SEE DISSENTING OPINIONS

Filed 5/7/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S082776

v. )

) 

ENNIS REED, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. TA037369-01

____________________________________)

This automatic appeal follows from defendant Ennis Reed’s 1999 

conviction and death sentence for the murders of Amarilis Vasquez and Paul 

Moreland. Reed contends that several errors occurred during the guilt and penalty 

phases of his trial. After carefully considering defendant’s claims, we find that 

they do not merit reversal of the guilt or penalty verdicts. So we affirm the 

judgment in its entirety. 

I. FACTS

Defendant Ennis Reed was charged in an amended information with two 

counts of murder (Penal Code § 187, subd. (a)),1 two counts of attempted murder 

(§§ 667/187(a)), the special circumstance of multiple murder (§ 190.2, subd. 

(a)(3)), and various enhancements. The charges arose out of two separate 

incidents, but were consolidated in a single trial. 

 

1 All subsequent statutory citations are to the Penal Code unless otherwise 

noted. 
2

A. Guilt Phase 

1. The Vasquez Murder 

At around 8:00 p.m. on September 24, 1996, Carlos Mendez and his wife 

Amarilis Vasquez took a meal break from their jobs at a plastics factory. The 

couple headed to Tacos El Unico, a Mexican fast food restaurant on Long Beach 

Boulevard in the City of Compton. Mendez and Vasquez parked in the 

restaurant’s lot and ordered food to go. After they got back into their pickup 

truck, the couple noticed a man walking toward the truck with a large pistol. 

Mendez had never seen the man before. As Mendez started the truck, the man 

started shooting at them from a distance of roughly 20 feet. Vasquez — sitting in 

the passenger seat — was hit first, in the head. Mendez was then shot in the right 

cheek. He got out of the truck and started running, but was hit again, this time in 

the left thigh. Mendez fled about 15 feet from the truck before realizing that his 

wife was still inside. By the time Mendez ran back to the passenger side of the 

truck, the man had disappeared. Vasquez died from the gunshot wound to her 

head, while Mendez survived. 

Officer James Lewis of the Compton Police Department was one of the first 

law enforcement officers to arrive on the scene. Officer Lewis interviewed 

Mendez, who was clearly “very, very upset.” Mendez described the shooter as a 

black male with a black jacket. Later that evening, Detective Michael Paiz of the 

Compton Police Department interviewed Mendez at the hospital. Mendez 

described the shooter as a black male “about 5’8” to 5’11” in height, 20 to 25 

years in age, clean shaven, short black hair, wearing a black jacket and black 

pants.” At trial, the parties stipulated that Officer Peters of the Compton Police 

Department would have testified that, on the day of the incident, Mendez 

described the shooter as “a male black adult, 25 years old, wearing black pants and 
3

a black jacket, clean shaven, with short hair, 5’11”, 150 to 180 pounds, medium 

complexion.” 

In January of 1997, Detective Paiz showed Mendez a six-photo array that 

included a photograph of defendant Reed. “[R]ight away,” Mendez picked the

photo of Reed. In May of 1998, Mendez identified Reed as the shooter at a 

preliminary hearing that Reed attended. About two months later — on July 14, 

1998 — Mendez attended a live lineup at the county jail.2 Mendez quickly 

selected Reed because his face “look[ed] like the same as in the photo.” Mendez 

also identified Reed in court during the trial. 

2. The Moreland Murder 

On November 22, 1996, Roy Fradiue was hanging out with his friend Paul 

Moreland at Fradiue’s uncle’s house. The two started drinking sometime that 

evening — or possibly earlier — and smoked marijuana as well. Moreland died 

with phencyclidine (PCP) and cocaine in his system; a deputy medical examiner 

opined he must have ingested the cocaine within hours of his death. 

At around 11:00 p.m., Fradiue and Moreland left the house to walk to a 

store on Long Beach Boulevard in the City of Compton. As the two were 

walking, Fradiue noticed a man standing with several “dudes” in the yard outside 

of a duplex on Glencoe Avenue. Fradiue had never seen the man before. He 

noticed that the man was holding “some type of rifle” with the barrel resting on his 

shoulder, pointing backward. The man said something to Moreland, but Fradiue

could not understand what. Once Fradiue and Moreland passed the duplex,

Fradiue heard a shot. He did not see the man fire the rifle but assumed that the 

man fired into the air because “it didn’t hit nothing.” Then, the man started firing 

 

2 It was Reed who requested the live lineup after the preliminary hearing.
4

at Fradiue and Moreland. Fradiue headed south on Temple Avenue, while 

Moreland headed north. The man fired once at Fradiue, but the shot hit a pole 

instead.3 Fradiue kept running and, a few minutes later, he heard “three or four 

more shots.” Roland Darby was at his house near the intersection of Glencoe and 

Temple at the time of the shooting and recalled hearing a series of shots, a pause,4

and then another series of shots. A few blocks away, Fradiue ran into another 

friend, who drove him back to his uncle’s house. 

Officer George Betor of the Compton Police Department was the first 

officer to arrive on the scene. He found Moreland’s body at the corner of Glencoe 

and Temple avenues. Moreland had been shot nine times. Officer Betor collected 

three shell casings and bullet fragments from the area surrounding Moreland’s 

body. 

The next night, Officer Betor and two colleagues chased a man named 

Chico McLaine — a suspect in an unrelated matter — into a house near the scene 

of Moreland’s murder. The officers encountered an unidentified man in the house 

but did not arrest him. The officers also found an SKS rifle and magazine, both of 

which Officer Betor seized because they fired the same caliber of bullet as the 

shell casings that the officer had found the night before. A forensic expert 

identified two of the three casings found near Moreland’s body as having been

fired by the SKS rifle. The third shell casing had been “worked through” the 

weapon but not fired. Tests were inconclusive, however, as to whether the bullet 

fragments came from the SKS rifle. Law enforcement also could not obtain any 

 

3 Detective Paiz visited the scene during trial and found a rusty bullet hole in 

a “No Parking” sign on Temple Street. He testified that the bullet that created the 

hole was traveling in a “southwesterly direction.” 

4 At trial, Darby estimated the length of the pause as “about five to ten 

seconds” but was confronted with an interview report that indicated that he told an 

officer on the night of the incident that the pause was “two to three minutes.” 
5

fingerprints from the weapon or magazine. When shown the gun during his trial 

testimony, Fradiue stated that it “look[ed] like” the weapon he saw on November 

22. 

Officer Marvin Pollard of the Compton Police Department testified that — 

earlier in the same night as officers pursued McLaine –– he had encountered Reed 

and filled out a field interview card describing their interaction. The card 

indicated that Officer Pollard encountered Reed near the intersection of Glencoe 

and Temple avenues. Officer Pollard stated that other officers were present, but 

that they did not enter any building during the encounter. The interview card 

included a description of Reed’s tattoo, which Officer Pollard relied on to identify 

the defendant in court. The card also described Reed as weighing 122 pounds, 

although Officer Pollard could not recall if the information came from Reed 

himself or his state ID card. In the “Persons with Subject” area of the interview 

card, Officer Pollard wrote “I. McLaine.” 

Fradiue never contacted the police after escaping from the shooting that 

killed Moreland. In April 1997 — roughly six months after Moreland’s death —

Officer Paiz contacted Fradiue and showed him a six-photo array that included a 

photo of Reed. Fradiue testified that he selected Reed’s photo after studying the 

array for “10 minutes,” although Officer Paiz recalled that the identification took 

roughly “10 seconds.” Fradiue thought that the shooter had “real short” hair, and 

admitted that Reed was the only subject in the lineup with “real short hair.” 

Fradiue also identified Reed at the same post-preliminary hearing lineup that 

Mendez attended, as well as at trial. 

3. Defense Evidence 

Reed called a single witness, Foster Slaughter. Slaughter was sitting 

outside the Zodiac motorcycle club at the time of the Vasquez murder. Slaughter 

was about 50 feet from Tacos El Unico when someone started shooting at Mendez 
6

and Vasquez. Slaughter saw the assailant only from the side but described him as 

a black male with long hair and a “big long coat.” He estimated that the assailant

weighed 190 to 200 pounds, although he admitted that the coat could have given

him that impression. Slaughter testified that Reed did not “look like the one was 

there [sic].” 

On rebuttal, the prosecution called Officer Kenneth Roller of the Compton 

Police Department. Officer Roller interviewed Slaughter immediately after the 

incident. Officer Roller’s report indicated that Slaughter had described the 

assailant to him as a black male adult “wearing a three-quarter length black jacket 

and dark jean pants.” The officer testified that he would have included additional 

information in the description had Slaughter provided any. 

The jury convicted Reed of both counts of murder (in the first degree) and 

both counts of attempted murder. The jury also found true the special 

circumstance of multiple murder. 

B. Penalty Phase 

The first penalty phase trial ended in a hung jury, with the jury voting seven 

to five in favor of life without parole. The penalty phase retrial commenced on 

July 30, 1999. The parties stipulated that Reed had been convicted of attempted 

murder on September 12, 1992, “on an aiding and abetting theory . . . wherein he 

was charged as being the driver in a drive-by shooting, not the shooter.” A parole 

officer testified that Reed was released from prison on August 3, 1996, and 

reported to the parole office two days later. The prosecution also introduced the 

following evidence specific to the two murders. 

1. The Vasquez Murder 

Carlos Mendez recounted what happened on the day of his wife’s murder. 

He also testified about the effect of her death on him. Defense counsel cross-
7

examined Mendez about the circumstances of his identification of Reed as the 

shooter. Officer Robert Childs of the Compton Police Department arrived on the 

scene and collected nine shell casings and two expended bullets from the area 

surrounding Mendez’s truck. A forensic pathologist testified about the cause of 

Vasquez’s death. 

2. The Moreland Murder

Roland Darby heard gunshots on the night of Moreland’s murder. He also 

looked out the window and saw Moreland’s dead body. Roy Fradiue recounted 

the circumstances of Moreland’s murder. Defense counsel cross-examined 

Fradiue on various factors relating to the strength of his identification of Reed as 

the shooter: Fradiue had consumed alcohol and marijuana, it was dark out, and he 

had never seen the shooter before. Detective Paiz described the rusty bullet hole 

in the sign on Temple Street. Floyd Moreland — Paul’s father — testified about 

his son’s life and that he missed Paul “terribly.” Officer Betor described the scene 

of Moreland’s murder and recounted finding the SKS rifle in the nearby house. A 

forensic pathologist testified about the cause of Moreland’s death. 

3. Defense Case

Joe Galindo was at his girlfriend’s house near Tacos El Unico on the 

evening of Vasquez’s murder.5 He was on her porch when he heard three 

gunshots. He then saw a black, “somewhat stocky” man run past his girlfriend’s 

house at a distance of roughly 50 feet. Galindo did not see the man’s face but did 

not believe that Reed was the man. Galindo — who was 6’1” and weighed about 

200 pounds — testified that the man he saw “must have been at least my height or 

 

5 Galindo could not be located to testify during the guilt phase, and the trial 

court denied defense counsel’s request for a continuance to allow the defense to 

find him. (See, infra, Part II.A.2.) 
8

a little bit taller.” Defense counsel then read Slaughter’s testimony from the guilt 

phase to the jury. 

Dolores Sheen was the executive director and principal of the middle

school Reed attended for seventh grade. Reed displayed poor literacy and 

performed at a third or fourth grade level. Reed was initially interested in school,

but his interest waned over time. Often tardy or absent, Reed began to exhibit 

behavioral disorders. Sheen attempted to involve Reed’s mother in his education,

but his mother did not provide any “visible support system.” The school did not 

promote Reed to eighth grade. 

Dolores Churchill was Reed’s great-aunt. She testified that Reed’s father 

and mother separated when Reed was in kindergarten. Reed had minimal contact 

with his father and his relationship with his mother was “strained.” Reed always 

manifested learning disabilities and stopped going to school after seventh grade. 

Reed was always considerate, however, and tended toward “quietness” and 

“withdrawing, rather than an explosion of temper.” 

On rebuttal, Officer Lewis described his interview of Mendez immediately 

after the shooting. Mendez then recounted how he had selected Reed in both a 

photographic and live lineup. Officer Childs testified that, when he interviewed 

Galindo on the night of Vasquez’s murder, Galindo told him only that the shooter 

was a “black male adult in a plaid shirt.” 

On August 4, 1999, the jury recommended imposition of the death penalty. 

On September 29, the trial court denied Reed’s motion for a new trial and 

sentenced him to death. 
9

II. DISCUSSION

A. Jury Selection and Pretrial Claims

1. Batson/Wheeler Motion

Reed is African American. He contends the prosecutor violated his state 

and federal constitutional rights to equal protection and a jury drawn from a fair 

cross-section of the community by peremptorily excusing five black prospective 

jurors at the guilt phase. (See Batson v. Kentucky (1986) 476 U.S. 79, 89

(Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We find 

no error. 

a. Factual Background

The trial court began voir dire on May 25, 1999. After exclusions for 

hardship, the jury venire consisted of 123 people, including 42 black jurors, 49 

white jurors, 16 Hispanic jurors, 14 Asian jurors, one “Middle East[ern]” juror, 

and one juror whose race we are unable to determine. Once the parties excused 

certain jurors for cause or by stipulation, 82 prospective jurors remained. The first 

18 jurors to enter the jury box included nine white jurors, six black jurors, two 

Hispanic jurors, and one Asian juror. Following a brief round of voir dire, the 

prosecution exercised peremptory strikes against Corrine T. (a white woman), Bert 

A. (a black man), Billie L. (a black woman), Betzaida C. (a Hispanic woman), and 

Janice C. (a black woman). During a second round of peremptory strikes, the 

prosecutor excused Bruno B. (a Hispanic man), Nickey W. (a black man), and 

Mary C. (a black woman). 

After the prosecutor struck Mary C., defense counsel raised a 

Batson/Wheeler objection. Defense counsel noted that the prosecution had used 

five of his eight strikes up to that point on black prospective jurors. Without 

hearing from the prosecution, the trial court overruled the objection, stating “there 
10

has not been a showing of a strong likelihood” that the prosecutor’s challenges 

were racially motivated. 

Before the jury was sworn, the prosecutor struck five additional jurors, one

of whom was a black woman. The prosecutor also exercised three peremptory 

strikes during the selection of alternate jurors, one of which removed a black 

woman from the panel. The resulting guilt phase jury initially consisted of three 

black jurors, five white jurors, one Hispanic juror, two Asian jurors, and one 

“Middle East[ern]” juror. During the trial, one black juror was excused for 

hardship and replaced by a Hispanic alternate. 

b. Analysis 

Both the United States and California Constitutions prohibit discriminatory

use of peremptory strikes. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 

Cal.3d at pp. 276-277; People v. Gutierrez (2017) 2 Cal.5th 1150, 1157-1159.) To

assess whether such prohibited discrimination has occurred, our inquiry under

Batson/Wheeler follows three distinct, familiar steps. First, the party objecting to 

the strike must establish a prima facie case by showing facts sufficient to support

an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S. 

162, 168 (Johnson).) Second, if the objector succeeds in establishing a prima facie 

case, the burden shifts to the proponent of the strike to offer a permissible, nonbiased justification for the strike.6 (Ibid.) Finally, if the proponent does offer a 

non-biased justification, the trial court must decide whether that justification is 

 

6 In cases where the trial court has concluded no prima facie case has been 

established, it is the better practice to “offer prosecutors the opportunity to state 

their reasons so as to enable creation of an adequate record for an appellate court, 

should it disagree with the first-stage ruling, to determine whether any 

constitutional violation has been established.” (People v. Scott (2015) 61 Cal.4th 

363, 388 (Scott).)
11

genuine or instead whether impermissible discrimination in fact motivated the 

strike. (Ibid.)

The trial court denied Reed’s Batson/Wheeler motion at the first step of the 

inquiry, finding Reed had not established a prima facie case. But it did so at a 

time when California courts applied an unduly stringent standard for Batson

claims at step one. (See People v. Carasi (2008) 44 Cal.4th 1263, 1293.) In 

Johnson, the United States Supreme Court rejected our previous standard —

requiring that it be “ ‘more likely than not’ ” that purposeful discrimination 

occurred — as inconsistent with federal constitutional protections, and instead 

favored a standard turning on whether the opponent of the strike has “ ‘produc[ed] 

evidence sufficient to permit the trial judge to draw an inference’ ” of 

discrimination. (Carasi, 44 Cal.4th at p. 1293, quoting Johnson, 545 U.S. at p. 

170.) As the People concede, the trial court here denied the motion using the 

“more likely than not” standard that Johnson disapproved. In these circumstances, 

we conduct our own independent review of the record and apply the Johnson

standard to determine whether the record supports an inference that the prosecutor 

excused a juror on a discriminatory basis. (People v. Bonilla (2007) 41 Cal.4th 

313, 342 (Bonilla).) 

Although we examine the entire record when conducting our review, 

certain types of evidence are especially relevant. These include whether a party 

has struck most or all of the members of the venire from an identified group, 

whether a party has used a disproportionate number of strikes against members of 

that group, whether the party has engaged those prospective jurors in only 

desultory voir dire, whether the defendant is a member of that group, and whether 

the victim is a member of the group to which a majority of remaining jurors 

belong. (Scott, supra, 61 Cal.4th at p. 384.) We may also consider 

nondiscriminatory reasons for the peremptory strike that “necessarily dispel any 
12

inference of bias,” so long as those reasons are apparent from and clearly 

established in the record. (Ibid.) 

What Reed relies on primarily to advance his challenge is evidence of 

disproportionate strikes against black jurors. The prosecutor used five of his first

eight peremptory strikes (roughly 63 percent) on black jurors, even though such 

jurors constituted only 34 percent of the venire. Considered in the context of the 

entire jury selection process, however, these initial strikes do not support an 

inference of discriminatory intent. (See People v. Garcia (2011) 52 Cal.4th 706, 

748 [considering ratio of stricken challenged jurors in context of overall strikes, 

including those made after Batson/Wheeler motion].) The prosecutor’s next four 

strikes all targeted non-black jurors, and taken together, his strikes did not target 

black jurors in a particularly disproportionate manner. The prosecutor exercised

13 strikes during the selection of regular jurors, and three more while selecting 

alternates. Six of the prosecutor’s thirteen regular juror strikes (46 percent) — and 

seven of sixteen overall (44 percent) — targeted black jurors. Although these 

figures exceed the 34 percent ratio of black jurors in the venire, they do so only 

barely. Viewed in its overall context, the pattern of strikes by itself does not

suggest the inference of discrimination that might otherwise be drawn from the 

prosecutor’s initial strikes.

What is more, the prosecutor first signaled his acceptance of a jury at a time 

when it contained two black jurors, and three black jurors ultimately sat on the 

jury. (See People v. Clark (2011) 52 Cal.4th 856, 906 [noting that prosecutor’s 

repeated passing of “an African-American woman who ultimately served as a 

juror in the guilt phase” helped dispel any inference of discriminatory motive].) It 

is true that the prosecutor used his last strike on a black woman before the trial 

court empaneled the jury. But another black juror replaced her, and the prosecutor 

immediately accepted the panel. While acceptance of one or more black jurors by 
13

the prosecution does not necessarily settle all questions about how the prosecution 

used its peremptory challenges, these facts nonetheless help lessen the strength of 

any inference of discrimination that the pattern of the prosecutor’s strikes might 

otherwise imply. (See People v. Hartsch (2010) 49 Cal.4th 472, 487 [“The 

prosecutor’s acceptance of a panel including these African-American prospective 

jurors, while not conclusive, was ‘an indication of the prosecutor’s good faith in 

exercising his peremptories . . . .’ ”].) Most notably, the prosecutor’s decision to 

strike one black juror while accepting another who replaced her suggests that nonrace related differences between the jurors, rather than race, explain the 

prosecutor’s actions. (See ibid.)

Reed also argues that the prosecutor struck the challenged jurors without 

asking them voir dire questions. Yet the prosecutor did in fact engage Billie L. in 

a lengthy colloquy regarding her views on the death penalty. More important, the 

attorneys received the jurors’ questionnaires prior to commencement of voir dire. 

What we have held is that under these circumstances, an attorney’s failure to 

engage jurors in voir dire is less significant than when the attorneys know nothing 

about the jurors prior to striking them. (See People v. Taylor (2010) 48 Cal.4th 

574, 615 (Taylor).) Accordingly, we accord no great weight to the prosecutor’s 

limited voir dire. 

We find further evidence dispelling any inference of bias in the struck 

jurors’ questionnaires and answers during voir dire. (See People v. Sanchez 

(2016) 63 Cal.4th 411, 435-439 (Sanchez) [considering nondiscriminatory reasons 

for peremptory challenges that are apparent from and “clearly established” in the 

record].) While we are not relying here solely on hypothesized prosecutor reasons 

to strike a juror in assessing a Batson/Wheeler motion, a record devoid of any 

support for race-neutral reasons justifying prosecutor strikes would raise further 

concerns. In this case, however, the record is not devoid of support for race-
14

neutral reasons for excusing each of the jurors in question. Bert A. wrote that his 

brother had a negative experience with law enforcement when he was convicted of 

robbery in 1984. We have previously recognized a relative’s negative experiences 

with law enforcement as a race-neutral hypothetical reason for a strike that dispels

any inference of discriminatory intent. (See People v. Harris (2013) 57 Cal.4th 

804, 836 (Harris).) Moreover, Bert A. reported that he had previously served on a 

criminal jury that hung. We have also recognized such a disclosure as the sort that 

sufficiently dispels any inference of discrimination. (See People v. Farnam

(2002) 28 Cal.4th 107, 138 (Farnam).)

Similarly, both Janice C. and Mary C. reported that their spouses had prior 

contact with law enforcement. Janice C. wrote that her spouse had been convicted 

of a drug offense in 1977, while Mary C. stated that her husband had been arrested 

or charged with a crime 10 years prior to Reed’s trial. (See People v. Booker

(2011) 51 Cal.4th 141, 167 [“A negative experience with the criminal justice 

system is a valid neutral reason for a peremptory challenge”]; Harris, supra, 57 

Cal.4th at p. 836.) 

Billie L. stated in her questionnaire that she was “[s]trongly against” the 

death penalty and, during voir dire, she repeated this view, commenting that “I 

believe that maybe we should just not have a death penalty.” These statements 

were later subject to a measure of equivocation, given her statement that “Each 

case is unique. The death penalty must be considered very carefully.” Even so, 

the prosecutor could have had a reasonable preference to strike Billie L. because 

of the risk –– in light of her earlier statements –– that she would in fact refuse to 

impose the death penalty. We have previously held that the declaration of 

opposition to the death penalty, even when combined with some subsequent 

equivocation, reasonably dispels any inference of discrimination. (See Scott, 
15

supra, 61 Cal.4th at pp. 384-385; People v. Panah (2005) 35 Cal.4th 395, 440-

441.) 

Finally, Nickey W. offered answers on his questionnaire that were 

sufficiently conflicting to raise the possibility for reasonable concern by the 

prosecutor. In response to a question about whether he understood and agreed that 

the fact defendant had been charged with certain crimes was not evidence of his 

guilt, Nickey W. wrote “no,” but then added “you are innocent until proven 

[guilty].” Later, Nickey W. rejected the proposition that a defendant is not 

required to prove that he is innocent, and elaborated that “the defendant has to 

prove his [innocence].” The concerns raised by Nickey W.’s response to critical 

aspects of the questionnaire provide a strong reason for the prosecutor to excuse 

him. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 470.)

Reed also contends that a comparison between the jurors struck by the 

prosecution and the non-black jurors that ultimately served on the jury proves 

these rationales could not have motivated the prosecutor’s strikes. In particular, 

Reed suggests that, if the rationale for the prosecutor’s strikes against black jurors 

Bert A., Janice C., and Mary C. was grounded in their relatives’ arrests or criminal 

convictions, the prosecutor should have also challenged non-black jurors with

relatives who had comparable experience with the criminal justice system. We 

have often declined to undertake comparative juror analysis at step one of the 

Batson/Wheeler framework. (See, e.g., Sanchez, supra, 63 Cal.4th 411 at p. 439; 

Taylor, supra, 48 Cal.4th at pp. 616-617; Bonilla, supra, 41 Cal.4th 313 at p. 350.) 

Nonetheless, such analysis can be helpful in certain circumstances to assess 

whether a defendant established a prima facie case of bias. (See Scott, supra, 61 

Cal.4th at p. 390; Harris, supra, 57 Cal.4th at 874-876 (conc. opn. of Liu, J.).)

Reed’s comparisons in this case, however, are unavailing. 
16

It is true that Bert A., Janice C., and Mary C. have family members who 

were arrested or convicted of crimes. Nonetheless, the prosecution had additional, 

independent reasons for striking these potential jurors aside from the fact that their 

relatives had a criminal history. For one, Bert A. indicated that he previously 

served on a criminal jury involving a murder charge that resulted in a hung jury. 

(See Farnam, supra, 28 Cal.4th at p. 138 [concluding that sitting on a hung jury 

“constitutes a legitimate concern for the prosecution”].) Mary C.’s questionnaire

answers, meanwhile, were frequently incomplete and, in particular, she failed to 

answer critical questions related to her husband’s criminal history.

There is a further distinction in whether the relevant family members had 

been convicted of their respective crimes. The relatives of Bert A. and Janice C.

had indeed been convicted. Bert A.’s brother was convicted and served time for 

burglary, and Janice C.’s husband was convicted on drug charges. Although Reed 

compares Bert A. and Janice C. with jurors whose family members had been 

arrested, no evidence suggests these family members were convicted or served 

time in prison. The prosecutor could have readily concluded that a criminal 

conviction, or time spent in prison, was more significant than simply having a 

family member arrested. (See People v. Lancaster (2007) 41 Cal.4th 50, 78 

[“[N]o inference of group bias appears from the prosecutor’s decision to challenge 

a prospective juror whose family members were serving or had served prison 

terms”].)

Accordingly, Reed fails to demonstrate that the totality of relevant facts 

give rise to an inference of discriminatory intent for the prosecutor’s strikes. (See 

also People v. Gray (2005) 37 Cal.4th 168, 189 [a prosecutor may “excuse a 

prospective juror for a variety of reasons, finding no single characteristic 

dispositive”].) 
17

 2. Motion for a Continuance

On the first day of trial, Reed motioned to continue proceedings so he could 

secure the presence of Joe Galindo as a defense witness. The trial court denied the 

motion. Reed contends that the trial court’s decision was an abuse of discretion, 

and that it violated his federal constitutional rights under the Sixth Amendment 

and his right to due process under the Fourteenth Amendment. We reject the 

claim.

During the first morning of trial, Reed’s attorney made an oral motion for a 

continuance to secure the presence of Joe Galindo. Reed’s attorney stated only 

that Galindo was a member of the National Guard who had been deployed, 

“perhaps to Yugoslavia.” The prosecutor then objected to the continuance. He 

explained to the trial court that Galindo did not witness the shooting of Vasquez 

and Mendez but did see someone running away from the location of the shooting 

shortly after it occurred. He further explained that Galindo could not identify the 

fleeing individual but could offer a description of him that is “somewhat 

consistent, somewhat inconsistent with the way the defendant looks.” Reed’s 

attorney then stated that the prosecutor’s description of Galindo’s anticipated 

testimony was “fair and accurate.” The trial court denied the motion without 

hearing further argument. After the penalty phase retrial — at which Galindo 

testified — Reed moved for a new trial based on the earlier denial of his motion 

for a continuance. The trial court denied the motion. 

A criminal trial may be continued only upon a showing of good cause. 

Trial courts have wide discretion to determine whether such cause exists. (§ 1050, 

subd. (e); People v. Doolin (2009) 45 Cal.4th 390, 450.) In making that 

determination, courts consider whether the moving party has acted diligently, the 

anticipated benefits of the continuance, the burden that the continuance would 

impose on witnesses, jurors, and the court, and whether a continuance will 
18

accomplish or hinder substantial justice. (Doolin, at p. 450.) On appeal, we 

review all circumstances relevant to the motion to determine whether the trial 

court’s decision was so arbitrary as to deprive the movant of due process. (Ibid.) 

We find no abuse of discretion here. Reed’s attorney requested a 

continuance of unknown duration, and suggested to the trial court that Galindo 

might not be available to testify for quite some time.

7 Indeed the trial court was 

understandably concerned that granting a continuance would delay the trial 

indefinitely. Under these circumstances, the trial court did not act arbitrarily in 

believing that any continuance would impose a significant burden on everyone 

involved in the trial, not least the prospective jurors who had filled out lengthy 

juror questionnaires and arrived at court that day for the beginning of juror 

selection. 

Nor did Reed’s attorney suggest Galindo’s testimony was particularly 

beneficial to the defense. In fact, defense counsel expressly agreed with the 

prosecutor’s contention that the anticipated testimony would only be partially 

exculpatory, in that Galindo’s description of the individual would be “somewhat 

consistent, somewhat inconsistent” with Reed. Reed argues that Galindo’s 

testimony at the penalty phase retrial was more helpful to the defense than 

suggested during the request for a continuance. While we consider all 

circumstances relevant to a ruling on a motion for a continuance, we focus 

particular attention on the reasons actually given for the request. (See People v. 

Mungia (2008) 44 Cal.4th 1101, 1118 [“ ‘There are no mechanical tests for 

deciding when a denial of a continuance is so arbitrary as to violate due process. 

 

7 We also note that defense counsel did not mention his efforts to secure 

witness Galindo’s attendance until after the motion for a new trial. Although it 

appears that counsel did go to some lengths in attempting to serve the witness, he 

did not relay this information at the time the continuance was sought.
19

The answer must be found in the circumstances present in every 

case, particularly in the reasons presented to the trial judge at the time the request 

is denied.’ ”], quoting Ungar v. Sarafite (1964) 376 U.S. 575, 589, italics added.) 

And the reasons presented to the trial judge were not particularly compelling.

Reed also cites numerous cases where reviewing courts have found an 

abuse of discretion to have occurred after a trial court denied a continuance to 

secure a witness. Yet none of those cases present the circumstances here: a 

request for a continuance that would not only have been of indefinite duration but 

also of limited apparent utility. (See Jennings v. Superior Court (1967) 66 Cal.2d

867, 871 [request for four day continuance]; People v. Buckey (1972) 23 

Cal.App.3d 740, 744 [request for continuance until “next court day” for “highly 

necessary” testimony]; Bennett v. Scroggy (1986) 793 F.2d 772, 775 [witness 

“probably could have been located overnight”]; U.S. v. Flynt (1984) 756 F.2d

1352, 1360 [continuance “would not have resulted in any cognizable 

inconvenience to the court or the government”]; Hicks v. Wainwright (1981) 633 

F.2d 1146, 1149-1150 [witness available to give “critical” testimony “that evening 

or at any time thereafter”]; U.S. v. Powell (1978) 587 F.2d 443, 446 [request for 

four day continuance]; Johnson v. Johnson (1974) 375 F. Supp. 872, 876 

[witnesses could have appeared “the next day”].) 

So we find no abuse of discretion.8

 

8 Although Reed’s briefing is unclear, he appears to challenge the trial 

court’s denial of his motion for a new trial based on the denial of the motion for a 

continuance. Because we hold that the denial of Reed’s motion for a continuance 

did not deny him a fair trial, we also reject any challenge to the trial court’s ruling 

on the motion for a new trial. Our rejection of the merits of Reed’s argument 

regarding the continuance also suffices to reject any constitutional “ ‘gloss’ ” on 

that claim. (See People v. Wallace (2008) 44 Cal.4th 1032, 1050 fn. 4.) 
20

B. Guilt Phase Claims 

1. Sufficiency of the Evidence for the Murder of Amarilis Vasquez and 

Attempted Murder of Carlos Mendez

Reed contends the prosecution introduced insufficient evidence to prove his 

identity as the assailant of Vasquez and Mendez. He maintains that the 

prosecution’s failure to carry its burden violated his right to due process under the 

Fourteenth Amendment of the United States Constitution. (See Jackson v. 

Virginia (1979) 443 U.S. 307, 315-316.) We find no error. 

On appeal, the test for sufficiency of the evidence is whether evidence was 

presented from which a reasonable trier of fact could conclude, beyond a 

reasonable doubt, that the prosecution sustained its burden of proof. (People v. 

Boyer (2006) 38 Cal.4th 412, 479 (Boyer).) Although we assess whether the 

evidence is inherently credible and of solid value, we must also view the evidence 

in the light most favorable to the jury verdict and presume the existence of every 

fact that the jury could reasonably have deduced from that evidence. (Id. at p. 

480.) Even identification of defendant by a single eyewitness may be sufficient to 

establish, beyond a reasonable doubt, defendant’s identity as perpetrator of the 

crime charged. (Ibid.) 

Mendez’s testimony and identification constitute the only evidence 

introduced to prove Reed’s identity as the shooter in the Vasquez incident. 

Nevertheless, when viewed in the light most favorable to the jury verdict, we find 

that Mendez’s testimony provided sufficient evidence to sustain Reed’s 

convictions. Mendez identified Reed as the shooter in two separate lineups and at 

the preliminary hearing, and reiterated that identification at trial. There was 

nothing “inherently improbable” about this testimony. (See Boyer, supra, 38 

Cal.4th at p. 480.) Defense counsel also cross-examined Mendez about the factors

that might undermine the reliability of his identification: Mendez had never seen 
21

the shooter before, and was understandably under substantial stress during the 

incident. Under these circumstances, the jury could reasonably have weighed the 

value of Mendez’s identification and relied on it to find that Reed was the shooter.

Reed argues that the identification procedures were unduly suggestive 

because, Reed maintains, he was the only bald individual in the six-photo array

and the only person to appear in both the photo array and in-person lineup. But 

defense counsel did not object to the identification procedures, and Reed does not 

now argue the trial court erred when it admitted evidence that Mendez identified

Reed on those two occasions. Any other sufficiency argument based on the 

identification procedures attacks the credibility of Mendez’s testimony, which we 

do not question when considering sufficiency of the evidence so long as the 

witness’s testimony is not inherently improbable. (See People v. Jennings (2010) 

50 Cal.4th 616, 638 (Jennings) [In considering the sufficiency of the evidence 

“[w]e neither reweigh the evidence nor reevaluate the credibility of witnesses.”].) 

Reed also argues that several factors rendered Mendez’s identification not 

credible, especially when compared to Slaughter’s exculpatory testimony. Once 

again, however, these arguments go to the credibility of Mendez’s testimony and 

its weight, which we cannot reconsider on appeal. 9 Accordingly, we find 

sufficient evidence of Reed’s guilt for the murder of Amarilis Vasquez and 

attempted murder of Carlos Mendez. 

 

9 Reed also asks us to consider Galindo’s exculpatory testimony as part of 

this claim. But when considering the sufficiency of the evidence, of course, we 

are limited to considering the evidence actually presented to the jury. (See People 

v. Horton (1961) 191 Cal.App.2d 592, 598 [“On a review of the sufficiency of the 

evidence to sustain the judgment of conviction, an appellate court is not permitted 

to go outside that record.”].) 
22

2. Sufficiency of the Evidence for the Murder of Paul Moreland and 

Attempted Murder of Roy Fradiue 

Reed next challenges the sufficiency of the evidence identifying him as the 

shooter in the murder of Paul Moreland and attempted murder of Roy Fradiue. 

We apply the same standard as to Reed’s challenge to his convictions for the 

Vasquez/Mendez incident, and we reject the claim as well.

Fradiue’s testimony was the principal evidence of Reed’s involvement in 

the Moreland/Fradiue shooting. Fradiue identified Reed as the shooter on three 

occasions: from the photo array, in the in-person lineup, and during trial. And as 

with Mendez’s testimony, Reed’s trial counsel cross-examined Fradiue on the 

circumstances that might lead the jury to doubt his identification: Fradiue was 

intoxicated, and he never reported the incident. Nothing rendered Fradiue’s

testimony inherently unreliable, so we hold that the jury could have reasonably

relied on it to conclude that Reed was the shooter. (See Boyer, supra, 38 Cal.4th 

at p. 480.) What is more, the evidence put Reed very near the scene of the 

shooting the night after it occurred, and with an individual whose last name 

matched someone whom the police chased that same night into a home that 

contained the murder weapon. Considering all this evidence in the light most 

favorable to the guilty verdicts, the jury could reasonably have connected Reed to 

the murder weapon as the unidentified man that Officer Betor encountered in the 

house. (See ibid. [We “must presume every fact the jury could reasonably have 

deduced from the evidence.”].) 

Reiterating arguments advanced in his previous claims, Reed contends here 

that the identification procedures behind Fradiue’s testimony were suggestive. He 

also offers several reasons why Fradiue’s testimony could be unreliable. Such 

arguments fail to establish that Fradiue’s testimony was inherently improbable, 

however, because they merely invite us to reweigh the evidence introduced at trial. 
23

(See Jennings, supra, 50 Cal.4th 616 at p. 638.) Reed also cites People v. Trevino

(1985) 39 Cal.3d 667 and People v. Blakeslee (1969) 2 Cal.App.3d 83, but those 

cases are inapposite. In Trevino, the eyewitness identification was highly 

equivocal, in contrast to Fradiue’s consistent identification of Reed as the shooter. 

(39 Cal.3d at p. 696 [“Mrs. Nyberg was never able to positively identify Rivas as 

the second man at the apartment.”].) And in Blakeslee, the prosecution offered no 

direct evidence of the defendant’s guilt at all. (2 Cal.App.3d at p. 838 [“No one 

witnessed the shooting, no one placed defendant in the apartment at the time of the 

shooting, no one saw defendant with a weapon, and no one identified defendant 

with any particular weapon.”].) Because the circumstances of this case are 

different, we reject Reed’s claim. 

3. Mendez’s References to Reed as the “Devil”

During his testimony at the guilt phase, Mendez referred to Reed as “this 

devil” or “that devil” on 13 occasions (for example when testifying “I saw this 

devil coming with pistol, you know, against us”). Defense counsel did not object 

at any point or move for a mistrial. Mendez also referred to Reed as “that devil” 

or “this devil” three times during his testimony at the penalty phase retrial. 

Defense counsel objected after the second of these outbursts and the trial court 

admonished Mendez to refer to Reed as “the defendant” or “Mr. Reed.” Mendez 

nevertheless referred to Reed as “this devil” once more, but defense counsel did 

not object or request a mistrial. Reed argues that the trial court abrogated its duty 

to protect the jury from improper influence by failing to control Mendez and 

admonish the jury to disregard his outbursts. (See Sheppard v. Maxwell (1966) 

384 U.S. 333, 362 [due process requires an impartial jury free from improper 

influence].) 
24

Courts indeed retain broad power to control their courtrooms and protect a 

defendant’s right to a fair trial. (People v. Virgil (2011) 51 Cal.4th 1210, 1237; 

see also People v. Merkouris (1956) 46 Cal.2d 450, 556 [“It is the duty of a judge 

in the administration of justice to preserve the order of the court and see to it that 

all persons whomsoever . . . indulge in no act or conduct calculated to obstruct the 

administration of justice.”].) But we have never held that a trial court must sua 

sponte admonish the jury to ignore a witness’s emotional outbursts. (See People 

v. Medina (1995) 11 Cal.4th 694, 727 [A trial court “ ‘has no sua sponte duty to 

exclude evidence or to remedy misconduct.’ ”], quoting People v. Freeman (1994) 

8 Cal.4th 450, 490.) In Medina, we reiterated that due process did not compel a 

trial court to recognize and correct all instances of arguable prosecutorial 

misconduct. (Ibid.) So too with a witness’s emotional outbursts. Reed was 

represented at trial, so the responsibility fell to defense counsel to protest any 

objectionable testimony. (See People v. Hinton (2006) 37 Cal.4th 839, 894 [A 

defendant must object to allegedly inadmissible evidence to preserve the claim.].) 

Indeed it is not inconceivable that, in certain circumstances, defense counsel 

would decide as a matter of strategy to allow a witness to engage in emotional 

outbursts, perhaps to undermine that witness’s credibility. Imposing a duty on 

trial courts to intervene in these situations risks unnecessarily enmeshing trial 

courts in choices best left to defense counsel. (Cf. People v. Seumanu (2015) 61 

Cal.4th 1293, 1312 [“[W]hether or not to object to evidence at trial is largely a 

tactical question for counsel.”].) 

Reed likens Mendez’s conduct to the circumstances of Rodriguez v. State

(Fla.Dist.Ct.App. 1983) 433 So.2d 1273. Leaving aside that the case merely 

constitutes potentially persuasive authority, it is easily distinguishable. In that 

case, defense counsel had moved for a mistrial after a witness’s outbursts. (Id. at 

p. 1274.) The circumstances were similar in Fuselier v. State (Miss. 1985) 468 
25

So.2d 45, another case Reed cites. (Id. at pp. 52-53 [noting that defense counsel 

repeatedly objected to the victim’s daughter being allowed to sit with the 

prosecution during trial].) Accordingly, the cases do not support Reed’s theory

that the court had a duty to sua sponte intervene to control Mendez and admonish 

the jury. We find no error. 

4. Jury Instructions Related to Eyewitness Identification 

At the time of defendant’s trial, CALJIC No. 2.92 was the model jury

instruction that addressed eyewitness identification factors. The trial court 

proposed to give a version of the instruction that omitted two factors listed in the 

model: “Whether the witness had prior contacts with the alleged perpetrator” and 

“The witness’[s] capacity to make an identification.” Reed argues the trial court 

erred reversibly in overruling defense counsel’s objection to these omissions. 

Although we agree with Reed that the trial court erred in striking the omitted 

factors, we do not think it reasonably probable that the Reed would have received 

a more favorable result had the court given the complete instruction. (See People 

v. Ward (2005) 36 Cal.4th 186, 214 (Ward) [reviewing potential error in substance 

of CALJIC No. 2.92 under People v. Watson (1956) 46 Cal.2d 818 harmless error 

standard].) 

a. Striking of CALJIC No. 2.92 Factors was Erroneous 

A defendant is entitled to a specific “pinpoint” jury instruction if it relates 

to particular facts or a theory of the defense and is supported by substantial 

evidence. (People v. Nelson (2016) 1 Cal.5th 513, 542.) More specifically, 

“CALJIC No. 2.92 or a comparable instruction should be given when requested in 

a case in which identification is a crucial issue and there is no substantial 

corroborative evidence.” (People v. Wright (1988) 45 Cal.3d 1126, 1144.) The 

trial court clearly believed that eyewitness identification was a major issue in the 
26

case, as it included CALJIC No. 2.92 in the instructions. But it nonetheless 

overruled Reed’s request that it give an unmodified version of the instruction. 

The trial court chose to omit any reference in the instructions to “[w]hether 

the witness had prior contacts with the alleged perpetrator” because, it concluded, 

no evidence existed that any “witnesses have ever had any contact with Mr. 

Reed.” The People attempt to defend this rationale on appeal, arguing that Reed 

had to supply substantial evidence of prior contacts between the defendant and 

witnesses for the instruction to be relevant. But this argument ignores that a lack

of evidence of prior contacts with the eyewitness is also relevant to the strength of 

an identification. As defense counsel explained to the trial court, the portion of 

CALJIC No. 2.92 in dispute calls jurors’ attention to the fact that eyewitness 

identifications are considered to be less reliable when the eyewitness has never 

seen the suspect before. Indeed it would make no sense to condition a defendant’s 

right to this portion of the instruction on a showing of prior contacts between the 

witness and the defendant, because such evidence would tend to favor the 

prosecution. Accordingly, we hold that the trial court should have included this 

factor in the version of CALJIC No. 2.92 given to the jury. 

For the factor concerning “[t]he witness’[s] capacity to make an 

identification,” the trial court reasoned that its applicability is limited to “someone 

who is of minor age” or similar circumstances. We read this to indicate that the 

trial court believed the factor applicable only to capacity limitations that are innate

(e.g., age or mental disability) as opposed to exogenous (e.g., intoxication). There 

is no apparent reason, however, to give the instruction this limited interpretation. 

Although some contemporaneous definitions of “capacity” might suggest such a 

limitation, others do not. (See Webster’s 9th New Collegiate Dict. (1987) p. 203 

[including both “mental or physical ability” and “potential for . . . experiencing” as 

definitions]; see also People v. Sanders (1995) 11 Cal.4th 475, 514 fn. 5 [noting 
27

that CALJIC No. 2.92 was promulgated in 1984].) Evidence that Fradiue was 

intoxicated when attacked — something that defense counsel brought to the 

court’s attention when discussing jury instructions — justified leaving the 

“capacity” factor in the instructions. 

Nevertheless, defense counsel conceded — perhaps unnecessarily — that

an argument based on Fradiue’s intoxication was not “really a capacity argument.”

Counsel appeared to agree that this factor could be omitted if the instruction given 

to the jury included the catchall “Any other evidence relating to the witness’

ability to make an identification.” We therefore hold that Reed forfeited any 

challenge on appeal to the omission of this factor from the jury instructions. (See

People v. Fuiava (2012) 53 Cal.4th 622, 653 [objection to trial court’s voir dire is 

forfeited where defense counsel submitted particular questions but then 

“assent[ed]” to trial court’s alternate approach].) 

b. Any Error Related to the Modification of CALJIC No. 2.92 was 

Harmless 

Although the trial court should have instructed the jury with a version of 

CALJIC No. 2.92 that included the requested factors, its failure to do so was 

harmless. The instruction the trial court did use included the catchall “Any other 

evidence relating to the witness’ ability to make an identification,” which gave 

defense counsel the latitude to offer arguments based on the lack of prior contacts 

between Reed and the eyewitnesses and Fradiue’s intoxication. In fact, defense 

counsel argued during closing that Fradiue’s identification was unreliable because 

he had “been drinking all day.” And while defense counsel did not offer any 

specific argument based on the lack of prior contacts, the trial court’s decision to 

modify CALJIC No. 2.92 did not preclude defense counsel from doing so. We are 

not persuaded, furthermore, that there is any reasonable probability that Reed 

would have obtained a more favorable result if defense counsel had offered such 
28

an argument. The focus of Reed’s attorney’s closing argument was the asserted 

unreliability of Fradiue’s and Mendez’s identifications. Because “defendant 

strongly attacked the accuracy of the eyewitness identifications,” there is no 

reasonable probability that the inclusion of the omitted CALJIC No. 2.92 factors

— and any additional argument expressly connected thereto — would have led to 

a more favorable verdict for the defendant. (Ward, supra, 36 Cal.4th at p. 214.) 

C. Penalty Phase Claims 

1. Issues Relating to Lingering Doubt

Reed argues that the trial court erred in refusing to instruct the penalty 

phase retrial jury on lingering doubt. (See People v. Gay (2008) 42 Cal.4th 1195, 

1218 (Gay) [“’The lingering doubts of jurors in the guilt phase may well cast their 

shadows into the penalty phase and in some measure affect the nature of the 

punishment.’ ”], quoting People v. Terry (1964) 61 Cal.2d 137, 146.) He also 

claims that other aspects of the trial court’s communications with the jury intruded 

on defense counsel’s ability to argue lingering doubt, and essentially directed a 

verdict of death. We find no error. 

a. Factual Background 

Before the penalty phase retrial, and again after the close of the evidence, 

the trial court informed jurors that Reed’s guilt for Vasquez’s and Moreland’s 

murders was to be “conclusively presumed” and had been “conclusively proven.”

After the end of the retrial, defense counsel requested two jury instructions 

relating to lingering doubt. The prosecutor objected, and the trial court declined to 

give the instructions. The instructions given addressed the section 190.3 factors to 

determine a murder penalty, including factor (k), which directs the jury to consider

“[a]ny other circumstance which extenuates the gravity of the crime even though it 

is not a legal excuse for the crime.” The jury instructions also stated that the 
29

defendant had previously been convicted of first degree murder with a special 

circumstance found true. 

During closing argument, defense counsel argued at length that problems 

with Mendez and Fradiue’s identifications of Reed should lead the jury to reject 

the death penalty. After the jury deliberated for several hours, it asked the court 

the following question:

If the jury agrees that one of the cases presented warrants the death penalty, 

however, one of the cases contains some doubt, according to the 

instructions, is it sufficient for awarding death? 

Defense counsel argued that the trial court should respond “no” and inform the 

jury that it could consider lingering doubt as a circumstance in mitigation. The 

prosecutor argued that “legally the answer to the question is yes,” but expressed 

concern that telling the jury “yes” would be “telling them how they should vote.” 

The parties therefore settled on the following answer: “All things considered, 

including whatever doubt you may have on one of the murders, all things 

considered, you can chose one or the other.” The trial court then instructed the 

jury as follows:

That all things considered in this case, in the context of your question, the 

jury still may choose which of the two penalties is appropriate in this case. 

The answer is yes. 

After further deliberation, the jury returned a verdict of death. 

b. Analysis

We can readily address Reed’s contention that the trial court erred in 

refusing to instruct the jury before it began deliberating on lingering guilt. We 

have “put to rest” the “Cox dictum that a lingering doubt instruction may be 

required as a matter of statutory law.” (Hartsch, supra, 49 Cal.4th at pp. 512-

513.) Rather, “the standard instructions on capital sentencing factors, together 

with counsel’s closing argument, are sufficient to convey the lingering doubt 
30

concept to the jury.” (Id. at p. 513; see also People v. Jackson (2016) 1 Cal.5th 

269, 369-370 [“Neither state nor federal law requires a trial court to instruct a 

penalty jury to consider lingering doubt as a factor in mitigation.”].) Reed does 

not dispute that the trial court instructed using the standard sentencing factors and

that his attorney argued lingering doubt extensively during closing. We therefore 

find no error. 

Reed also challenges the trial court’s response to the jury’s query. As an 

initial matter, the Attorney General argues that Reed has waived this claim

“because defense counsel both participated in the formulation of a response and 

affirmatively approved of the response ultimately given.” But the response given 

to the jury differed in two material respects from that to which the parties agreed: 

The trial court omitted the proposed instruction’s reference to lingering doubt and 

added “[t]he answer is yes” to the end of the response. Because the instruction 

given materially differs from that to which Reed’s attorney acceded, Reed did not 

waive the issue. 

On the merits, we find no error. We reject the argument that the question’s 

reference to “doubt” entitled Reed to his proposed lingering doubt instruction. In 

People v. Brooks, the jury asked whether “one item in mitigation was enough for a 

sentence of life without the possibility of parole,” a concept that we have 

repeatedly held that a trial court does not need to specifically explain to the jury. 

(People v. Brooks (2017) 2 Cal.5th 674, 768.) We did not embrace the 

defendant’s contention that the jury’s question required the trial court to give his

proposed instruction on the issue. (Id. at pp. 768-769.) The circumstances here 

are similar. The sheer fact that the jury appeared to be confused about lingering 

doubt did not automatically entitle the defendant to his proposed instruction. 

Instead, we review the trial court’s response for abuse of discretion to determine 

whether it adequately satisfied the jury’s request for information. (Id. at p. 769.) 
31

Here, there was no abuse of discretion. The instruction was an accurate 

statement of relevant law. Lingering doubt is but one factor a jury may consider 

when determining the appropriate penalty. And no single section 190.3 factor 

“determines which penalty — death or life without the possibility of parole — is 

appropriate.” (Virgil, supra, 51 Cal.4th at p. 1279, quoting People v. Prieto

(2003) 30 Cal.4th 226, 263.) Accordingly, a jury may impose a death sentence 

notwithstanding its belief that mitigating circumstances, including lingering doubt,

exist. (See CALJIC No. 8.88 [“To return a judgment of death, each of you must 

be persuaded that the aggravating circumstances are so substantial in comparison 

with the mitigating circumstances that it warrants death instead of life without 

parole.”].) The trial court’s statement that, even if the jury has some doubt, it “still 

may choose which of the two penalties is appropriate” was therefore an accurate 

statement of the significance of the existence of lingering doubt in jury’s penalty

determination. Reed seizes on the prosecutor’s comment that “telling [the jury] 

yes they can” — something the trial court added to the end of the supplementary 

instruction — “will be telling them how they should vote.” He argues that even 

the prosecutor recognized that the court’s statement essentially directed a death 

verdict. Read as a whole, however, the supplemental instruction did not direct a 

verdict but instead advised the jury that it could impose a death sentence based on 

“all things considered in this case” even if it found lingering doubt. We therefore 

find no error. 

Reed also takes issue with the trial court’s statements that his guilt was to 

be “conclusively presumed” and had been “conclusively proven.” But we have 

previously held that similar statements do not impede a defendant’s ability to 

argue lingering doubt. (See People v. Streeter (2012) 54 Cal.4th 205, 265 [“The 

trial court properly instructed the jury that the penalty phase jury 

must conclusively accept the previous guilt phase jury’s findings on 
32

defendant’s guilt and on the truth of the special circumstance allegations.”]; see 

also People v. DeSantis (1992) 2 Cal.4th 1198, 1236, 1238 [holding that trial 

court’s statement that defendant’s guilt “has already been decided” “did not 

remove the question of lingering doubt from the jury, but only told it the truth: that

in the penalty phase defendant’s guilt was to be conclusively presumed as a matter 

of law”].) Reed relies on Gay, supra, 42 Cal.4th 1195, but that case is 

distinguishable. In Gay, the error was evidentiary: the trial court erroneously 

precluded defense counsel from introducing evidence inconsistent with the prior 

jury’s guilty verdict. (42 Cal.4th at p. 1218.) Here, by contrast, the defense

introduced considerable testimony during the penalty phase retrial asserting that 

Reed was not the shooter. Gay did note that the trial court’s instructions to the 

jury compounded its evidentiary error. (42 Cal.4th at p. 1224.) But those

instructions told the jury to “disregard” any statements or evidence that 

contradicted the prior jury’s verdict. (Id. at p. 1225.) In contrast, the instructions 

here did nothing of the sort. Because of this, the instructions were not erroneous. 

Finally, Reed argues that the trial court erred by failing to inform the 

penalty phase retrial jury of the first jury’s deadlock and that Galindo did not 

testify during the first trial. Defense counsel did not request either of these 

instructions. Any claim based on the trial court’s failure to instruct on these points 

is therefore forfeited. (Cf. Jennings, supra, 50 Cal.4th at p. 675 [failure to request 

pinpoint instruction forfeits claim on appeal].) On the merits, we have made clear 

that “the fact of a first jury’s deadlock, or its numerical vote, is irrelevant to the 

issues before the jury on a penalty retrial.” (People v. Hawkins (1995) 10 Cal.4th 

920, 968, abrogated on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 

109-111.) As for information about Galindo’s absence during the guilt and first 

penalty phases, it too bore no obvious relevance to the issue before the penalty 

retrial jury. Reed argues that the information highlighted the weakness of the 
33

prosecution penalty phase case, as the first penalty phase jury deadlocked even 

without Galindo’s testimony. But this argument depends on information about the 

first jury’s deadlock being admissible –– it is not. Any other argument based on 

Galindo’s absence would serve only to attack the validity of the guilt phase 

verdict, something a defendant cannot do when offering lingering doubt evidence. 

(See Gay, supra, 42 Cal.4th at pp. 1223 [A “defendant may not ‘relitigate’ the 

guilt verdict.”], quoting State v. Teague (Tenn. 1995) 897 S.W.2d 248, 252.) 

Accordingly, no error resulted from failing to inform the jury of that fact. 

2. Alleged Coercion of Juror No. 1

At about 10:45 a.m. on the second day of deliberations, the penalty retrial

jury informed the trial court that it had reached a verdict. The trial court read 

aloud a verdict of death signed by the jury foreman, and the jury collectively 

affirmed that this was indeed its verdict. The trial court then individually polled 

the jurors. When asked whether the verdict was in fact the juror’s verdict, Juror 

No. 1 answered “No.” Asked again, Juror No. 1 reiterated “No.” The trial court 

then polled Jurors No. 2 through No. 6, all of whom responded “Yes.” At this 

point, the trial court stopped and instructed the jury as follows:

It appears that we do not have a unanimous verdict. I’m going to return the 

verdict form to you and ask the jurors to go back into deliberations, please. 

Thank you. 

Just after 2:00 p.m. that afternoon, the jury returned a verdict of death. This time, 

all jurors collectively and individually affirmed that the death verdict was their 

true verdict. Reed argues that the trial court’s actions coerced Juror No. 1 to 

acquiesce in a majority guilty verdict. Specifically, he argues that the court should 

have admonished the jurors that each should arrive at his or her own decision and 

that the jury was not required to reach any verdict. We are not persuaded. 
34

The trial court’s comments were quite benign. They were not marred by

the problems we have recognized in other instructions in potential holdout juror 

situations. (See People v. Valdez (2012) 55 Cal.4th 82, 162 [It is error for 

instruction to deadlocked jury to “single out minority jurors or encourage those 

jurors . . . to consider, along with the arguments and the evidence, ‘their own 

status as dissenters.’ ”], quoting People v. Gainer (1977) 19 Cal.3d 835, 848; 

People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples) [“Coercion occurs where 

‘the trial court, by insisting on further deliberations, expresse[s] an opinion that 

a verdict should be reached.’ ”], quoting People v. Rodriguez (1986) 42 Cal.3d 

730, 775.) Reed argues that the lack of “cautionary instructions” implied that the 

jury needed to reach a verdict. But before deliberations began the court instructed 

the jury that “each of you must consider the evidence for the purpose of reaching a 

verdict if you can do so” and that “each of you must decide the case for yourself.” 

The instructions also told jurors not to “decide any question in a particular way 

because a majority of the jurors, or any of them, favor that decision.” Under the 

circumstances, the initial jury instructions adequately conveyed that jurors did not 

need to reach a verdict, and that they should not acquiesce in a verdict with which 

they did not agree. The trial court therefore did not err in not offering

supplemental instructions when it emerged that the jury’s verdict was not 

unanimous. 

3. Penalty Phase Retrial

Reed contends that retrying the penalty phase after the initial jury 

deadlocked violated his rights under the United States and California 

Constitutions. We have consistently rejected these claims, and see no reason to 

reconsider in this case. (See, e.g., Peoples, supra, 62 Cal.4th at p. 751.)

 
35

4. Assorted Instructional Errors

a. No Preference for the Death Penalty 

Reed argues that the trial court erred when it denied his request for an 

instruction that the law does not have a preference for death. We have repeatedly 

held that trial courts need not include such an instruction in light of the standard 

penalty phase jury instructions. (See, e.g., People v. Watson (2008) 43 Cal.4th 

652, 699.) Reed offers no persuasive reason to rethink our precedent. 

b. Deterrent Value and Monetary Cost of Death Penalty 

Reed also argues that the trial court should have instructed the jury that it 

could not consider the deterrent (or non-deterrent) effect of the death penalty, or 

the cost of executing a defendant versus imprisoning him or her for life. These

instructions are unnecessary, however, when “such considerations are not raised at 

trial.” (People v. McKinnon (2011) 52 Cal.4th 610, 696.) Reed does not contend 

that either party raised arguments related to cost or deterrence, so we reject the 

claim.

c. CALJIC No. 17.41.1 

Reed faults the trial court for instructing the jury using CALJIC No. 

17.41.1, which asked jurors to advise the court if “any juror refuses to deliberate 

or expresses an intention to disregard the law or to decide the case based on 

[penalty or punishment, or] any [other] improper basis.” We disapproved use of 

this instruction in 2002 but have since rejected “claims that the instruction violates 

a defendant’s federal constitutional rights.” (People v. Brady (2010) 50 Cal.4th 

547, 587; see also People v. Wilson (2008) 44 Cal.4th 758, 805-806.) Reed’s trial 

occurred prior to our 2002 opinion, and he fails to persuade that we should 

reconsider our precedent. 
36

d. CALJIC No. 8.85 

Reed argues that the trial court erred by instructing the jury with a version 

of CALJIC No. 8.85 that included inapplicable factors and failed to specify 

whether each factor was aggravating, mitigating, or potentially either. But we 

have long held that the state and federal constitutions do not require trial courts to

provide such a gloss on CALJIC No. 8.85. Reed has not demonstrated why we 

should overturn settled law on the question. (See, e.g., People v. Thomas (2011) 

51 Cal.4th 449, 505 [“ ‘[T]he jury is capable of deciding for itself which factors 

are “applicable” in a particular case.’ ”], quoting People v. Ghent (1987) 43 Cal.3d 

739, 777; People v. Rogers (2009) 46 Cal.4th 1136, 1178-1179 [rejecting claim 

that instructions must advise whether CALJIC No. 8.85 factors are aggravating, 

mitigating, or potentially either].)

e. CALJIC No. 8.88 

Reed argues that CALJIC No. 8.88 is unconstitutional in various respects. 

As he recognizes, we have repeatedly rejected these claims. (See, e.g., People v. 

Linton (2013) 56 Cal.4th 1146, 1211; People v. Coffman (2004) 34 Cal.4th 1, 

124.) Reed offers no reason to conclude otherwise. 

5. Multiple Murder Special Circumstance

The only special circumstance alleged and found true in this case was that 

set forth in section 190.2, subdivision (a)(3) — the so-called “multiple murder” 

special circumstance. Reed argues that the criterion violates the Eighth 

Amendment of the federal Constitution by failing to “genuinely narrow” the 

category of defendants eligible for the death penalty. We have consistently 

rejected this argument, however, and see no reason to rethink those decisions. 

(See, e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 934 [citing past cases].)
37

6. Other Challenges to California’s Death Penalty Law

Reed lodges several other challenges to the constitutionality of California’s 

capital sentencing scheme, all of which he concedes we have previously rejected. 

We are not persuaded to reconsider our precedent. Specifically, we reaffirm that 

the state’s death penalty scheme does not violate the federal Constitution by

failing to sufficiently narrow the class of offenders eligible for the death penalty 

(People v. Winbush (2017) 2 Cal.5th 402, 488); permitting arbitrary and capricious 

sentencing (id. at p. 489); allowing for a death sentence without the jury finding 

beyond a reasonable doubt the existence of aggravating factors, that aggravating 

factors outweigh mitigating ones, or that death is the appropriate penalty (ibid.); 

not requiring written jury findings regarding aggravating factors (id. at p. 490); 

forgoing inter-case proportionality review (ibid.); allowing prosecutors to use 

unadjudicated criminal activity as a factor in aggravation (id. at p. 489); 

employing restrictive adjectives such as “extreme” or “substantial” to describe 

factors in mitigation (People v. Martinez (2010) 47 Cal.4th 911, 968); not 

identifying which factors are aggravating and which are mitigating (ibid.); or 

providing different procedural safeguards to capital and non-capital defendants 

(Winbush, 2 Cal.5th at p. 490). Last, we reaffirm that the state’s use of the death 

penalty does not violate international norms or evolving standards of decency in 

violation of the Eighth and Fourteenth Amendments. (Ibid.) 

7. Reliability of California’s Criminal Justice System

Reed argues that the state’s criminal justice system is too unreliable to 

allow for the imposition of the death penalty. To the extent that Reed challenges 

the strength of the eyewitness identifications of him, we have already rejected the 

claim. (See Sections II.B.1-2, supra.) To the extent he argues that the state’s 

criminal justice system allows for an unconstitutionally high chance of a wrongful 
38

conviction, we recently discussed that claim at some length and rejected it. (See 

People v. Williams (2013) 58 Cal.4th 197, 296.) We see no reason to reconsider. 

8. Method of Execution

Reed argues that California’s use of lethal injection in the administration of 

the death penalty violates the Eighth Amendment. But a “challenge to the method 

of a future execution is not cognizable on appeal, because such a claim does not 

impugn the validity of the judgment.” (People v. Burney (2009) 47 Cal.4th 203, 

270.) 

9. Cumulative Error

Reed argues that the cumulative effect of the errors at his trial requires 

reversal. Because we have found but one error — which was harmless — there is 

no prejudice to cumulate. (See Section II.B.4, supra.) We therefore reject the 

claim. 
39

III. CONCLUSION

We affirm the judgment. 

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

PEÑA, J.*

 

* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
DISSENTING OPINION BY LIU, J.

After the prosecutor used five of his first eight peremptory strikes to excuse 

five of the six black prospective jurors in the jury box, counsel for defendant Ennis 

Reed raised a challenge under Batson v. Kentucky (1986) 476 U.S. 79, 89 and 

People v. Wheeler (1978) 22 Cal.3d 258, 276–277. This pattern of strikes, 

considered in the totality of circumstances, easily raised an inference of 

discrimination, and the trial court should have asked the prosecutor to give his 

reasons for the strikes. I respectfully disagree with the contrary conclusion in 

today’s opinion.

In addition, this case provides another example of the problematic nature of 

eyewitness identification evidence, particularly where such evidence is the sole or 

principal evidence against the defendant. (See People v. Sánchez (2016) 63 

Cal.4th 411, 494–498 (conc. opn. of Liu, J.) (Sánchez).) As explained further 

below, it is time to consider rules that assign the trial court a stronger gatekeeping 

role in this context.

I.

As today’s opinion notes, the trial court erred in requiring Reed to show a 

“strong likelihood” that the disputed strikes were racially motivated. (Maj. opn., 

ante, at p. 10.) In Johnson v. California (2005) 545 U.S. 162 (Johnson), the high 

court rejected this court’s rule that a prima facie case under Batson requires a 

showing that it is “ ‘more likely than not’ ” the strikes were based on 
2

impermissible bias. (Johnson, at p. 168.) The high court explained: “[W]e 

assumed in Batson that the trial judge would have the benefit of all relevant 

circumstances, including the prosecutor’s explanation, before deciding whether it 

was more likely than not that the challenge was improperly motivated. We did not 

intend the first step to be so onerous that a defendant would have to persuade the 

judge—on the basis of all the facts, some of which are impossible for the 

defendant to know with certainty—that the challenge was more likely than not the 

product of purposeful discrimination. Instead, a defendant satisfies the 

requirements of Batson’s first step by producing evidence sufficient to permit the 

trial judge to draw an inference that discrimination has occurred.” (Id. at p. 170.)

The showing required to establish an inference of discrimination at 

Batson’s first step is a “low threshold.” (People v. Scott (2015) 61 Cal.4th 363, 

384 (Scott); accord, Sorto v. Herbert (2d Cir. 2007) 497 F.3d 163, 170 

[“The first step of the Batson analysis, requiring the showing of a prima facie case, 

is not meant to be onerous.”]; Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 

1092 (Paulino) [the showing required at Batson’s first stage “ ‘ “is not 

onerous” ’ ”]; Stacey v. State (Ga. 2013) 741 S.E.2d 881, 841 [same]; People v. 

Hecker (N.Y. 2010) 942 N.E.2d 248, 264 [same]; Valdez v. People (Colo. 1998) 

966 P.2d 587, 596 [same].) The threshold is low because “[t]he Batson framework 

is designed to produce actual answers to suspicions and inferences that 

discrimination may have infected the jury selection process. See [Batson,] 476 

U.S., at 97–98, and n. 20. The inherent uncertainty present in inquiries of 

discriminatory purpose counsels against engaging in needless and imperfect 

speculation when a direct answer can be obtained by asking a simple question.” 

(Johnson, supra, 545 U.S. at p. 172.) The finding of a prima facie case is not 

tantamount to proof or even a presumption of unlawful discrimination; it simply 

prompts inquiry into the prosecutor’s actual reasons for a peremptory strike.
3

The court observes that the factors “especially relevant” to the first-stage 

inquiry “include whether a party has struck most or all of the members of the 

venire from an identified group, whether a party has used a disproportionate 

number of strikes against members of that group, whether the party has engaged 

those prospective jurors in only desultory voir dire, whether the defendant is a 

member of that group, and whether the victim is a member of the group to which a 

majority of remaining jurors belong.” (Maj. opn., ante, at p. 11.) Almost all of 

these factors point to the existence of a prima facie case here. At the time of the 

Batson motion, the prosecutor had used five of his first eight peremptory 

challenges to strike five of the six black prospective jurors in the jury box. The 

prosecutor engaged in voir dire with only one of the five black jurors whom he 

struck. And Reed himself is black. It is evident — and the court does not dispute 

— that these circumstances gave rise to an inference of discrimination. (Cf. 

Paulino, supra, 371 F.3d at pp. 1090–1092 [finding prima facie case where the 

defendant was black and the prosecution had used five out of six peremptory 

strikes to excuse five out of six black jurors while accepting one black juror].)

Today’s opinion nonetheless affirms the trial court’s first-stage ruling by 

resorting to two arguments. First, the court says that the totality of the record, 

including events after the trial court ruled on the Batson motion, dispels “the 

inference of discrimination that might otherwise be drawn from the prosecutor’s 

initial strikes.” (Maj. opn., ante, at p. 12.) Second, the court hypothesizes reasons 

for each of the strikes and concludes that the prosecutor could have had 

“objectively strong reasons for dismissing the prospective jurors.” (Id. at p. 16.) 

Neither argument is persuasive.

A.

While acknowledging that “[t]he prosecutor used five of his first eight 

peremptory strikes (roughly 63 percent) on black jurors, even though such jurors 
4

constituted only 34 percent of the venire,” the court says we cannot limit our 

analysis to the circumstances at the time the trial court ruled on the Batson motion. 

(Maj. opn., ante, at p. 12.) Instead, we must look to “the entire jury selection 

process,” which reveals that “[s]ix of the prosecutor’s thirteen regular juror strikes 

(46 percent) — and seven of sixteen overall (44 percent) — targeted black jurors.” 

(Ibid.) In addition, “the prosecutor first signaled his acceptance of a jury at a time 

when it contained two black jurors, and three black jurors ultimately sat on the 

jury.” (Ibid.)

As an initial matter, I note that this approach — considering events that 

occurred after the trial court ruled on the Batson motion — is at odds with our 

recent statement that “the question at the first stage concerning the existence of a 

prima facie case depends on consideration of the entire record of voir dire as of the 

time the motion was made . . . .” (Scott, supra, 61 Cal.4th at p. 384, italics added, 

citing People v. Lenix (2008) 44 Cal.4th 602, 624.) It is also in tension with our 

holding in People v. Chism (2014) 58 Cal.4th 1266 that analysis of postruling 

developments is “forfeited” on appeal if the defendant did not bring those 

developments to the trial court’s attention by “renew[ing] his Batson/Wheeler

claim.” (Id. at p. 1319.) Chism, like Scott, relied on Lenix’s statement that 

“appellate review is necessarily circumscribed. . . . [T]he trial court’s finding is 

reviewed on the record as it stands at the time the [Batson/Wheeler] ruling is 

made.” (Lenix, at p. 624, quoted in Chism, at p. 1319.) Today’s opinion cuts 

against this statement. Although Chism and Lenix were addressing third-stage 

Batson analysis, there is no reason to think today’s recognition of our obligation to 

“examine the entire record” (maj. opn., ante, at p. 11) should apply only to review 

of first-stage rulings and not to review of third-stage rulings as well. (See Chism, 

at pp. 1350–1352 (conc. & dis. opn. of Liu, J.) [appellate review of third-stage 

ruling requires consideration of postruling developments].)
5

In appellate review of a first-stage ruling, postruling developments can be 

relevant in assessing the significance of a pattern of strikes. “[T]he percentage of 

potential black jurors struck can change depending on when the defendant objects. 

If a black juror ‘is the first person called, and thus the first person struck, all (or 

100%) of the prosecutor’s peremptory challenges will have been exercised against 

African-Americans,’ whereas if the same juror is ‘called at the end of the voir 

dire, the percentage may be far lower.’ ” (Paulino, supra, 371 F.3d at p. 1091.) 

And “the time at which a statistical pattern is pointed out . . . may be relevant to 

the weight of the apparent disparity” between the percentage of strikes used 

against black jurors and the percentage of black jurors in the venire. (Ibid.) 

Today’s opinion applies this line of reasoning. (Maj. opn., ante, at p. 12.)

But it is perhaps inaccurate to say that such reasoning sheds light on 

whether the trial court’s first-stage ruling was correct. The first step in the Batson

framework is to decide whether the prosecutor must state reasons for a disputed 

strike, and the trial court must decide (and can only decide) that question based on 

the circumstances up to that point. Postruling developments, such as the final 

percentage of strikes used on black jurors, are better understood as going to the 

ultimate issue of whether the prosecutor acted with discriminatory intent, not to 

the preliminary issue of whether the prosecutor should have been required to state 

reasons for a strike at the time the challenge was made. Postruling developments 

can provide a basis for denying a Batson claim on appeal — whether or not the 

first-stage ruling was correct when made — if the totality of the record, including 

such developments, permits no reasonable inference that the prosecutor acted with 

discriminatory intent.

In support of this approach, the court cites People v. Garcia (2011) 52 

Cal.4th 706 (Garcia). There, the prosecutor used her first three strikes against 

female jurors, and the defendant filed a Wheeler motion. The trial court found no 
6

prima facie case of discrimination. On appeal, we said the three strikes comprised 

too small a sample for us to infer gender discrimination. (Garcia, at p. 747.) We 

observed that women comprised 56 percent (42 out of 75) of the jury pool, 50 

percent (7 out of 14) of the jurors ultimately struck by the prosecutor, and —

“[m]ost telling” — 83 percent (10 out of 12) of the seated jury. (Id. at p. 748.) 

These circumstances overwhelmingly indicated that the prosecutor did not act with 

discriminatory intent.

The postruling developments in this case are not nearly so compelling. The 

fact that three black jurors ultimately sat on the jury is certainly relevant. But I 

would not say the final percentage of strikes used on black jurors (46 percent in 

the process of selecting the 12-person jury and 44 percent overall, including 

selection of alternates) “only barely” exceeds the percentage of black jurors in the 

venire (34 percent). (Maj. opn., ante, at p. 12.) In any event, the more telling 

comparison is not to the percentage of black jurors in the venire, but to the 

percentage of blacks among those jurors who reached the jury box and could have 

been struck. When selection of the 12-person jury had concluded, 38 jurors had 

been considered; nine of them, or 24 percent, were black. Ten additional jurors, 

including one black juror, were considered in the selection of alternates. So when 

the entire jury selection process had concluded, a total of 48 jurors had been 

considered; 10 of them, or 21 percent, were black. Thus, the final percentage of 

strikes used on black jurors was substantially greater than the percentage of blacks 

among the jurors whom the prosecutor could have struck, whether in the selection 

of the 12-person jury (46 percent versus 24 percent) or in the entire process (44 

percent versus 21 percent). In the end, the prosecutor struck seven of the 10 black 

jurors whom he could have struck. These statistics do not dispel the inference of 

discrimination arising from the initial pattern of strikes.
7

It is true that the prosecutor, after initially using five out of eight strikes to 

remove five out of six black jurors, thereafter used only two out of eight further 

strikes to remove two out of four black jurors. But there is a potential ambiguity 

in the inference to be drawn from postruling behavior that is apparently 

nondiscriminatory. Such behavior may indicate that the prosecutor was acting 

without discriminatory intent all along, or it may indicate that the prosecutor 

shifted his approach after a Batson challenge was made. In some cases, like 

Garcia, the postruling evidence of nondiscrimination is so strong, and the 

preruling evidence of discrimination is so weak, that there is no ambiguity. But 

the ambiguity is certainly present here, where the prosecutor’s pattern of strikes 

before the Batson challenge differs markedly from his strikes afterward.

In light of this ambiguity and the other considerations above, I do not find 

the postruling developments in this case to be so probative as to permit no 

reasonable inference that the prosecutor acted with discriminatory intent. The trial 

court erred in finding no inference of discrimination from the initial pattern of 

strikes, and subsequent developments in jury selection do not dispel that inference.

B.

The other tack the court takes to find no prima facie case of discrimination 

is to hypothesize reasons for each of the disputed strikes. We have said that 

“nondiscriminatory reasons for a peremptory challenge that are apparent from and 

‘clearly established’ in the record . . . and that necessarily dispel any inference of 

bias” are relevant to first-stage analysis. (Scott, supra, 61 Cal.4th at p. 384, 

citations omitted.) But the reasons hypothesized by the court fall far short of 

“necessarily dispel[ling] any inference of bias.” (Ibid.)

It is worth noting at the outset that although our case law has often 

hypothesized reasons for a disputed strike as part of first-stage Batson analysis, the 

United States Supreme Court has never approved this practice. (Cf. Williams v. 
8

Louisiana (2016) 579 U.S. __, __ [136 S.Ct. 2156, 2157] (conc. opn. of Ginsburg, 

J., joined by Breyer, Sotomayor & Kagan, JJ.) [state rule permitting the trial court 

instead of the prosecutor to supply a race-neutral reason at Batson’s second step 

“does not comply with this Court’s Batson jurisprudence”].) In Johnson, the high 

court found an inference of discrimination based on the prosecutor’s removal of all 

three black prospective jurors in a case where a black defendant was charged with 

killing his white girlfriend’s child. (Johnson, supra, 545 U.S. at pp. 164–165.) 

The trial judge’s “own examination of the record had convinced her that the 

prosecutor’s strikes could be justified by race-neutral reasons. Specifically, the 

judge opined that the black venire members had offered equivocal or confused 

answers in their written questionnaires.” (Id. at p. 165.) But the high court 

assigned no weight to the trial court’s hypothesized reasons for the strikes.

Johnson made clear that “[t]he Batson framework is designed to produce 

actual answers to suspicions and inferences that discrimination may have infected 

the jury selection process. [Citation.] The inherent uncertainty present in 

inquiries of discriminatory purpose counsels against engaging in needless and 

imperfect speculation when a direct answer can be obtained by asking a simple 

question.” (Johnson, supra, 545 U.S. at p. 172.) On this point, Johnson quoted 

the Ninth Circuit’s statement in Paulino that “ ‘[i]t does not matter that the 

prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason 

they were stricken.’ ” (Johnson, at p. 172, quoting Paulino, supra, 371 F.3d at 

p. 1090, italics omitted by Johnson.) Paulino said that “[w]hile we may consider 

whether ‘the record contains entirely plausible reasons, independent of race, why’ 

a prosecutor may have exercised peremptories, [citation], such reasons have 

usually helped persuade us that defendant made no prima facie showing where 

defendant challenged the excusal of just one juror.” (Paulino, at pp. 1091–1092.) 

Where there is “a pattern of strikes that raises a plausible inference of 
9

discrimination,” such reasons have less persuasive value. (Id. at p. 1092.) In 

Paulino, as in this case, the prosecutor struck five out of six black jurors. The trial 

court, at Batson’s first step, had engaged in “detailed” evaluation of each strike 

and had found “ ‘objective reasons for all of these jurors to be excused.’ ” (Id. at 

p. 1089.) But Paulino, like Johnson, assigned no weight to such reasons. (Id. at 

p. 1091.)

“Of course, there may be circumstances where the explanation for a 

prosecutor’s strike of a particular juror is so obvious that there is little or no reason 

to think anything else could have motivated the strike. (See, e.g., People v. 

Jones (2013) 57 Cal.4th 899, 982–983 (conc. opn. of Liu, J.) [‘[The struck juror] 

was married to a convicted murderer. None of the seated or alternate jurors had 

anything remotely similar in their backgrounds.’].) In such cases, trial courts need 

not and should not subject prosecutors to idle inquiry; they may swiftly and 

justifiably reject ‘a spurious claim interposed simply for purposes of harassment or 

delay.’ ” (People v. Harris (2013) 57 Cal.4th 804, 872–873 (conc. opn. of Liu, J.) 

(Harris).) But “[b]ecause it is all too easy to comb the record and find some 

legitimate reason the prosecution could have had for striking a minority juror, 

dispelling an inference of discrimination otherwise arising from the totality of 

circumstances ‘requires more than a determination that the record could have 

supported race-neutral reasons for the prosecutor’s use of his peremptory 

challenges.’ (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1110.) . . . . 

‘[I]n light of [Johnson v. California], an inquiry into apparent reasons is relevant 

only insofar as the strikes are so clearly attributable to that apparent, nondiscriminatory reason that there is no longer any suspicion, or inference, of 

discrimination in those strikes.’ (United States v. Stephens (7th Cir. 2005) 421 

F.3d 503, 516.)” (Ibid.)
10

Here, the court’s hypothesized reasons for the strikes of Janice C. and Mary 

C. are underwhelming. Janice C., a systems engineer, was married with one child 

and was “neutral” on the death penalty. Mary C., a retired clerk, was married with 

two children and believed the death penalty “is OK in some case[s].” The court 

posits that the prosecutor might have struck them because Janice C.’s spouse had 

been convicted of a drug offense in 1977 and Mary C.’s husband had been arrested 

or charged with a crime 10 years before Reed’s trial. (Maj. opn., ante, at p. 14.) 

The court also notes that Mary C., on her questionnaire, did not “answer critical 

questions related to her husband’s criminal history.” (Id. at p. 16.) But the 

prosecutor did not ask either Mary C. or Janice C. about these matters during voir 

dire. (Cf. Miller-El v. Dretke (2005) 545 U.S. 231, 250, fn. 8 [“. . . Warren [a 

struck juror] had a brother-in-law convicted of a crime having to do with food 

stamps for which he had to make restitution. [Citation.] [The prosecutor] never 

questioned Warren about his errant relative at all; . . . the failure to ask undermines 

the persuasiveness of the claimed concern.”].)

Reed observes that if the prosecutor’s concern about Janice C. and Mary C. 

had to do with their family members’ arrests or criminal convictions, then the 

prosecutor should have struck similarly situated non-black jurors. It is notable that 

the court addresses this contention not by dismissing the appropriateness or 

relevance of such comparison, but by engaging in comparative juror analysis. 

(Maj. opn., ante, at pp. 15–16.) Today’s opinion is the third time in recent years 

that the court has engaged in such analysis at step one of the Batson inquiry. (See 

Sánchez, supra, 63 Cal.4th at pp. 439–440; Harris, supra, 57 Cal.4th at pp. 836–

838.) This emerging practice implicitly disavows our prior statements that 

comparative juror analysis in evaluating hypothesized reasons at stage one “is 

inappropriate” (Sánchez, at p. 439) or “has little or no use” (People v. Bonilla

(2007) 41 Cal.4th 313, 350). As I have explained elsewhere, such analysis is part 
11

of what it means to consider all relevant circumstances at Batson’s first stage; no 

other jurisdiction has rejected the relevance of comparative juror analysis in 

testing a hypothesized reason for a contested strike; and our case law declining to 

engage in such analysis defies “a mountain of contrary authority.” (Sánchez, at 

p. 492 (conc. opn. of Liu, J.) [collecting cases]; see Harris, at pp. 874–876 (conc. 

opn. of Liu, J.).)

Here, at least three non-black jurors seated on the final jury had relatives 

who had been arrested: Juror No. 2801’s daughter had been arrested for 

possession of drugs; Juror No. 9716’s brother-in-law had been arrested for an 

unspecified misdemeanor; and Juror No. 1923’s brother had been arrested for an 

“unknown” offense. In addition, two alternate jurors had more direct encounters 

with law enforcement than either Janice C. or Mary C.: Juror No. 8989 was 

arrested for disturbing the peace, and Juror No. 0402 was arrested, convicted, and 

sentenced to a fine and probation for possession of an illegal knife. Whether a 

prosecutor would regard these jurors’ experiences with law enforcement as more 

or less disqualifying than a spouse’s 20-year-old conviction on drug charges 

(Janice C.) or a spouse’s 10-year-old arrest or charge for an unspecified crime 

(Mary C.) is a matter of speculation — precisely the kind of “needless and 

imperfect speculation” disapproved by the high court. (Johnson, supra, 545 U.S. 

at p. 172.)

People v. Lancaster (2007) 41 Cal.4th 50 does not support the court’s view. 

There, the juror in question had a nephew who was convicted of robbery murder 

and sentenced to life imprisonment without possibility of parole, and another 

nephew who had been imprisoned for drug offenses. (Id. at pp. 77–78.) Further, 

the defendant’s showing of discrimination was “meager,” with three black jurors 

excused but four black jurors remaining impaneled at the time the Batson

challenge was made. (Id. at p. 76.) We said that “on this record no inference of 
12

group bias appears from the prosecutor’s decision to challenge a prospective juror 

whose family members were serving or had served prison terms.” (Id. at p. 78, 

italics added.) The court overreads Lancaster by quoting the previous sentence 

without the italicized words. (Maj. opn., ante, at p. 16.)

The reasons posited by the court for the strike of Nickey W. are also 

questionable. Nickey W. was a 45-year-old black man employed by Burlington 

Northern Railway; he was married with two children. The court says the 

prosecutor could have been concerned with Nickey W.’s “conflicting” answers 

regarding the proper burden of proof. (Maj. opn., ante, at p. 15.) But in Johnson, 

the high court assigned no weight to the trial court’s finding that “the black venire 

members had offered equivocal or confused answers in their written 

questionnaires.” (Johnson, supra, 545 U.S. at p. 165.) Here, moreover, Juror No. 

1923 gave an answer to a critical question that was no less confused and 

contradictory than Nickey W.’s. Asked if he will follow the trial court’s 

instructions on the law that applies to the case even if he disagrees with it, Juror 

No. 1923 responded “yes” but further explained: “Because I am instructed to 

follow the court instructins [sic] not the law.” The prosecutor accepted this juror 

without seeking clarification in voir dire.

The court cites People v. Sattiewhite (2014) 59 Cal.4th 446 (Sattiewhite), 

but the prosecutor in that case “engaged Prospective Juror P.M. in an in-depth voir 

dire, covering more than five pages of transcript, in which P.M. displayed 

confused, rambling, and incoherent thinking.” (Id. at p. 470.) That juror, we said, 

“exhibit[ed] obvious signs of being unsuitable for the jury.” (Ibid.) Here, the 

prosecutor did not engage Nickey W. in voir dire, and the court does not say his 

questionnaire answers were so confused or incoherent that he was obviously 

unsuitable for the jury.
13

The court’s hypothesized reasons could have given the prosecutor 

“reasonable concern” (maj. opn., ante, at p. 14) or “ ‘legitimate concern’ ” (id. at 

p. 15), and “[t]he prosecutor could have readily concluded” that the black jurors 

should be removed for those reasons (id. at p. 16). But in order to dispel an 

inference of discrimination at Batson’s first step, more is required. The posited 

reasons must be ones “that are apparent from and ‘clearly established’ in the 

record and that necessarily dispel any inference of bias.” (Scott, supra, 61 Cal.4th 

at p. 384, citations omitted.) The court’s loose reasoning in support of its 

hypothesized reasons includes citation to cases decided under the wrong (i.e., preJohnson) legal standard for first-stage analysis. (Maj. opn., ante, at pp. 13–15, 

citing People v. Panah (2005) 35 Cal.4th 395, 440–441, and People v. Farnam

(2002) 28 Cal.4th 107, 138.) And today’s opinion is devoid of the confident 

language we have used in other cases relying on hypothesized reasons. (See, e.g., 

Scott, at p. 385 [“we doubt that any prosecutor would have kept R.C. on the jury” 

because the prosecutor “had successfully prosecuted R.C.’s son a year or two 

earlier and had committed her son to prison — with the assistance of the same lead 

investigator who would be testifying in the current prosecution”]; ibid. [“The 

record also established compelling reasons to excuse H.R., who in his 

questionnaire said he was so opposed to the death penalty as to be unwilling to 

impose it under any circumstances.”]; People v. Taylor (2010) 48 Cal.4th 574, 644 

[“the record . . . shows obvious race-neutral reasons for the excusal of all three of 

the prospective jurors in question”]; Sattiewhite, supra, 59 Cal.4th at p. 470 [the 

juror “exhibit[ed] obvious signs of being unsuitable”].) Today’s opinion does 

exactly what the high court says we should not do: it indulges “the imprecision of 

relying on judicial speculation to resolve plausible claims of discrimination.” 

(Johnson, supra, 545 U.S. at p. 173.)
14

In sum, at the time the Batson challenge was made, the trial court should 

have asked the prosecutor to state his reasons for striking five out of six black 

jurors. In some cases, an available remedy for first-stage Batson error is a remand 

for the trial court to complete the Batson analysis. (See, e.g., Madison v. 

Commissioner, Ala. Dept. of Corrections (11th Cir. 2012) 677 F.3d 1333, 1339; 

Paulino, supra, 371 F.3d at p. 1092.) But a remand likely is not practical here 

because the trial occurred almost 20 years ago. (Cf. Snyder v. Louisiana (2008) 

552 U.S. 472, 486 [no “realistic possibility” that the question of whether 

discriminatory intent was the determinative cause of the disputed strike “could be 

profitably explored further on remand at this late date, more than a decade after 

petitioner’s trial”].) I acknowledge that reversal of the judgment is a severe 

remedy for this kind of error. But there are no other options for giving meaningful 

effect to Batson’s mandate. As a result of the trial court’s error, we cannot be 

confident that Reed was convicted by a jury selected without regard to race.

II.

In challenging the sufficiency of the evidence as to both murders, Reed 

contends that the Vasquez murder conviction was wholly based, and the Moreland 

murder almost wholly based, on unreliable eyewitness testimony. As the court 

notes, the sufficiency standard is not a high bar; as long as the evidence can 

reasonably support the verdict, we defer to the jury’s credibility determinations 

and weighing of the evidence. (Maj. opn., ante, at pp. 20–22.)

But reliance on uncorroborated eyewitness testimony remains problematic. 

“[M]istaken eyewitness identifications have played a role in a substantial number 

of wrongful convictions and unsolved crimes.” (Sánchez, supra, 63 Cal.4th at 

p. 498 (conc. opn. of Liu, J.), citing Garrett, Convicting the Innocent: Where 

Criminal Prosecutions Go Wrong (2011) p. 48 [finding that 190 of the first 250 

inmates exonerated by DNA testing since 1989 were misidentified by an 
15

eyewitness].) The limited nature of sufficiency-of-the-evidence review is poorly 

suited to detect or prevent miscarriages of justice that may result from erroneous 

eyewitness identification. Such review is premised on our trust in jurors’ ability to 

make sound credibility determinations. But the jury’s ability to perform that 

function with regard to eyewitness testimony is questionable. “We presume that 

jurors are able to detect liars from truth tellers. But as scholars have cautioned, 

most eyewitnesses think they are telling the truth even when their testimony is 

inaccurate, and ‘[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he 

or she will not display the demeanor of the dishonest or biased witness.’ 

[Citation.] Instead, some mistaken eyewitnesses, at least by the time they testify at 

trial, exude supreme confidence in their identifications.” (State v. Henderson (N.J. 

2011) 27 A.3d 872, 889 (Henderson).)

The limitations of sufficiency-of-the-evidence review suggest that the 

problem needs to be addressed upstream. One possible solution is to revise 

eyewitness jury instructions to more closely align with research into the 

limitations of eyewitness evidence. (See, e.g., Sánchez, supra, 63 Cal.4th at 

pp. 495–498 (conc. opn. of Liu, J.) [arguing that the part of CALJIC No. 2.92 that 

links reliability of eyewitness testimony to the witness’s degree of certainty should 

be reexamined in light of research demonstrating a lack of such correlation]; 

Henderson, supra, 27 A.3d at pp. 925–926 [urging modification of jury 

instructions in accordance with generally accepted scientific evidence].) But 

given the documented problems with eyewitness testimony and the extent to 

which jurors rely on it (see Henderson, at p. 889 [“ ‘there is almost nothing more 

convincing [to a jury] than a live human being who takes the stand, points of 

finger at the defendant and says, “That’s the one” ’ ”], I am not sure we can rely 

solely on jury instructions to adequately address the issue.
16

The adoption of best, or at least better, practices by law enforcement can 

help prevent false eyewitness identification. For example, there is a general 

consensus that identifications made through photo lineups or live lineups should 

be videotaped and that the person operating the lineup should not be aware of who 

the suspect is in order to avoid consciously or unconsciously cuing the witness. 

(California Commission on the Fair Administration of Justice, Final Report (2008) 

p. 27.) But there is little that courts can do to induce law enforcement to adopt 

these practices unless courts themselves subject such evidence to greater scrutiny. 

Fortunately, there is a substantial body of high-quality research on visual 

perception and memory to inform such scrutiny by courts, including a 2014 report 

by the National Academy of Sciences. (Nat. Research Council, Identifying the 

Culprit: Assessing Eyewitness Identification (2014).)

The problematic nature of eyewitness evidence has led some state high 

courts to assign trial courts a stronger gatekeeping role in the admission of such 

evidence. Of course, courts have the power to exclude evidence when its 

probative value is substantially outweighed by its prejudicial effect (Evid. Code, 

§ 352), and courts can exercise the power to exclude eyewitness evidence when, 

for example, blatantly suggestive lineup procedures make the identification 

unreliable. But the New Jersey and Oregon high courts, recognizing the special 

problems posed by eyewitness evidence, have gone further.

In Henderson, the New Jersey Supreme Court held that defendants can 

obtain a pretrial hearing on the admissibility of eyewitness evidence if they can 

show some evidence of suggestiveness that could lead to mistaken identification. 

If the defendant makes that showing, then the state must offer proof on the 

reliability of the identification, with the defendant carrying the ultimate burden to 

prove “a very substantial likelihood of irreparable misidentification.” (Henderson, 
17

supra, 27 A.2d at p. 920.) If the defendant meets the burden, then the evidence 

should be suppressed. (Ibid.)

The Oregon Supreme Court has taken a somewhat different approach based 

on Oregon’s Evidence Code. When a defendant has filed a pretrial motion to 

exclude eyewitness evidence, the trial court must determine by a preponderance of 

the evidence whether the eyewitness identification was “rationally based” on the 

witness’s perceptions. (State v. Lawson (Or. 2012) 291 P.3d 673, 693 (Lawson).) 

The court may consider evidence of close observation of the suspect’s face 

supporting such a determination. (Ibid.) On the other hand, observations of nonfacial features like race, height, weight, clothing, or hair color “generally lack the 

level of distinction necessary to permit the witness to identify a specific person as 

the person whom the witness saw.” (Ibid.) If the state meets this threshold but the 

defendant introduces competing evidence to undermine the reliability of the 

identification, then the state “must establish by a preponderance of the evidence 

that the identification was based on a permissible basis rather than an 

impermissible one, such as suggestive police procedures.” (Ibid.)

Although I express no definitive view on the merits of these approaches or 

others, I continue to believe the issue of eyewitness identification “deserves our 

careful attention.” (Sánchez, supra, 63 Cal.4th at p. 498 (conc. opn. of Liu, J.).) 

This case illustrates some of the problems. There were several features of the 

identifications that called their reliability into question: the witnesses were under 

a high level of stress; in the case of the Vasquez murder, the witness’s attention 

was likely focused on the gun threatening him; the assailant was viewed under 

poor lighting conditions and at a considerable distance; there are questions about 

whether the witnesses viewed Reed’s face clearly; cross-racial identification was 

involved; the time between the occurrence of the crime and the identification of 

the photo lineup was several months; and the witness in the Moreland murder was 
18

intoxicated. (See Henderson, supra, 27 A.3d at pp. 921–922 [discussing factors 

affecting reliability of eyewitness identifications]; Lawson, supra, 291 P.3d at 

pp. 688–689 [same].) 

The eyewitness evidence in this case could have benefited from the kind of 

screening that New Jersey and Oregon have adopted before it was allowed to go to 

the jury. The facts of this case illustrate both the stakes involved in eyewitness 

identification and the challenges such evidence presents. The time has come for 

the Legislature, the Judicial Council, or this court to develop principles that guide 

the admissibility of eyewitness identification evidence.

LIU, J.
DISSENTING OPINION BY KRUGER, J.

I respectfully dissent from the court’s judgment for the reasons expressed in 

Justice Liu’s dissenting opinion. (See dis. opn. of Liu, J., ante, pt. I.)

KRUGER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Reed

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S082776

Date Filed: May 7, 2018

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: John Joseph Cheroske

__________________________________________________________________________________

Counsel:

Gail Harper, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney 

General, Sharlene A. Honnaka and William H. Shin, Deputy Attorneys General, for Plaintiff and 

Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gail Harper

P.O. Box 330057

San Francisco, CA 94133

(415) 291-8469

William H. Shin

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6077