## 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 v iolence 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.
F ollowin g the penalty phase , t he 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. F ACTUAL B ACKGROUND
A. Guilt Phase

1. Prosecution Case

This case arises from three separate inciden ts 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 Carol e 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 Sch utz, started calling t he clinic, but t he clinic’s phone lines were busy

. When Schutz was not able to reach Willem, Schutz drove to the clinic. After entering the buildin g 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 w rist and a sweater wrapped a round
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 exten sive. 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 caus ed by the application of
substantial and multiple instances of force while Willem was
still alive

. Willem a lso 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 e vidence

Several witnesses testified regarding the collection and analysis of blood and other bodily fluids found at the crime

scene. In particular, t wo criminalists from the San Bernardino County Sheriff’s Crime Laboratory, David Stockwell and Donald Jones, testified concerning th eir analysis

. Stockwell testified that he conducted a se rological 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 who se 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

- AmericanPEOPLE 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

recover ed 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 D NA profile from the
crime scene

. He testified that the DNA profile from the crime
scene woul d 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 e vidence

On the night of Willem’s death, her ATM card was used to withdraw $1,16 0 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 a n individual wearing glasses and a “Red Dragon” hat
at the time of the transaction in Glendora . The individual’s
features could not be d iscerned 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, t he 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

exa mined the note found on Willem’s body and certain inmatePEOPLE v. MILES Opinion of the Court by Groban, J.

5 forms written by defendant

. He concl uded 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 w hen defendant was served with a court order requiring him to provide a handwriting e xemplar, 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 ].” Th e 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 f orced 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
han dgun. 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, h e directed her into a
conference room

, tied her arms behind her back with a telephone cord, and took h er jewelry

. When she looked at him, h e 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. H e 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

. H e penetrated her vagina from behind, initially with his fingers a nd then with
his penis. He ejaculated on her thigh s 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 h e 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, t he semen profile from the Christine C. crime scene matched the profile from the Willem crime scene and additionally matched
defendant ’s genetic markers. Criminal ist 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 & Carol e 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 s ilver 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 h e 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 defe ndant was getting ready to leave , O sburn’s next client, Carol e D. , walked
into th e 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 whe ther 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 Carol e D ., and b ecause 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 Carol e D. was taken to the hospital for a medical examination. The examining
nurse testified that Carol e 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 Laborator y analyzed semen found on Carol e 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 t he detectable genetic markers from the sample

mat ched the semen profile s 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 h e 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, t he 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 an y autopsy whether a deceased individual was t ortured

. Second, t he defense called Dr. Jonathan Koehler

, a research
metho dology expert , who testified regarding errors and probability statistics in DNA analysis. For the third witness

, t he defense called one of t he investigating detectives, Detective
C hester 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 residence s 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 “RedPEOPLE v. MILES Opinion of the Court by Groban, J.

9 Dragon” hat

, bu t 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 [s ee p t

. IV

. , post ]. ) Once defendant
was found competent to stand tria l, t he 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 i ncident 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 th e office

. H e was wearing a stocking cap, jacket, and gloves and appeared “very calm

. ” He pointed a chr ome, 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 a t 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 i ncident 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 a nd wearing a brown
b eanie, j acket, 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 s he gave him some cash, he briefly went into a back off ice for a couple o f minutes and

, once he returned, told her to not call th e police and left.

iii. February 19, 1992 i ncident

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.
Po inting a small chrome handgun at Kendrick , defendant demanded money. Kendrick and the Crawfords gave defendant
several hundred dollars in cash

, while d efendant repeatedly
said

, “Don’t look at me, man

. ” Defendant then instructed them not to call the polic e for 30 minutes, and he left

.

iv. February 21, 1992 i ncident

Arnold and Sharyn Anders e n 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 cla rity, 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 of fice, pointing a small chrome, automatic gun at them

. Defendant appeared calm and was wearing a beanie. He demanded money and told the Anderse ns 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

, a fter Arnold went into his office to look for more money, defendant
took a mon ey 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

. S he 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 fac e

. 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 he ad,
defendant ordered Bridget E. to orally copulate Steve H

. She told him that she was pregnant and asked him not to hu rt 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 co pulate
Steve H

. She could not recall whether she was tied up at that
time. Defendant then penetrated Bridget E.’s vagina, initially with his fing ers and then with his penis. Once he stopped, he told her to continue copulating Steve H

. She rec ounted that herPEOPLE 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 c riminal c onvictions At the prosecution’s request, the trial cour t 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 i mpact t estimony
The prosecution ’s penalty phase evidence also include d 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 offere d 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 busines s

. 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 t estimony 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 ha ppened at the time of the
crime

. ”

He then testified that ever since undergoing f oot s urgery when he was a teenager , he suffered from hallucinations and “ill angels,” which controlled his actions

. H e said that he suffered from these “ill angels ” at the time of Willem’s death

. As to her death, h e said that “ [ t ] here was one rape ” and a beating of her head with an object, but there was no strangulation. He said
that a fter h e took her money and bank information , he raped
her because the voices in his hea d told him that she wanted it

. He described that the voices then grew l ouder a nd

, in order to stop the m , he beat, kick ed, 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 tha t 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 robberi es,” andPEOPLE v. MILES Opinion of the Court by Groban, J.

14 b. Evidence regarding defendant’s mental health

Much of t he defense’s penalty phase evidence concerned
defendant ’s mental health. C linical psy chologist Dr. Joseph
Lantz testified that defendant’s intelligence fell within the borderline range

, between mental deficiency and low

- average , and in his opinion, defendant suffer ed 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. Ern ie Met h 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. Met h testified that based on this scan, defendant ’s brain exhibited abnor malities 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 an d
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 wo rked 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 tw o additional witnesses. First, Deputy Jonathan Billings testifiedPEOPLE 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. Raj esh Patel
testified that when defendant claimed to be suicidal in jail, Dr.
Patel examined him and concluded that he was malingering
mental illness.

II

. P RETRIAL I SSUES
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 peremp tory challenges , defendant argues,

warrant s 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 p eremptory challenges in light of th e se 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 pros pective jurors on their views regarding the death penalty pursuant to People v. Hovey (1988) 44 Cal.3d 543. Once Hovey q uestioning concluded , and the trial court excused prospective jurors for cause or by stipulation

, 72 prospective jurors remained. T he trial court called the first 12 prospectivePEOPLE v. MILES Opinion of the Court by Groban, J.

17 jurors to the main panel. The y included three African

- American juror s, three Hispanic jurors, five W hite jurors, and one “American Indian / Caucasian” juror.
The parties then commenced general voir dire. A fter the defense challenged an African

- American prospective juror for

cause an d that prospective juror was replaced , t he prosecut or proceeded to exercise peremptor y strikes against Malinda M. (a Hispanic woman), Kevin C. (an African

- American man),
Michelle G . (a W hite woman), Simeon G. (an African

- American man), and Ronald W. (a W hite man). After the prosecutor twice

pass ed on exercising any peremptory strikes and the defense
exercis ed 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 t o 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 prosecut or to explain the basis for striking Kevin C. and Simeon G. A fter 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

ca nnot 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 T he prosecutor twice passed on exercising any peremptory strikes , and the defense exercised four peremptory strikes. The prosecutor then exercised a perem ptory strike against Mary B. (an African

- American woman). At t his 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 prosecut or had exercised his

peremp tory strikes to compose an all

- W hite jury panel. The
trial court denied the motion , finding that Mary B.’s
reservations about the death penalty justified the strike.

After t he prosecut or 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 W hite 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 W hite woman). T he sworn alternate jurors included

one African

- American and five W hite individual s

. Before the penalty phase of the trial, the African

- Amer ican alternate juror replaced an excused juror and served on the jury.
On appeal, defendant renews his challenge to the

pr o secuto r ’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 J

uror 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 enfo rcement positi ons. His former spouse
was a correctional officer.
In his questionnaire, h e revealed a degree of skepticism regardin g 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 a sked how his jury service experience affected his views on the court system, h e 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 w hen 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 go od 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, h e said

, “watch [ed] s everal days of the O.J. Simpson trial taught me [a lot] about law ” in response to whether he ha d read about, watched, or listened to any testimony regarding DNA evidence. Asked about his opinion on using DNA evidence in criminalPEOPLE v. MILES Opinion of the Court by Groban, J.

20 cases , he said

, “I think i t’s like a polygraph not a for sure
certain.”

His questionnaire responses also suggested some hesitanc y about the death penalty. Asked his opinion on it

, he said, “there are members of soci ety who do bad things and don [’ t ] deserve to be here, can I kill them? unkno wn 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
abol ish 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 kno w 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.” H e identified himself as belonging to Group 3, which wa s defined as “I neither favor nor oppose the death penalty

. ” H e 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. B ut 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, t he 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 m eans 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 mit igating 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 pro blem 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 parti es asked a series of questions to the jurors as aPEOPLE v. MILES Opinion of the Court by Groban, J.

22 group. Neither the prosecutor nor the defense ask ed Kevin C.

any individual questions during general voir dire

. Following defendant’s Batson/Wheeler objection , t he prosecutor stated his reas ons 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 dec ide who is in society, but

not [wh o’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 thi nk, I mean those are essentially the reasons that I’m stating.” T he court found that the prosecutor’s reasons for striking Kevin C. were legitimate and
valid.

b. Prospective J uror 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 D EA

. In his questionnaire, he descri bed 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 grou p of people to make a decision , although he believed “it would be very interesting” to work wit h other jurors to reachPEOPLE 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 t hat testimony by law enforcement
officers w ould be more truthful or accurate than testimony by
civilian s ; he would not automatically accept the opinion of a psychiatrist or psychologist; and he could follow an instruction
that if a defendant does not testi fy, 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 verd ict (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 onPEOPLE v. MILES Opinion of the Court by Groban, J.

24 trying to locate these missing prospective jurors. The prosecutor obj ected 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.”
I t 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 a nd 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 goin g 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 b eyond 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 wi th 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

— [SimeonPEOPLE 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 t rying 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 wou ld be not guilty?” Simeon G. replied, “Well, I think what I was trying to say, if I’m correct, is that if the evid ence 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 w hat 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

c larify 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 ind ividual 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 d own 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, t he 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 go ing 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, d efense counsel stated that Simeon G. misunderstood whether “he was supposed to be here today or t omorrow” 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 circums tances. [¶] 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 unde rstand 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 i n 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 o f falling through means we start all over again.”PEOPLE v. MILES Opinion of the Court by Groban, J.

28 2. Discussion

a. Applicable l aw
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 p p. 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 expla nation 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 iss ue 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 wh ether the proffered rationale hasPEOPLE 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 i n which a prosecutor’s race

- neutral reason for exercising a peremptory challenge is being acc epted 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 cour t 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, exami ning only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exe rcising 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 reas oned 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 ).)PEOPLE v. MILES Opinion of the Court by Groban, J.

30 D efe ndant , 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 co urt 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. Sim pson 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 [“ Hi s answer being that if he had a feeling the defendant was not guilty, that was the answer that bothered you?”].) A nd 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. 11 69.)
The dissent asserts that the trial court here “expre ssly acknowledged that the prosecutor’s proffered reasons for striking Kevin C. and Simeon G. were not self

- evident.” (Dis.PEOPLE v. MILES 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 just ify 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, howev er, 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 star t 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 co nclude 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.” Rathe r, 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 .)PEOPLE v. MILES 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 j uror a nalysis “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 i s 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 d efendant 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.] Wh en 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, “ ‘aPEOPLE v. MILES 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 ra cial discrimination will persist in the criminal justice system.”

D efendant’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 prosec ution 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
tha t, 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 Miller

El ’s stand or fall principle because it is simply the flip side of t he 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 isPEOPLE v. MILES Opinion of the Court by Groban, J.

34 inconsistent with Snyder v. Louisiana (2008) 552 U.S. 472 ( Snyde r ) 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 o f 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 ac tually 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. 36 5
, quoting Miller

- El, supra , 545 U.S. at p. 252.) However, we have rejected the further argument that
in conduc t ing 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 cha llenged.” ( I bid .)
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 aPEOPLE 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 th ese 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. “ I f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise

similar nonblack who is perm itted 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 th e prosecutor’s
stated reasons is relevant , but not necessarily dispositive, on the issue of purposeful discrimination

. ( See i d

. at p. 247
, fn. 6 [“ The
dissent conten ds 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 thePEOPLE 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 d esirable. 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 em phasizes 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 circumstant ial 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, P eople 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 exer cising 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.4t h 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 J

uror 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 a bout which the attorneyPEOPLE 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 pret extual . ( 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 peremptor y 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] meani ng.” ( 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 o r 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 thatPEOPLE v. MILES Opinion of the Court by Groban, J.

39 both the prosecutor and the d efense 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 d ire. 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 c onfusion 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 prospec tive 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 ques tioning, 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 responde d 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 questi ons 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, t he 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.” T he 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 (Juror s Nos. 10 and 11 and Alternate Juror s Nos. 1, 4, and 5) expressed similar reservations about DNA evidence yet wer e neither questioned n or 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, “s hould 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 re plied, “No opinion

. ” In addition, although Alte rnate Juror No. 5 replied, “It [’] s ok but shouldn’t be only evidence used” and stated elsewhere, “ seems it could bePEOPLE v. MILES Opinion of the Court by Groban, J.

41 accurate
, ” th is response merely emphasize d his preference to
consider all evidence

, a concept that he repeated elsewhere in
his questionnaire. Lastly, Juror No. 11 respo n ded, “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.”
T hus , the prosecutor “could plausibly have distinguished”

among these views regarding DNA evidence in deciding t o 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 re garding 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 p eremptory challenge] ; People v. Garcia (2011) 52 Cal.4th 706, 7 49 [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 p enalty 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. HePEOPLE v. MILES Opinion of the Court by Groban, J.

42 wrote, “there are members of s ociety 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
Christ ian 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 religi ous 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 support s the prosecutor’s stated concern. (See Lomax

, supra , 4 9 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 suff icient 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 Juror s Nos. 2, 5, 6, 8, and 9 and
Alternate Juror s Nos. 1 and 4, whom the prosecutor did not
strike. Unlike Kevin C., n one 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 o bserved [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 o ther juror had expressed such a strongly held view”].)
Instead, m ost of the se 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] de ath 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 stat e 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 reluctan t 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 wa s fair and would not be reluctant to vote for a death sentence, sign the verdict form, or state the verdict in court.

S ome 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 , s he , too, said that she would vote to keep the death penalty, that it was fair and used too seldom, and that
sh e 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 s aid 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 deat h 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 imprisonmen t as a more suitable punishment. B ut
, asked whether this v iew 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 t hat 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 circumstance s

. By contrast, among Kevin C.’s tentative and vacillating respons es 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 int o question the fundamentalPEOPLE 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, J uror No. 2 stated

, “I am no t 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 defenda nt 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, c o mparing 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
pretex t ual.
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 solelyPEOPLE 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 exactl y identical juror to prove purposeful discrimination . ( See ante , at p p

. 3 5

– 3 7 .) 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 [ betwee n 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 beli eve 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 p p. 851

– 8 52 ; 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. LD F refers to studiesPEOPLE 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, doe s 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 prosecut or ’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

, a t 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.” ( I d

. at p. 18

. )

We a ssum e 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 merelyPEOPLE 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 ha d formed opinions
about that case

. The prosecutor specificall y 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, w hile 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 quest ioning 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, wi th the O.J. Simpson case.”

In addition

, the prosecutor struck several non

- African

American 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 prospectivePEOPLE 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 so me 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 e vidence and come to agreement;” Richard L. (a Hispanic man) was not upset w ith 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 Afr ican

- 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” whe n 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 sh e 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, c omparing
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, w hile
Juror No. 6 checked “ no ” to the same que stion but commented, “evidence not clea r , ” Juror No. 6’s response w as more measured
than and dissimilar to Kevin C.’s response. (See Vines

, supra , 51 Cal.4th at p. 851 [ respo nses by two prospective jurors “dissimilar” where one said, “ the Simpson trial ‘res tored’ 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 “bias es ” into the
result

. In short

, each of the prosecutor’s reasons is supported by
the record

, and considered together, they provide ample

, nonbiased grou nds for striking Kevin C. Substantial evidence
therefore supports the trial court’s conclusion that the prosecutor struck Kevin C. for reasons other than his r ace.

c. Prospective J

uror 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’sPEOPLE 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

, s upra , 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 pe ople’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 expla in why he would describe himself as a “leade r” rather than
a “follower.” Th e 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 un reasonable for the prosecutor to ascribe some significance to Simeon G.’s response.
That said, w e 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 reasonsPEOPLE v. MILES Opinion of the Court by Groban, J.

54 were pret extual. (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 a nd 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 refra in 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 circ umstances, w e find that t h e 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

pros ecutor’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 w as 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

. Juror s 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 makePEOPLE v. MILES Opinion of the Court by Groban, J.

55 her “own decisions” did not call into question her openness to consider ing other opinions before ret urning 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
“substantiall y distinguishe[d] him from [ the two challenged prospective jurors]”] ; Vines

, supra , 5 1 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 n ot 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. U nlike Simeon G., Juror

12 In his reply b rief, 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 distinguishab le 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 d id not suggest that she might rely on her feelings in reaching a verdict in the guilt phase

. As to the second re ason for striking Simeon G. , the prosecutor expressed concern that Simeon G. might rely on hunches or feelings, rather than evidence , in reac hing 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 coul d 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 t his 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 neg ative, 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, thePEOPLE v. MILES Opinion of the Court by Groban, J.

57 defendant was innocent. T he word “feeling” is ordinarily used

to mean “[a]n idea, belief, or sense (especially a vague or irrational one) that a particular t hing 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 intuitio n 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 de fendant “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 prosecuto r’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 spec ifically 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] ambig uous 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 prospecti ve 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 d oubt 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 t he 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 th e paper to look at what I actually meant totally.”

R eviewing 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 du ring voir dire that, from the prosecutor’sPEOPLE 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 ques tionnaire 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 rel y “on a hunch, or a feeling, which was, as the presenter of evidence, [the prosecutor] was powerless to overcome.” Thus, r eviewing this colloquy in the appellate record

— unaided by Simeon G.’s tone
or demeanor

— we do not conclude that Simeon G.’s respon ses “left no ambiguity” and necessarily mollified any prosecutorial concern about his questionnaire response. (Dis. opn., post , at

p. 9.)
Moreover, w hen 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 . T he 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 prevai l over the answers he gave on his questionnaire

. ” The dissent seems to contend that the prosecutor was obliged to abandon his concern about SimeonPEOPLE 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. 85 0 [“That [the prospective juror] stated on voir dire that he could consider both penalties, and thus
demonstra ted 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 de termine 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 gavePEOPLE 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 af ter 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 de termine 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.] fo r those reasons, not because of [his] race.” ( Smith

, supra , 4 Cal.5th at p. 1161.)

We find that t he 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 assessmen t 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 “ ye s ”
and wrote , “Try to follow instructions.” Reading this statement to suggest that she could not or would not follow the instruction
is strained

, and w e decline to do so

. The record therefore provides no adequate basis to overturn the trial court’s ruling.

For the final r eason , the prosecut or said that Simeon G. (l ike Kevin C. ) was not up set 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 t hat 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 w e 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 becaus e the prosecutor considered Simpson’s case to be similar to defendant’s case given that both cases relied on DNA
evidence and circumstantial evidence

. A l s o as discussed, it appears that the prosecutor was not alone in considering Simpson’s case to be simi lar 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, f our of the five non

African

- American prospective juro rs whom the prosecutor struck were not upset by the O.J. Simpson verdict, suggesting that the prosecutor’s concern was sincere and not merely aPEOPLE v. MILES Opinion of the Court by Groban, J.

63 pretext for striking African

- American prospective jurors. (See

ante , at pp. 50

– 5 1 .)
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 verdi ct 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 othe r 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 f or 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 notPEOPLE v. MILES Opinion of the Court by Groban, J.

64 what the record shows at all” beca use 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 p rospective juror and a Caucasian prospective juror, who were not upset by the O.J. Simpson verdict. A nd a t the time of the statement, the prosecutor indeed had struck t hree non

- African

- American prospective jurors, two of whom

— Malinda M. (a Hispanic

woma n) and Ronald W. (a White man)

— were not upset by the Simpson verdict.
Nevertheless, d efendant’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

w ith 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 not e 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 jurorPEOPLE 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.” W e 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 discrimina tion to be considered at Batson ’s third step”].)

W e 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. 3 5

– 3 7 .) 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 i ndicated 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 self

assuredness, 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 re asonable
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 adequ ate 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 tog ether 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 s ubstantial 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
defen dant 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 re ason. 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, t he prosecutor’s acceptance of an alternate juror who was
African

- American further su pports the prosecutor’s good faith in exercising the peremptory strikes . (See , e.g., Jones

, supra , 51 Cal.4th at p p. 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 determ ination 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

c ause 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
confiden ce, and demeanor), gleans valuable information that simply does not appear on the reco rd. ’ ” ’ ” ( Id

. at p. 358.)PEOPLE v. MILES 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 contend s that deferring to the trial court’s findings o n 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

– 1 47 . But
Greene held that the Supreme Court of Georgia was mistaken when it believed itself bound by Witt ’s standard of review: I t 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.” ( Green e , 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 th e point

. ” ( People v. Farnam (2002) 28 Cal.4th 107, 132
, f n. 6 .)
Second, defenda nt 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 perfo rmance of his duties as a juror.” ’ ” ( People v. Schmeck (2005) 3 7 Cal.4th 240, 2 63 ( 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)PEOPLE v. MILES Opinion of the Court by Groban, J.

69 37 Cal.4th 1, 15 (

Moon ) .) “ ‘Furthermore, the high court has more recently reiterated its vi ew 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 merit less

.

1. Prospective Juror No. 44 Prospective Juror No. 44’s (Number 44) r esponses to the approximately 3 1

- 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 imprisonmen t 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 abo lish it. S he 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 e very case.”
She said that her feelings about the death penalty were
not such that she “would ref use 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 s he 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 aPEOPLE v. MILES Opinion of the Court by Groban, J.

70 death sentence, to sign the verdict form for a death sentence, or

to state t hat 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 t he 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.”

D uring Hovey questioning , the prosecutor asked whether
her identification as belo nging 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

. ” S he r esponded, “ 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. ” T he prosecutor then explained that in the penalty phase, the court will provide an instruction listing mitigating and aggravating factors to consider and “essentiall y if you find the aggravating factors outweigh the mitigating factors, then death is the appropriate verdict, if you find that

. ” T he 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?”
S he 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 ther e have been too many times that I’ve said I’d never do this, or I’d always do that,PEOPLE v. MILES 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 situatio n, 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 f or death?” S he 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.”

D efense 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
i n 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 thin k there’s something else that might interfere with your ability to do that?” S he 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 c ould follow the law. There’s

— I’m

— there’s j ust 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. T he 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 justPEOPLE v. MILES Opinion of the Court by Groban, J.

72 says she doesn’t know , because it’s such an emotional issue

. ” Citing two cases, t he prosecutor argued that jurors who insist they do not know or cannot say if they could impose a death

sentence are properly excused. D efense 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 de finite answer

, ” and took the challenge under submission.
Later, a fter reviewing the record and the authority cited by the prosecutor

, t he trial court found

, “[M]y memory is
refreshed that her answers basically were that she could not say
whether she wou ld 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 go t

— she heard the evidence and the law. But in any situation, basical ly, she didn’t know until she was put in that situation whether she could do it, or whether she could follow
the Cou rt’s instructions in this area.

. . . I w ould 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 vo te 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.PEOPLE v. MILES 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

as ked 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 t o 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 ins tructions 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 f ound the juror wasPEOPLE 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 sh all be informed that a sentence of life impri sonment 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 o n 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.) Mo reover, u nlike 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.PEOPLE v. MILES Opinion of the Court by Groban, J.

75 Defendant additionally compares Number 44 to Juror
Bounds in the high court’s Gray opinion. “ A lthough 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 discussi on, t he 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 excu sing 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 . U nlike Juror Bounds, Nu mber 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 ; ” r ather, 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.PEOPLE v. MILES 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, philosophic al, or religious objection to the death penalty and that he believed the death penalty was fa ir, noting in part , “If you kill you be
killed

. ” H e 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, amon g 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 w as 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 parag raphs. It is not apparent from the record whether he indeed failed to read or understand those paragraphs or simply checked “no” due to inadvertence.PEOPLE v. MILES Opinion of the Court by Groban, J.

77 weigh and consider all the aggravating and mitigating factors that will be presented to [him] before decid ing 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 a sked , “Do you think

your fe elings about that might affect the way you judge the gui lt
or innocence of the defendant?” H e said, “It might.” The prosecutor then a sked , “Do you think that your feelings might
also a ffect the way you look at the C ourt’s instructions about the death penalty ?” H e again s aid, “It might

. ” He also confirmed that sitting on this type of case m ight be difficult for him based on his feelings.

T he 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 w hich 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.” T he defense asked, “ What gives you

— what is your concern about following that instruction?”
Number 63 responded, “ T he 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, thePEOPLE v. MILES 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 thi nk 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

, s upra , 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 h e said dur ing 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
comf ortable 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. H e indicated in his questionnaire that he was not “will ing to weighPEOPLE 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 d uring 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 h is 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 court 20
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 [t he juror] was excused no one

19 Defendant notes that Number 63 was not directly “asked if he would be willing to set aside wha tever 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 hel d that similar statements do not suffice to pr eserve 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 sh e 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 Numb er 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.

“ ‘ U nder 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

– 12 85 .) We recently declined an invitati on to revisit this
standar d and d o so again here. ( See People v. Rices (2017)

4 Cal. 5th 49, 79

– 80 ( Rices ) .)

III

. G UILT P HASE I SSUES
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 hi s 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 wer e intentionally false or made in reckless disregard for the truth

. The trial court did

not err

.PEOPLE v. MILES 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 o ffice building in
Torrance

. (See ante , pt

. I

. B .1. a

. v.) Within minutes of the report,
and i n the general vicinity from which the suspect may have attempted to flee , two officers spotted defendant in his truck

, app earing very n ervous and matching the suspect’s general description

. The officers unsuccessfully attempt ed 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 sear ch defendant, his residences, and his vehicle

.

a. Detective Lore’s a

ffidavit 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 Bernardin o and Riverside Counties. He
described two such similar incidents : the Christine C. incident
in Victorville and the Osburn and Carol e D. incident in San
Bernardino. In both incidents, the sus pect 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 sma ll 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 S an Bernardino.” Based onPEOPLE v. MILES Opinion of the Court by Groban, J.

82 Stockwell’s analysis , “the subject that was sought after in these

se ries of crimes, is believed to be a Black male that is an ABO type, AB secretor.”

Detective Lore next summarized a series of similar
rob beries. “The robberies included professional business suites in the late evening hours on Mondays, Tuesdays and
Wedne sdays, 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 calib er 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 s uspect 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 han dgun.” “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
wher e 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 d oing 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.”PEOPLE v. MILES Opinion of the Court by Groban, J.

83 Detective Lore then noted that four robberies in Riverside
“had similar suspect descriptions .” The San Bernardino Co unty 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.”

Ne xt, Detective Lore explained that i n 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

. A ccording to the Torrance Police Department, he ha s AB posit ive blood, whic h “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 Calif

ornia Driver’s License is 6’6”, 210#, Blac k 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 t o Compton, CA.” Detective Lore concluded, “[b]ased on my experience as being a policeman for approx imately 20 years, Mr.PEOPLE v. MILES 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 Mi les) and said

, ‘It could be him.’ ”

Near the end of the affid avit, 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 Le vi 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 rev eals 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, d efendant contends that the a ffidavit contained misrepresentations and omissions regarding the
Kleenex box , Heynen’s identification, and the suspect descriptions. Before trial, Detec tive Lore testified regarding his affidavit, the search warrant, and the searches conducted pursuant to the warrant. As to the three purported
mi srepresentations 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 elici ted the following testimony : “Q. Then you state the Kleenex box was linked t o the suspect; is that correct? A. Yes, sir. Q. In what way was the
K leenex 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 not hing of use taken from the box. Q. The purpose of that statement was to assert to the Magistrate, again as a ba sis 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 prosecut or subsequently rec alled Detec tive 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 tr ue at the time of his affidavit, Detective L ore replied, “N o. ” Asked
wh ether he intentionally made this statement with the intent to deceive the magistrate judge

, Detective Lore again replied , “N o. ”
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 didPEOPLE 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 i n his affidavit.
H e said that he orally informed the magistrate judge that he had sought and obtained search warrants with regard to other

suspec ts in this case and that th e 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 r eports, and victim
interviews

. Regarding the ATM photographs, he explained that he had visited the same ATM camera, and by comp aring himself to the photographed suspect , he had estimated that th e suspect was approximately six feet, five i nches 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”; t he 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 [poun ds].”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 w hen he interviewed Arn old

, 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 robber ies “included a male b lack 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” def endant’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 h eight and weight. Rather, he meant that “[t]he descriptions given by the different witnesses and victims in this case, [were] withi n 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 t he three purported misrepresentations or omissions challenged on appeal.
First, r egarding the Kleenex box statement, t he 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 bl ood. 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 t es ting had in fact been done. “H ad 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 disrega rd fo r 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 analy zed. 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 wit h 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 te stify 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 lik ely 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, a s to the purported omission of Heynen’s earlier identification, the trial court found , “The identification by Miss Hey n en is, at the very least, equivocal and falls short o f 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 de scriptions, 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

se arch would uncover wrongdoing.” [Citation

. ] “ The task of thePEOPLE v. MILES Opinion of the Court by Groban, J.

90 issuing mag istrate is simply to make a practical, common

- sense decision whether, given all the circumstances set forth in the
affidavit befo re him [or her], including the ‘ veracity ’ and ‘ basis of knowledge ’ of persons supplying hearsay information, there is a fair pr obability 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 4 5 2, 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 excis ed, 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. 48 4 .)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 lega lity of the search under the Fourth Amendment.” ( People v. Eubanks (2011)
53 Cal.4th 110, 133.) W e consider each of defendan t’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. Mil es”) 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 P olice 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 stat ement 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 assessPEOPLE v. MILES Opinion of the Court by Groban, J.

92 Detective Lore’s demeanor and credibility, the trial court found
that his statement was no t 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 even t , e ven assuming that this statement was intentionally false or made with a reckless disregard for the truth, and accordingly w as excised from the affidavit, the

a ff idavit would nevertheless establish probable cause. The
affidavit catalogued the similarit ies 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 su spect was described as a tall, B lack 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 a s a tall, B lack man with AB blood, which

was consistent with the suspect desc riptions 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 photographicPEOPLE v. MILES Opinion of the Court by Groban, J.

93 lineup by saying “ ‘It could be him

. ’ ” Al though 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 s uspects. 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 omi tted fact of Heynen’s earlier identification, when added to the affidavit, does not
render the affidavit insuff icient 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 t hese 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, a nd 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 t hat he elsewhere in his affidavit
summari zed the suspect descriptions as similar or matching
does not s how 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 p oliceman, “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 Regardin g 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 D efendant a lso 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 affidav it 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 omi tted 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 wa s “effectively”
an element of tho se crimes. We disagree

.

1. Murder by Torture
The trial court instructed the jury that murder by torture require s 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 inst ruction, 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 pu rposes 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 aPEOPLE 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 W h isenhunt 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 se xual 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 t hat “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 th is misdemeanor child annoyance charge from
the motive instruction of CALJIC No. 2.51. ( Maurer

, at p. 1127

. )
Unlike th e 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

– 5 04 ( Hillhouse ) [distinguishing Mau r er 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) require s 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 f urther instructed the jury that “ t he

‘ specifi c 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 lewdPEOPLE v. MILES Opinion of the Court by Groban, J.

97 intent.” Here, again, defendant argues that t h is “purpo se 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 p p. 503

– 504. ) Accordingly , motive was not an element of the penetration by a foreign object charg es simply by virtue of the charges requiring a particular “purpose and specific
intent.” (Cf. People v. White (1986) 179 Cal. App. 3d 193, 198,
20 5

– 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”].) D efendant point s to no authority suggest ing 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

comm itted 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.

. . . U nless 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 notPEOPLE v. MILES 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, t he 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 ext reme 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.”

D efendant argues that CALJIC No. 8.8 1.18 ’s directive that “[t]he murder was intentional” did not adequately instruct the jury as to the intent

- to

- kill requi rement of the

torture

- murder special circumstance . He acknowledges that in

some cases, CALJIC No. 8.81.18 may adequately instruct the j ury as to this requirement. But he argues that where, as here, the jury wa s 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 infli ct torture or intended to commit the crime of rape, robbery, or burglary. In support of t his argument, d efendant relies on People v. Pearson (2012) 53 Cal.4th 306 ( Pearson ).PEOPLE v. MILES Opinion of the Court by Groban, J.

99 In Pearson

, t he trial court includ ed 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
def endant, 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.

W e were unable to conclude beyond a reasonable doubt that “the court’s instructional error, the omission of an intent

to

- kill requirement for an accom plice’s liability under the

torture

- murder special circumstance, was harmless.” ( Pearson

, supra , 53 Cal.4th at p. 32 3 .) 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.” ( I bi d

. ) 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, w e 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 a ider and abettor ] personal ly harbored the intent to kill. ” ( Pearson

, at p. 323

. )PEOPLE v. MILES Opinion of the Court by Groban, J.

100 Defendant’s reliance on Pearson , however, is misplaced.
Unlike in Pearson , t he 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 reck less
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 ther e 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 (20 19)
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 torture

murder special circumstance to be true, it must find that “[t]he
murder was intentional.” W here, as here, defendant was the actual killer, CALJIC No. 8. 81 .18’s requirement that “[t]he
murder was intentional” adequately instruct ed 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 kil l 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 add ition, the prosecutor correctly informed the jury that in order to find the torture

-PEOPLE v. MILES Opinion of the Court by Groban, J.

101 murder special circumstance to be true, the jury must find “an
intentional murder.” 24 Accordingly, t here was no error in these
circumstances

. D. Felony

- Mu rder Special Circumstance s
Defendant contends that the felony

- murder special
circumstance s 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 (20 16)

1 Cal. 5th 269, 347; s ee People v. Watkins (2012) 55 C al.4th 999,
1033

– 10 34 .) 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 mu rder 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 ag o. [¶] 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, th e method of attack, the repetitive nature, again the strangulation, we know the murder was intentional. There’s no issue there.”PEOPLE v. MILES Opinion of the Court by Groban, J.

102 IV. C OMPETENCY P HASE I SSUES
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 co mmenced a competency trial before a separate jury

. Defend ant 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 th us was not competent to stand trial. Canty testified on behalf of the defense , and over the defense’s objection, the pr osecutor cross

- examined him

. Defendant contends that the trial court erred in a llowing th e prosecutor to cross

- examine Canty about his “trial tactics and motive for seeking a competency hearing” because t his testimony was irrelevant, prejudicial, and pr otected from disclosure by the attorney

- client privilege and attorney work product doctrine

. We e xamine eac h of defendant’s contentions
in turn.

1. Competency Trial

a. Defense e vidence

F ive doctors testified on behalf of the defense. Dr. Dudley
testified that defendant suffer ed 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 wer e consistent with
those shown in the PET scan

. Dr. Shoba Sreenivasan , a clinicalPEOPLE v. MILES Opinion of the Court by Groban, J.

103 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 di d

, 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 req uest 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 th e 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

reme dy that avoids the death penalty. The prosecutor then inquired into prior occasions on which Canty h ad voicedPEOPLE v. MILES Opinion of the Court by Groban, J.

104 concerns about defendant’s competency in th is case . Wit h respect to one occasion

, earlier in this case , Canty confirmed
that defendant ultimatel y 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 ou tcome 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 disch arged upon a finding of
inco mpetency

— 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 tactica l 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 accurate ly 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.PEOPLE v. MILES 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 st ated, “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.” T he defense objected to the line o f questioning as irrelevant and prejudicial. In response, t he prosecutor explained th at 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
in structed 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 n o. 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 wher e 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, question ing regarded Canty’s concerns about defendant’s decision

- making in the case

.PEOPLE v. MILES Opinion of the Court by Groban, J.

106 O n 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 tha t the
witnesses who testified in the guilt phase would either be
recalled

, or counsel would stipulate as to their testimony.
F inally

, 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 do n’t remember saying that.” The prosecutor followed up, asking, “It’s possible? And by that I mean, motion for a separ ate 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 e viden ce 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 w as 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 defend ant understood the request but considered it to not be in his best

26 In rebuttal, the def ense offered testimony from Dr. Ronald Roston to refute portions of Dr. Moral’s testimony.PEOPLE v. MILES Opinion of the Court by Groban, J.

107 interest to comply with it

. A video tape 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 ir relevant and unduly prejudicial Only relevant evidenc e 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 .) “ T he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate u ndue consumption of time or (b) create substantial danger o f undue

27 The prosecutor’s closing argument discussed Canty’s possible motiva tions 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 tact ic 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.PEOPLE v. MILES 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 ra ised in the trial. ” ( People v. McCurdy (2014) 59 Cal.4th 1063, 1095.)
“A trial court has ‘considerable discretion’ in determining
the relevance of ev idence. [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. [Citati on.] 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, d efendant 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 assessi ng 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 o n [defendant’s] mental health required the exact type of speculative inference condemned by this court.” InPEOPLE v. MILES Opinion of the Court by Groban, J.

109 response, t he 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 t he 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 tha t 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 eviden ce relevant to his credibility as
a witness in this competency trial

. (C f. 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 suggestio n 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 Peo ple 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 out come.’ ” ’ ”] .)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 aw are, 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 thePEOPLE v. MILES 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 tha t relationship.” (Evid. Code

, § 952.) The “ ‘fundamental purpose’ ” of the attorney

- client privilege is “ ‘to saf eguard 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, h is 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 a nd 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

cas e did not violate the attorney

- client privilege since th ose 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.PEOPLE v. MILES 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 reveal ing any privileged informa tion. 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

. H owever, 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 . Th us , despite these closer calls, none of hi s testimony ultimately disclosed any privilege d
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 Stat es.” 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 CivilPEOPLE v. MILES 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 the ir 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 attorney

client 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 t o 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, t he 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.)PEOPLE v. MILES 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 doctrin e. 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 Ca l.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 th e 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.PEOPLE v. MILES Opinion of the Court by Groban, J.

115 V

. P ENALTY P HASE I SSUES
A

. Admission of Evidence of Crim es 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) 56 7 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 miscond uct 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.)PEOPLE v. MILES Opinion of the Court by Groban, J.

116 defendant’s argument here and find no error in admitting
defendant’s prior convictions under section 190.3, factor (c)

. B

. Admissio n of Evidence of Unadjudica ted 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, co ntends 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 dest royed 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 Winte rs 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, t here is disagreement as to whether she viewed another photo lineu p : S he 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.PEOPLE v. MILES Opinion of the Court by Groban, J.

117 another one and identifying defendant in it , b ut 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

c omposed 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 line up and at the preliminary heari ng

. During the penalty phase of the trial, she identified
defendant in the courtroom, testifying , “I’m certain” as to that
identi fication. She also testified about previously identifying
defendant during the live lineup and during the preliminary
h earing

. 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” a bout it

. On cross

- examination, she
admitted t hat 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

pre viously viewed a phot o 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 tes tified thatPEOPLE v. MILES 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 recall ed 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 a n individual named Steven Dyer. Detective Lore testified that Heynen did not identify Dye r 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 dis as sembled lineup

. The same day as that lineup, she viewed a book of parolee pictures and said that an individual named Damon Cooper looked familiar. Th e book was provided to the defense. The second photo lineup included Boone. She identified anothe r individual in th at lineup , and th e 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 a nother 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 toPEOPLE v. MILES 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 du ring 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 select ed 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 1 9, 1992 incident

, Kendrick recalled viewing two photo lineups

. He testified that he did not identify

anyone in either of th ese lineups . However, Detective Lore
testified that in one of the se 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. T he prosecution , however, provided the defense with a copy of Winters’s DMV picture

, which was not the picture used in the dis as sembled lineup

. In addition

, Kendrick saw a sketch of the suspect a nd
assisted the police in creating a nother 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.PEOPLE v. MILES Opinion of the Court by Groban, J.

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 an yone in them . The defense did not cross

- examine
Kendrick.

d. A rnold A ndersen

Arnold Andersen testified that he viewed photo lineups on
several occasions after the February 21, 1992 robbery, but he
did not r ecall identifying anyone in t hem

. Detective Lore testified that Arnold viewed two photo lineups. As to o ne of these lineups, Detective Lore testified tha t 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 na med Roger Egans was the closest, with an 80 percent certain ty, o n May 21 , 199 2

. Once Egans was eliminated as a suspect, t his lineup was disassembl ed

. The prosecution gave the defense a copy of Egans ’ s DMV photo , but the photo
was not the one used in the dis as sembled lineup

. Arnold also saw a sketch of the suspect that his wife

, Sharyn, assisted in creating . He subsequently identified
defendant during a live lineup a nd at the preliminary hearing
as well

. During the ir penalty phase testimony , b oth 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 Shar yn

.PEOPLE v. MILES Opinion of the Court by Groban, J.

121 e. T rial c ourt ’s r uling

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”

— w a s important but found that there was no willful or malicious
conduct b y the state

. Later, the defense moved to sever the counts involving eyewitness id entification s from the Willem, Chris tine C.,
Osburn

, and Carol e 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 Br ady

, 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, Ken d rick, 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 mad e by some witnesses had not been
p resented to the grand jury. At that time, the prosecutor acknowledged that certain exculpatory evidence indeed had not been presented.PEOPLE v. MILES Opinion of the Court by Groban, J.

122 granted defendant’s motion for severance but denied his motion to exclude the identification testimony. When t he defense
moved to have the severed eyewitness counts tried before the
other counts
, t he court denied th e motion

. Before the penalty phase

, t he defense moved to ex clude
evidence of the se 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 coul d have bee n 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 vict ims 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 cont entions 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 .” R ather , he raise s 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 tria l, confrontation and to present a defense

. In light of defendant’s expressPEOPLE v. MILES Opinion of the Court by Groban, J.

123 clarification

, we do not address his contentions under
Trombetta

. Contrary to defendant’s argument, t he circumstances here
are unlike those in Gardner

, supra , 430 U.S. 349, on wh ich 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 p p. 351, 35 3, 356, 36 2

. ) By

contrast , no evidence in this case was provided to and relied on by the trial judge, but not disclosed to the defense.
Indeed, w e have previously rejected an argument relying

on Gardner

, supra , 430 U.S. 349 in circumstances like those
here. In Pe ople v. Rodrigues (1994) 8 Cal.4th 1060, 116 0

– 116 1, the defendant claimed that he was deprived of his right to a reliable sentencing determination and a fair opportunity to
confront and re but evidence against him because certain
evidence related to an unadjudicated charge had been lost

, includ ing photos shown to the victim . W e held that despite this lost evidence, there was no unfairness in admitting evidence regarding the unadjudicated charge. ( Id

. at p p. 1162

– 1163.) Here, a s in Rodri

gues , 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 acknowledge d having received the suspectPEOPLE v. MILES Opinion of the Court by Groban, J.

124 sketches, a nd 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 identific ation 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 li neup 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 contention s pose a closer call but ultimately, too, fall short. T here 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 prosecuto r 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 def ense

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 circum stances , we find no error and concludePEOPLE v. MILES Opinion of the Court by Groban, J.

125 that admitting the testimony of these four witnesses did not
violate defendant’s state or federal constitutional rights

. Even assuming for the sak e of argument that admitting
this testimony was error, i t 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

, t here was no reasonable possibility that admitting Arnold’s testimony affected the penalty verdict because his wife, Sharyn, testif ied 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

reas onable possibility that admitting the testimony of Yenerall, Heynen, and Ken d rick affected the penalty verdic t either, in light of the volume of other evidence presented , including the
details of Willem’s brutal murder, the Christine C., Osburn,
Carol e 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 a bout 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) i s improper and unconstitutional . Defendant’s argument relies on five out

- of

- state decisions, a textualPEOPLE v. MILES Opinion of the Court by Groban, J.

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

- of

state decisions upon which defendant relies. (See People v.
Davis (2009) 46 Cal.4th 539, 618.) We have also disagreed that
“the textual distinction between sectio n 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 .) W e 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, an d 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 ( s ee,
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 d efendant does not argue that therePEOPLE v. MILES Opinion of the Court by Groban, J.

127 was anything improper about the amount or content of the specific victim impact evidence here

. D efendant , 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 headli nes 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 bef ore 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 disc uss what we’ve talked about with any of the other jurors. And i f there’s anything in the newspaper about this case, please don’t read that.”PEOPLE v. MILES Opinion of the Court by Groban, J.

128 Several months later, the guilt phase jurors returned for the penalty phase. At the defense’s request, the jurors filled out a supplemental ques tionnaire concerning whether they had read, heard, or discussed anything about t he case s ince rendering the verdict

. The first question asked, “Have you read anything in a newspaper about this case since r endering 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 tha t 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
whe ther 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 headl ines, he knew that a c ompetency trial took place and
knew its result

. A sked 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 re turning 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

.PEOPLE v. MILES Opinion of the Court by Groban, J.

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 g et 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 t old 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,

an d 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.” ( Peop le 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 “inadvert ent 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 ju dged 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 thePEOPLE v. MILES Opinion of the Court by Groban, J.

130 extrane ous 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 juro r 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 likeli hood 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 p p. 6 54

– 6 55.)
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.” ( Nesl e r , 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.)
T he 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 wer e inflammatory or biased in their presentation of the facts, or that they conveyed additional informat ion about thePEOPLE v. MILES Opinion of the Court by Groban, J.

131 competency trial such as the issues involved, the evidence presented, or the testimony heard. The relevance of the competency verdict

, or i ts potential for prejudice

, was further diminished at the penalty phase since the task of jurors at the penalty phase wa s qualitatively different f rom that at the competency trial

. Learning only that a competency trial took place and that defendant was fo und 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 [contrastin g extraneous information in case to “a suppressed confession or evidence of
other crimes that the trial court ha d excluded as too prejudicial”]; c f. People v. Ramos (2004) 34 Cal.4th 494, 520

– 522 [newspaper account s of trial w ere 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 a ctually 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 opini ons 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 f inding

. (See People v. Stanley (2006)
39 Cal.4th 913, 951 [accepting credibility determinations regarding juror’s recollection of newspaper a rticle]; s ee also In re Carpente r , supra , 9 Cal.4th at p. 657 [ juror not discussingPEOPLE v. MILES Opinion of the Court by Groban, J.

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

t hese headlines impeded his ability to fairly weigh defendant’s mitigating evidence in vio lation 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 S tate S upreme C ourt

. ” ( Id

. at p. 323.) The high court has “since read Caldwell as ‘relevant only to cert ain 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
C arpente r , 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 the se 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 t he headlines, but the Attorney General accurately points out that the court incorporated its guilt phase jur y instructions into its penalty phase jury instructions, including, “ Y ou must decide all questions of fact in this case from the evidence received i n this trial and not from any other source.”PEOPLE v. MILES Opinion of the Court by Groban, J.

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 o f 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 De fendant objected t o 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 right s 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 evi dence, 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.”PEOPLE v. MILES Opinion of the Court by Groban, J.

134 penalty trial, reliable sentencing decision, equa l protection, due process, and effective assistance of trial counsel

. Assuming defendant’s claim was not f orfeited

, 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 t he 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
de liberations 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 p p. 6 4, 6 6 .)

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 p enalty 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 phasePEOPLE v. MILES Opinion of the Court by Groban, J.

135 verdicts and special circumstance findings as proved beyond a reasonable doubt at the penalty phase. ( Harriso n , supra , 35 Cal. 4th at p. 256 [ jurors may consider linger ing 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, w e discern no error in the trial court’s
instruction s here

. V I

. O THER I SSUES
A. Challenge to California’s Death Penalty Law as Not Adequately Narrow ing 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 argument s claiming that the multiplicity of the statute’s special circumstances fails

to sufficiently narrow the class of death

- eligible defendants

. ( S ee, 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

– 7 68. )PEOPLE v. MILES Opinion of the Court by Groban, J.

136 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 follo ws

. S ection 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 th e 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) o f 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 de cision. ( 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 dea th penalty does not violate international law.” ( S á nchez

, at p. 488.)
Allow ing the jury that adjudicated the defendant’s guilt to weighPEOPLE v. MILES 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 contend s the combined errors require reversal
of his conviction s 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.

V I I

. D ISPOSITION

W e 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 murderin g 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 Peo ple 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 i n 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
murd ering 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 w ith 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 wouldPEOPLE 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 eve n 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 evalua te 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 self

evident and the record is void of any explicat ion 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 IPEOPLE v. MILES Liu, J., dissenting

3 cannot say it is not legitimate.” That was the ext ent 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

c redited 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

m aking 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 doub t 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 cou rt’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 applicabl e 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 highPEOPLE 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 th e 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 decisi on.” ( 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 stan dard “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 j uror, 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 Simeo n 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 havePEOPLE v. MILES Liu, J., dissenting

5 been willing to personall y 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 tha t 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 Si meon 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 “wo uld 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 hePEOPLE 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 differ ent 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 eng age 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 h im 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 questionin g 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
Simeo n 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’sPEOPLE 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, i ndicated 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 b oth.
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

cer tainly 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] inno cent.” 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 pr evail 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 thePEOPLE v. MILES Liu, J., dissenting

8 afternoon after being “single

- hande dly 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] inn ocent.” 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 tha t 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 clari fied 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 ‘feel ing.’

. . . 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 no t 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 basePEOPLE 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 fe eling” 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 a nswers, 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 h e 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 i ndicated 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 aske d if he could follow the instruction that jurors should not draw any conclusions from the fact that a defendant does not testify, hePEOPLE 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 believ ed 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 conscient ious 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 hi s 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 pr osecutor’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 aPEOPLE v. MILES Liu, J., dissenting

11 feeling the defendant was not guilty, that was th e 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 be cause 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 ju rors 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
untrustworthine ss. 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.

T he 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 hePEOPLE 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 b e 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 play ing 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 Simps on 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 a nd 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 arePEOPLE v. MILES Liu, J., dissenting

13 actually corroborated by the poll cited by the At torney 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
considere d “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 l ess 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 ask ed 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 al so 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 underc ut 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 t hat 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. op n., 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

– 5 6; 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 reducib le 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 j uror 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 B atson 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 th e 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 prospectiv e 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 ac cepted 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 state d 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 pa rticular 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 ’sPEOPLE 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 th ose 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 Ame ricans 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]; Peopl e 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 st rikes 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 ha ve 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 disc rimination 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 striki ng 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 wa s 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 tele phone 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 Gard ner 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 C uriae 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, Depu ty 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 14 th 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