn., ante, at p. 65.) The court notes that Juror 

No. 6 and Alternate Juror No. 5, while similar to Simeon G. on 

the O.J. Simpson question, did not indicate that they might have 

difficulty considering other people’s opinions or that they might 

rely on their feelings to reach a verdict. (Maj. opn., ante, at 

pp. 65–66.)
PEOPLE v. MILES

Liu, J., dissenting

15

This line of reasoning — undercutting the probative value 

of juror comparisons by identifying other traits on which the 

jurors differed — is a frequent maneuver in our Batson

jurisprudence. (See, e.g., maj. opn., ante, at pp. 55–56; People v. 

Hardy (2018) 5 Cal.5th 56, 83 (Hardy); People v. Winbush (2017) 

2 Cal.5th 402, 443–446; People v. Chism (2014) 58 Cal.4th 1266, 

1318–1322.) To be sure, the issue of how similar two jurors must 

be to yield a probative comparison is not reducible to a simple 

formula. But this court’s approach of changing the relevant 

point of comparison for each of the prosecutor’s stated reasons 

cannot be the right one. The court’s reasoning suggests that 

significant weight cannot be assigned to comparative juror 

analysis unless an accepted juror matches the struck juror with 

respect to all of the prosecutor’s stated concerns. Indeed, despite 

statements to the contrary, that seems to be what the court 

actually holds in this case. (Maj. opn., ante, at pp. 55–56, 65–

66.)

But the high court has expressly rejected this view. (See 

Miller-El, supra, 545 U.S. at p. 247, fn. 6 [“None of our cases 

announces a rule that no comparison is probative unless the 

situation of the individuals compared is identical in all respects, 

and there is no reason to accept one. . . . A per se rule that a 

defendant cannot win a Batson claim unless there is an exactly 

identical white juror would leave Batson inoperable; potential 

jurors are not products of a set of cookie cutters.”].) In several 

cases addressing Batson claims, “[t]he high court has repeatedly 

drawn inferences of discrimination from comparative juror 

analysis without regard to whether the comparator jurors 

matched the struck juror in every respect identified by the 

prosecutor.” (Hardy, supra, 5 Cal.5th at p. 119 (dis. opn. of Liu, 

J.) [citing cases].)
PEOPLE v. MILES

Liu, J., dissenting

16

In Miller-El, for example, the prosecution gave three 

reasons for striking a prospective black juror: he was 

ambivalent about the death penalty, his brother-in-law had a 

prior conviction, and the prosecution still had 10 peremptory 

challenges left and could be liberal in using them. (Miller-El, 

supra, 545 U.S. at pp. 247–250.) The high court first compared 

the death penalty views of the struck juror to those of three 

accepted jurors. (Id. at p. 248.) It found the similarities among 

the jurors’ views to be probative (ibid.), even though the 

dissenting justices noted that the accepted jurors were not 

similarly situated to the struck juror with respect to the other 

reasons given by the prosecutor (id. at p. 290 (dis. opn. of 

Thomas, J.)). The high court then conducted comparative juror 

analysis with respect to the other two stated reasons, again 

considering each reason separately. (Id. at pp. 249–250.) In 

subsequent Batson decisions, the high court has consistently 

followed this approach to comparative juror analysis. (See 

Flowers v. Mississippi (2019) 588 U.S. __, __ [139 S.Ct. 2228, 

2248–2249]; Foster v. Chatman (2016) 578 U.S. __, __ [136 S.Ct. 

1737, 1750–1754]; Snyder v. Louisiana (2008) 552 U.S. 472, 

483–484.) All of these decisions found single-issue comparisons 

among jurors to be highly probative of discrimination; none used 

the pivoting frames of comparisons that this court employs to 

mitigate inferences of pretext.

Today’s opinion says “[t]he fact that the high court found 

single-issue comparisons to be highly probative of 

discrimination within the circumstances of a particular case is 

not inconsistent with our analysis here, which . . . recognizes 

that such comparisons are relevant but ultimately concludes, 

within all of the relevant circumstances, that substantial 

evidence supports the trial court’s denial of defendant’s 
PEOPLE v. MILES

Liu, J., dissenting

17

Batson/Wheeler motion.” (Maj. opn., ante, at p. 36, fn. 9.) But 

that assertion begs the crucial question: What is it about “the 

circumstances” of Flowers, Foster, Snyder, and Miller-El that 

makes single-issue comparisons highly probative in all of those 

cases, but not in the case before us? The court does not say —

and thus leaves unexplained how its approach can be reconciled 

with high court precedent. (See Hardy, supra, 5 Cal.5th at 

p. 119 (dis. opn. of Liu, J.).)

III.

With today’s decision, this court extends its record of not 

having found Batson error involving the peremptory strike of a 

black juror in more than 30 years — 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.’ ” 

(Hardy, supra, 5 Cal.5th at p. 124 (dis. opn. of Liu, J.), 

quoting Batson, supra, 476 U.S. at p. 85; see People v. Johnson

(2019) 8 Cal.5th 475, 534–536 (dis. opn. of Liu, J.).)

Like this case, several of our recent cases had “definite 

racial overtones” that “ ‘raise[] heightened concerns about 

whether the prosecutor’s challenge was racially motivated.’ ” 

(Hardy, supra, 5 Cal.5th at p. 78 [black man convicted of raping 

and murdering a white woman]; see People v. Armstrong (2019) 

6 Cal.5th 735, 765 [same]; People v. Harris (2013) 57 Cal.4th 

804, 863 (conc. opn. of Liu, J.) [same]; People v. Johnson, supra, 

8 Cal.5th at p. 507 [black man convicted of murdering a white 

man and raping a white woman].) Like this case, some of our 

recent cases involved peremptory strikes that resulted in no 

black jurors serving on the main panel. (See Hardy, at p. 78; 
PEOPLE v. MILES

Liu, J., dissenting

18

People v. Rhoades (2019) 8 Cal.5th 393, 456 (dis. opn. of Liu, J.); 

see also People v. Bryant (2019) 40 Cal.App.5th 525, 535.) And 

like this case, our recent cases have upheld quite tenuous or 

implausible explanations for the removal of black jurors. It is 

past time to ask whether the Batson framework, as applied by 

this court, must be rethought in order to fulfill the constitutional 

mandate of eliminating racial discrimination in jury selection. 

(See Bryant, at p. 544 (conc. opn. of Humes, J.) [highlighting 

“the serious shortcomings with the Batson framework” as 

interpreted by this court and “calling for meaningful reform”].)

Here, the prosecutor’s reasons for striking Simeon G. do 

not withstand scrutiny. Although I cannot be certain that the 

prosecutor struck Simeon G. because of his race, certainty is not 

the standard. Considering all relevant circumstances, I believe 

it was more likely than not that the strike was improperly 

motivated. Because the trial court erred in denying Miles’s 

Batson claim, his convictions must be reversed.

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Miles

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding 

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S086234

Date Filed: May 28, 2020

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: James A. Edwards

__________________________________________________________________________________

Counsel:

Cliff Gardner and Catherine A. White, under appointments by the Supreme Court, for Defendant and 

Appellant.

Sherrilyn A. Ifill, Samuel Spital, Kristen A. Johnson, Christopher Kemmitt and Daniel S. Harawa for 

NAACP Legal Defense & Educational Fund, Inc., as Amicus Curiae on behalf of Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Ronald A. Jakob and Seth M. 

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Cliff Gardner

1448 San Pablo Avenue

Berkeley, CA 94702

(510) 524-1093

Christopher Kemmitt

NAACP Legal Defense & Educational Fund, Inc.

700 14th Street, NW, Suite 600

Washington, DC 20011

(202) 682-1300

Seth M. Friedman

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 645-3199