Supreme Court of California Justia
Citation 44 Cal. 4th 1263, 190 P.3d 616, 82 Cal. Rptr. 3d 265
People v. Carasi

Filed 8/25/08



Plaintiff and Respondent,




Los Angeles County

Defendant and Appellant.

Super. Ct. No. SA021795

Paul Joe Carasi (defendant) and his live-in girlfriend, Donna Lee

(codefendant or Lee), were charged, tried, and convicted in the same proceeding

of committing two first degree murders on Mother’s Day 1995. (Pen. Code,

§ 187.)1 The victims were defendant’s mother, Doris Carasi (Doris), and his

former girlfriend, Sonia Salinas (Sonia), the mother of his child. As to each

murder count, the jury returned a lying-in-wait special-circumstance finding

(§ 190.2, subd. (a)(15)), and a finding of personal use of a deadly weapon, i.e., a

knife. (§ 12022.). With respect to Sonia’s murder, the jury also found true the

special circumstances of multiple murder (§ 190.2, subd. (a)(3)), and murder for

financial gain. (§ 190.2, subd. (a)(1).) After a joint penalty trial, the jury returned


All unlabeled statutory references are to the Penal Code except as otherwise



a death verdict against defendant, but not against codefendant Lee.2 The trial

court denied defendant’s automatic motion to modify the penalty verdict.

(§ 190.4, subd. (e).) The present appeal from the death judgment is automatic.

(Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)

We find no prejudicial error at defendant’s trial. The judgment will be

affirmed in its entirety.


A. Summary

Prosecution evidence showed that defendant and Lee planned to kill Sonia

and Doris, to make the crime look like a robbery, and to place the blame on

unknown third parties. The knife slayings occurred in a remote section of the

parking garage at the Universal Studios CityWalk Mall in Burbank (Universal or

Mall), after defendant took the victims, along with his and Sonia’s two-year-old

son, to a late-night Mother’s Day meal. The child was unharmed, but defendant

was found covered in the women’s blood in the garage, claiming to be a victim of

the same “robbery” as the two women. Lee, who had waited in the garage for the

group to return from dinner, participated in the knife attack and then drove off

with defendant’s and the victims’ personal property. Lee’s getaway was

frustrated, however, and the plot began to unravel, when she was forced to

summon emergency medical aid from the highway for serious wounds sustained in

the attack. According to the prosecution, defendant murdered the victims because


The penalty jury could not reach a unanimous verdict as to codefendant

Lee. The vote was split 10 to 2 in favor of death. The prosecution declined to
retry Lee, and she received a sentence of life without the possibility of parole for
each murder count. She is not a party to this automatic appeal.


he believed they were trying to keep him from his son, and because he could not

afford to pay court-ordered child support to Sonia in his debt-ridden state.

B. Prosecution Case

1. The Crime Scene

Shortly after 11:00 p.m. on May 14, 1995, Mother’s Day, both the security

office at Universal and a nearby sheriff’s station received reports of criminal

activity in the parking garage — an area which, unlike the Mall, had no security

cameras. Persons who arrived on the scene included Deputy Sheriff Tom Wilford,

security officer Joseph Hildebrand, and Darren Smith, an employee in the Mall.

At trial, Smith and Deputy Wilford gave similar accounts. On the fourth

floor of the garage, defendant was lying on the ground near the stairwell. He

pointed to the fifth floor, and told Smith, “My kid is up there.” Defendant said

something different to Wilford, who arrived moments later — “They killed them.”

Defendant was drenched in fresh blood. Wilford testified that it covered

defendant “from his head to his toes,” including his face and hands. Smith

recalled that defendant slipped in the blood as he moved and tried to stand.

Smith testified that after finding defendant, he climbed the stairs to the fifth

floor. Smith saw bloodstains in the stairwell. He also found a large folding knife

on the steps, with the blade closed and no blood on it. A short time later, in front

of Officer Hildebrand, defendant spontaneously said the knife was his.

The fifth floor served as the roof of the garage, and was not itself fully

covered. There, Smith, Deputy Wilford, and Officer Hildebrand saw a blue, four-

door Chevrolet Caprice, later identified as defendant’s car. It was parked in the

corner against the wall, out in the open air. A few other vehicles were parked on

the same floor, but none was near the Caprice.

Both doors on the driver’s side of the car were open. A small boy was

strapped in a car seat behind the driver’s compartment. He was crying, but


seemed physically unharmed. In the presence of Smith, Deputy Wilford, and

Officer Hildebrand, the child screamed “Mommy” repeatedly, and pointed

towards the passenger side of the car.

There, in a small space enclosed on three sides by the car and garage walls

and railing, the witnesses found two women lying in large pools of blood. They

bore stab wounds and appeared to be dead. The bloody trail that Smith had seen

downstairs and in the stairwell continued onto the fifth floor, near the bodies.

Deputy Wilford summoned more law enforcement support. Meanwhile,

defendant arrived on the fifth floor. He paced and shook his hands at one point,

and sat on the ground rocking back and forth at another point. At Wilford’s

request, Officer Hildebrand watched and comforted defendant. Defendant

identified the two women and the boy. Defendant indicated that he was not hurt,

and did not know why he was so bloody. He denied touching the injured victims.

Defendant described the following events to Officer Hildebrand: He

unlocked the car for his family after they returned from dinner. Just as he realized

he did not have all of his keys, defendant was shoved from behind by someone

who demanded money. Though defendant said he had no money, the assailant

removed defendant’s fanny pack from his shoulder and pushed him to the ground.

Defendant stood up and saw Sonia and Doris lying in pools of blood. He headed

downstairs to get help. Defendant heard male voices and the victims’ screams

during the attack, but could not describe the number or appearance of his

assailants, or the manner in which they left the scene.

Paramedics arrived on the fifth floor of the garage a short time later. One

of them, Alan Lenhart, testified that, after determining that the women were dead

and the child was unharmed, he and his partner examined defendant, removing his


jacket and shirt — a shirt with Disney characters on the front.3 The only visible

injury was a small cut on his thumb. The cut was not bleeding and, in Lenhart’s

view, could not account for all the blood on defendant. In response to questions,

defendant sometimes moaned or cried out. Other times, however, he seemed calm

and gave clear answers. Lenhart testified that this pattern was unusual. In his

experience, traumatized persons act either withdrawn or upset, but not both.

When the paramedics spoke about canceling an ambulance, defendant seemed

surprised and asked whether his mother was alive.

In his exchange with Lenhart, defendant repeated much of what he had said

to Officer Hildebrand, but added or changed certain details. In the later version,

defendant said for the first time that he leaned inside the car to kiss Sonia, turned

to go downstairs to retrieve the ignition key from the restaurant, and was grabbed

by the hair from behind and sat upon after being pushed down. Contrary to his

prior account, defendant also told Lenhart that the person who attacked him was

not the same person who demanded money.

2. Events Preceding the Crime

In 1991, defendant and Sonia began dating. They both worked for the

Bank of America (Bank) in its check processing center in downtown Los Angeles.

When Sonia became pregnant, she moved into the North Hollywood apartment

defendant shared with his mother, Doris. The couple continued living there after

their son, Michael, was born in January 1993.


Criminalist Beverly Kerr, who arrived at Universal after the paramedics

examined defendant, testified that she recovered a pile of clothing and towels from
the fifth floor of the garage, including the long-sleeved Disney shirt that defendant
had apparently worn. The Disney shirt was saturated with blood on the front and
cuffs, and bore a bloody handprint. As discussed below, scientific testing linked
most of these stains to Sonia.


In mid-1993, when Michael was about six months old, Sonia became quite

ill. She was hospitalized for long periods during which Doris cared for Michael.

After Sonia left the hospital, her relationship with defendant soured. She moved

with Michael to her family’s home in West Hollywood, and brought him to visit

Doris at her apartment on weekends.

Defendant disliked Sonia’s new living arrangements, and feared her family

might prevent him from seeing his son. According to Sonia’s manager, Martha

Dominguez, defendant said he was willing to kill to prevent such interference.

Defendant told a coworker, Robert Mora, that he wished “that bitch,” Sonia, had

“died” in the hospital. Sonia resumed working at the Bank in mid-1994.

The evidence suggested defendant was controlling and volatile at times,

especially toward women. Dominguez and Mora each described one instance in

which they saw or heard about defendant either violently grabbing or verbally

abusing his mother. Mora testified that defendant sexually propositioned many

women at work. One of them, Wendy Osiow, testified that she complained to

superiors about defendant. In testimony echoed by other coworkers, Nicholas

Latimer described defendant as a “wanna-be cop” who carried a police scanner

and whose car looked like an unmarked police vehicle. According to Latimer,

defendant liked to drive his car to Hollywood and scare street prostitutes into

thinking they were being watched by the vice squad.

Sometime in fall 1994, defendant began dating codefendant Lee, a married

coworker who knew many of the same people as defendant and Sonia. Lee moved

into the apartment defendant shared with his mother, Doris, and decided to divorce

her husband.

Meanwhile, Sonia obtained a court order directing defendant to pay her

$375 in monthly child support and requiring the money to be deducted from his

wages. To facilitate this process, defendant and Sonia both signed a letter, dated


December 1, 1994, asking the Bank to deduct one-half of the amount defendant

owed Sonia from each of his two monthly paychecks, and to place the money in

her checking account. This arrangement, which the couple’s letter referred to as

“garnishment,” took effect immediately.

Over the next few months, defendant experienced mounting financial

strain. He earned a gross salary of $1,886 a month, or $22,632 a year. After

deductions, including child support, his net pay totaled $960 a month. On May 8,

1995, six days before the crime, he had $271 in his checking account and $265 in

his savings account.

At the same time, defendant owed over $21,000 in consumer debt. In

addition, defendant and Lee jointly obtained a Household Finance loan in late

1994. The original balance of $10,000 remained unpaid in May 1995.

Defendant resented Sonia as a result of the wage garnishment. One of his

supervisors, Lydia Moreno, testified that defendant said he could not pay his bills

because of child support payments, that creditors called him at work, and that he

was “fucked for the next seven years, because he was going to have to file

bankruptcy.” Osiow overheard defendant say he wished Sonia “were dead” to

avoid giving her “half [his] stuff.” Defendant told Latimer many times that Sonia

was a “bitch” and a “whore” because of the money deducted from his paycheck.

At some point before February 1995, while confiding in Dana Shafer, one

of his managers, defendant asked if the Bank made “legal referrals” to help answer

child custody and support questions. In late March or early April 1995, defendant

discussed whether to declare bankruptcy with an attorney, Rene Lopez de

Arenosa. Codefendant Lee was present during this meeting.

Defendant and Lee were both upset with Sonia about parenting issues.

Coworker Deborah Trudeau testified that Lee became agitated when she once saw

Sonia with defendant’s son, Michael, at work. Both Lee and defendant


complained to Trudeau, Osiow, and others that Sonia was impeding visitation with

Michael. According to his friend Mora, defendant said, “Fuck that bitch. She

won’t get away with taking my kid. I’ll get her one day.” Defendant told his

manager, Shafer, that Sonia “wasn’t going to be around” to challenge custody.

In April 1995, relations further deteriorated between defendant and Lee on

the one hand and Sonia and Doris, on the other hand. The events were relayed at

trial by supervisors and coworkers (e.g., Dominguez, Moreno, and Trudeau) who

learned about them from Sonia, Lee, or defendant.

Following an argument, Doris ordered defendant and Lee out of her

apartment. They moved to a unit across the hall in the same building. The

incident triggered heart problems in Doris, who was briefly hospitalized.

Afterwards, over the Easter weekend, Sonia stayed in Doris’s apartment and cared

for her. Defendant approached Sonia on Easter Sunday, April 16, 1995, and asked

her to take a drive with him. He then disclosed his sexual relationship with Lee.

Sonia became upset and “backhanded” defendant. When they returned to the

apartment complex, defendant acted like he was having a seizure and was helped

to his apartment by two bystanders. When Doris tried to see defendant, Lee would

not let her inside the door, and the two women physically fought one another.

Defendant subsequently talked about getting a restraining order against Doris.

On May 5, 1995, Sonia and Michael moved into Doris’s apartment,

planning to stay one week. According to Sonia’s family, she and Doris were

considering leaving North Hollywood and relocating together, with Michael, in

either Whittier or San Francisco.

The next day, May 6, 1995, which was about a week before the murders,

defendant and Lee were seen walking with one another at Universal by two Bank

managers, Adrienne Gavura and Shafer, who went there together with friends.

Gavura testified that defendant and Lee seemed shocked by the encounter. Shafer


testified that defendant and Lee looked guilty. The same week, another coworker

overheard Lee say she was “going to do something stupid” for which she would go

“to prison.” Both defendant and Lee had scheduled one week’s vacation from

work beginning Monday, May 15, 1995.

On Sunday May 14, 1995, defendant took Sonia, Doris, and Michael to the

Country Star restaurant at Universal. When they entered the garage at 8:51 p.m.,

ample parking was available in areas much closer to the restaurant than the rooftop

on which the car was later found. Their waitress commented to a coworker that

defendant was acting strange. At trial, she recalled that he ordered the “strongest”

drink on the menu (a seven-liquor ice cream treat) before dinner. Also, he was

patient with his fidgety son and brusque toward the women. They left the

restaurant around 10:45 p.m.

Meanwhile, codefendant Lee drove to Universal that night, entering the

garage at 9:57 p.m. A few minutes earlier, at 9:49 p.m., a brief call was made

from a pay phone located inside the Country Star Restaurant to defendant’s cell

phone, and was charged to his home phone number. The same cell phone was

found in Lee’s car later that night, as discussed below. The hostess at Tony

Roma’s restaurant, which is located between the Country Star restaurant and the

parking garage, testified that she twice saw Lee walking fast toward the garage

that night with a grave expression on her face.

3. Discovery of Lee and Evidence along Highway 170

At 11:20 p.m. on May 14, 1995, shortly after the crime, two California

Highway Patrol officers arrived at callbox 166 along Highway 170, five miles

from Universal. They were responding to an emergency call from codefendant

Lee, who reported being robbed and stabbed at that spot. The officers found Lee

lying on the ground near her car, on top of a jacket, with her hands to her side.

The car was locked with the keys inside. Lee moaned in pain, and muttered


something about there being “nothing [she] could do” and not knowing “what

happened.” She had suffered an abdominal laceration from which she was

bleeding and from which her intestines protruded. The officers dressed the wound

and called paramedics.

After Lee was taken to the hospital, and additional investigators arrived on

the scene, a search was made of the ivy-covered embankment that sloped down

from the road. The search produced two fanny packs, one belonging to defendant

and the other to Doris, and Sonia’s purse. These items were covered in blood.

Other bloodstained items found nearby included a knife with a blunted tip, a blue

sweater, a latex glove, a washcloth, and a pair of wool gloves. Inside Lee’s car,

investigators found defendant’s cell phone in the center console, and Lee’s fanny

pack and two plastic Ziploc baggies under the driver’s seat — all bloodstained.

4. Postcrime Investigation

On May 15, 1995, the day after the murders, defendant visited Sonia’s

family. He was overheard telling someone on the telephone that he was “going to

jail for a lot of years for this.”

On May 15 and 16, Lee spoke with homicide detectives while awake and

coherent in the hospital. She first denied knowing about her injuries or the items

found along Highway 170, and later screamed profanely at the officers to leave her

alone. The clothing she wore when admitted to the hospital was bloodstained and

had cuts in it. It was obtained by investigators and subjected to scientific testing,

as discussed below.

Around the same time, officers saw defendant visiting Lee in the hospital,

where they photographed cuts on his hands. They also obtained the jeans and

jacket he wore the day of the murders. Both items were bloodstained. The jacket

had cuts in it. The clothing underwent scientific testing, as discussed below.


Detectives arrested defendant on May 18, 1995. While being transported to

jail and passing the courthouse, defendant turned to one of the detectives and

asked what he “would get,” or words to that effect, if he pled guilty. During the

booking process, defendant said he wanted to talk to codefendant Lee. Detectives

arranged the call and heard him say, “Remember what we talked about.”

5. Autopsy Results and Forensic Evidence

Defendant’s mother, Doris, sustained multiple penetrating stab wounds to

the chest and back. Her most serious injury was a gaping knife wound to the

throat that had been inflicted in a sawing motion, and that nearly decapitated her.

It would have quickly caused death, and was likely inflicted last. Doris had no

defensive knife wounds on her hands.

Serological testing, including DNA analysis, established that Doris’s blood

was consistent with blood found on the rear seat of defendant’s car, on the Disney

shirt he apparently wore the day of the crime, on the jeans defendant and

codefendant Lee wore the same day, and on one of the wool gloves found near Lee

along Highway 170.

Sonia Salinas was stabbed through the chest to the breast bone. She also

suffered numerous deep incisions to her face and throat that intersected in the

neck. Her carotid arteries and jugular vein were cut. These injuries would have

quickly caused death and probably occurred last. Sonia had several deep

defensive knife wounds on her hands.

Serological and DNA analysis established that Sonia’s blood was consistent

with blood found on the front seat of defendant’s car, on the Disney shirt

(including the bloody handprint), on defendant’s jeans and jacket, and on the

bloody trail running between the areas at the crime scene where defendant and the

victims were found. Sonia’s blood also was consistent with blood found on items


tossed along Highway 170, including the knife, defendant’s fanny pack, the latex

glove, and the plastic baggies found under the front seat of Lee’s car.

Codefendant Lee suffered an evisceration in which the knife had been

thrust deeply into the abdomen and moved around. She sustained another stab

wound to the back, and a large cut on the inside of the left leg, above the ankle.

Serological tests, including DNA analysis, established that Lee’s blood was

consistent with blood found on Sonia’s left shoe at the crime scene, and on items

found along Highway 170. Such items included the fanny packs belonging to

defendant and Doris, Sonia’s purse, the blue sweater, one of the wool gloves, and

the plastic baggies found inside Lee’s car.

Defendant Carasi suffered cuts on both hands. Serological testing,

including DNA analysis, established that his blood was consistent with blood

found on the Disney shirt, on his jeans and jacket, and on the bloody trail at the

crime scene. Defendant’s blood also was consistent with blood found on his fanny

pack and the blunt-tipped knife recovered along Highway 170, and on the plastic

baggies found in Lee’s car.

Dr. Eugene Carpenter, the pathologist who performed the autopsies, opined

that each victim was restrained against a hard object. He testified that most knife

fatalities involve injuries near the heart, not the throat, and that the large number

of wounds sustained by Sonia and Doris was rare. On direct and cross-

examination, the witness associated such injuries with domestic disputes and other

crimes of passion. Dr. Carpenter further testified that defendant suffered at least

one palm injury consistent with a “knifer’s wound,” which occurs when the knife

strikes bone, and the hand slides down the handle onto the blade. Cuts on Sonia’s

hands were consistent with her having repeatedly deflected and grabbed the blade.

Steven Dowell, a criminalist specializing in tool mark analysis for the

coroner’s office, compared the knife found along Highway 170 to the victims’


injuries. Several of Doris’s wounds were consistent with the depth and width of

the knife’s blade. The blunted tip could have left certain irregular abrasions on

Sonia’s skin. No wound was inconsistent with the suspected murder weapon.

Elisabeth Devine, a crime reconstruction specialist with the sheriff’s

department, opined that Sonia and Doris were probably first attacked inside the car

on the passenger side, and that each victim ended up outside the car, where they

received their lethal neck wounds. Devine believed more than one assailant was

involved. It was likely that Sonia left the bloody handprint on the Disney shirt

while grasping at her attacker, and that Sonia’s shoe was in motion when it came

in direct contact with blood from codefendant Lee’s wounds.

C. Defense Case

Defendant did not testify at trial. He called two witnesses, both of whom

also testified for the prosecution, to suggest that he did not kill the victims, and

that law enforcement bungled the investigation. First, Sonia’s sister, Maria,

testified that defendant was upset when visiting her house the day after the

murders. He was curled up on the floor, screaming and grabbing at a neighbor

who sat nearby. Defendant’s other witness, Criminalist Beverly Kerr, indicated

that serological testing was not performed on every bloodstain found on the

Disney shirt or near defendant’s car at the crime scene.4


Codefendant Lee testified on her own behalf, and denied involvement in the

murders. She described a tumultuous affair with defendant, including odd sex
practices, financial problems, and disputes with Sonia and Doris. According to
Lee, she and defendant argued 10 days before the crime, and tried to reconcile at
Universal on May 6, 1995. On May 14, the night of the murders, she agreed to
meet defendant, Sonia, and Doris at Universal to discuss future plans. Lee
testified that she parked near defendant’s car, and looked for the group in the Mall,
but never saw them. Back in her car, she fell asleep and awoke when some
unknown person, possibly a carjacker, grabbed and attacked her. She sped away,
and stopped along Highway 170, injured and in pain. Lee denied stabbing the

(footnote continued on next page)



A. Prosecution Case

Evidence was introduced about the effect of Sonia’s murder on persons

close to her. Sonia’s parents and two sisters described Sonia as a loving, giving,

and devoted member of a close-knit family, which continued to mourn her loss.

They testified that she fought to overcome her own illnesses and insecurities,

worked hard at home and the office, and sought to improve herself to provide a

better life for her son, Michael. According to these witnesses, Michael, who was

five years old at the time of trial, suffered from memories of seeing his father kill

his mother and grandmother, and yearned for his mother’s love. Also, Sonia’s wit,

drive, tenacity, and generosity were described by Martha Dominguez, the Bank

manager who hired Sonia and became her close friend. The jury saw a video

showing still photographs of both murder victims.

B. Defense Case

Defendant, who was 30 years old at the time of the crime, called three male

friends from his boyhood. They described his hobbies (e.g., computers, science

fiction, and Disneyland), compassion (e.g., helping neighbors after an earthquake),

and family ties (e.g., grieving when his father died in the early 1990’s).

(footnote continued from previous page)

victims or disposing of any evidence, and had no memory of being stabbed or
possessing bloody items from the crime scene. A psychologist described possible
emotional reasons for Lee’s amnesia. Lee’s other witnesses, some of whom
testified for the prosecution, indicated that two bloodstained washcloths were
found near callbox 166 on Highway 170 two weeks after the crime. On rebuttal,
the prosecution linked bloodstains on one of the washcloths to Lee.


Defendant’s manager at the Bank from 1989 to 1993 testified that he was a

model employee who volunteered for charitable events. Similar testimony was

given by a married couple who employed defendant in their photography studio

starting when he was in high school. Shortly before the murders, defendant and

codefendant Lee had visited this couple and spoke about starting a photography


Defendant called a female friend of Lee’s who testified that Lee said

defendant made her feel happy.5


A. Jury Selection

1. Procedural Background

Jury selection started with about 450 prospective jurors. Consistent with

the law at the time, the trial court conducted all questioning. (See People v. Stitely

(2005) 35 Cal.4th 514, 537, fn. 11 (Stitely).) It occurred in four stages.

The first stage involved screening for financial and physical hardship, and

exposure to pretrial publicity. Because the pool initially was so large, prospective

jurors were divided into smaller groups at the start of this phase. Each group of

prospective jurors received special instructions when they first entered the

courtroom. As discussed further below, they learned that the case involved two


Codefendant Lee, who was about 15 years older than defendant, presented

testimony from female relatives and a female friend that Lee suffered verbal and
physical abuse by her father, sexual abuse by her grandfather, physical abuse by
her first husband, and marital strife with her second and third husbands. The
psychologist who testified for Lee at the guilt phase opined that she was
traumatized by past abuse, that she found emotional refuge with defendant (despite
their odd sex life), and that she went into a dissociative state and suffered amnesia
following a fight with defendant before the capital crime.


killings at Universal on Mother’s Day 1995, and that defendant had been charged

with two murder counts and three special-circumstance allegations.

Second, the trial court conducted preliminary death penalty screening. In

this phase, prospective jurors completed a four-question form asking whether they

would refuse to sustain either a murder conviction or the special circumstances to

avoid a penalty phase, or would automatically impose a death sentence or life

without the possibility of parole (LWOP) regardless of the aggravating and

mitigating evidence.6 They were orally examined, and some were excused for

cause, based on their answers on this preliminary death penalty questionnaire.

The third phase involved general voir dire of the 100 or so prospective

jurors who survived the first two rounds. They completed the lengthy main

questionnaire covering many topics, including the death penalty.7 The court

instructed them again on the two murder counts and the three special

circumstances. It also named both victims. The court then randomly called a

series of 12 people into the jury box, and examined them individually and as a

group. Except for personal matters, voir dire was not sequestered. The court


Questions No. 1 and No. 2 asked whether, despite evidence showing

beyond a reasonable doubt that the defendant was guilty of first degree murder and
that an alleged special circumstance was true, the prospective juror would
“REFUSE to vote” to sustain the murder or special circumstance charge,
respectively, “in order to avoid the possibility of a penalty phase.” Questions No.
3 and No. 4 asked whether, assuming a penalty trial occurred, the prospective juror
would “AUTOMATICALLY vote” for death or LWOP, respectively, “regardless
of the evidence in aggravation and/or mitigation.”


Of the 70 questions appearing on this form, 30 concerned capital

punishment. For example, prospective jurors were asked to describe their general
views of the death penalty, whether such views would interfere with their ability to
be objective at the guilt phase or to consider imposing either death or LWOP at the
penalty phase, and whether an intentional killing should always or never trigger
the death penalty.


urged counsel to suggest additional or clarifying questions. The court asked many

of counsel’s questions, and resolved excusals for cause.

In the fourth and final stage, both sides took turns exercising peremptory

challenges. Although the panel had been previously “passed” for cause, the court

asked questions about the death penalty and other things, and solicited additional

questions from counsel in every case. It also resolved new challenges for cause.

Whenever a prospective juror was excused, a replacement was selected, and

peremptory challenges resumed at random against the 12 people in the box.

Defendant exhausted his peremptory challenges, and unsuccessfully sought 14

more to compensate for those he had used when the court denied his challenges for

cause.8 Defendants then unsuccessfully claimed the prosecution had exercised its

peremptory challenges in a discriminatory fashion under People v. Wheeler (1978)

22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).

Questioning resumed, involving one prospective juror. Without exercising any

more peremptory challenges, codefendant Lee and the prosecutor accepted the

panel as constituted. Twelve jurors and four alternates were sworn.

2. Limits on Voir Dire

During the initial or hardship/publicity phase of voir dire, defendant moved

orally and in writing to amend the court’s preliminary questionnaire. As noted,

the four questions on that form targeted prospective jurors who would never allow


Here, as in other capital trials involving multiple defendants, defendant and

codefendant Lee received 20 peremptory challenges that were “exercised jointly,”
as well as five additional challenges apiece that were “exercised separately.”
(Code Civ. Proc., § 231, subd. (a).) The People received, in turn, 20 peremptory
challenges, plus “additional challenges equal to the number of all the additional
separate challenges allowed the defendants.” (Ibid.) Defendant unsuccessfully
requested more peremptory challenges than those prescribed by statute both before
and near the end of this phase of jury selection.


the case to proceed to a penalty phase, or who would always vote for death or

LWOP. Under defendant’s proposed amendment, the first two questions, which

asked about refusing to return a murder conviction or to sustain special

circumstances, referred to “[two] counts” of “premeditated” murder, and identified

the three special circumstances as “lying in wait,” “financial gain,” and “multiple

murder.” Defendant’s other two questions, which asked about voting

automatically for death or LWOP, similarly differed from the court’s version by

identifying the “premeditated” nature of the murder and the special circumstances

(“lying in wait,” “financial gain,” and “multiple murder[ ]”).9

Defendant argued that he was entitled to delve into specific facts at this

early stage to adequately identify “automatic death” jurors. He emphasized that

“two homicides” were alleged. The prosecutor disagreed. He observed that the

court’s questionnaire generally conformed to Witherspoon v. Illinois (1968) 391


Defendant’s questions read in full as follows: (1) “If the evidence

convinces you beyond a reasonable doubt that the defendant is guilty of 2 counts
of murder of the first degree, i.e., willful, deliberate, and premeditated [murder]
with special circumstances, would you nevertheless REFUSE to vote that (he) (or)
(she) was guilty of murder of the first degree in order to avoid the possibility of a
penalty phase in the trial?” (2) “If the evidence convinces you beyond a
reasonable doubt that the defendant was convicted of first degree willful,
deliberate, and premeditated murder and that a special circumstance of lying in
wait, financial gain, or multiple murder alleged was true, would you nevertheless
REFUSE to vote that the special circumstance was true in order to avoid a penalty
phase in the trial?” (3) “If there is a penalty phase in this trial, and you had
already found willful, deliberate[,] and premeditated murder with special
circumstances of lying in wait, financial gain[,] or multiple murder[ ], would you,
regardless of the evidence in aggravation and/or mitigation, AUTOMATICALLY
vote for the penalty of death?” and (4) “If there is a penalty phase in this trial, and
you had already found willful, deliberate[,] and premeditated murder with special
circumstances of lying in wait, financial gain[,] or multiple murder[ ], would you,
regardless of the evidence in aggravation and/or mitigation, AUTOMATICALLY
vote for the penalty of life in prison without possibility of parole?”


U.S. 510, 522, fn. 21 (Witherspoon), concerning the excusal of prospective jurors

who would always choose LWOP or death, and that defendant’s case-specific

factors could be explored later in voir dire.

The court declined to amend its preliminary questionnaire to accommodate

the defense. The questionnaire’s purpose, the court stated, was to identify those

jurors who would always or never vote for death under any circumstance,

including special circumstance cases in which only a single murder was alleged.

Nevertheless, the court made clear that it was not barring reference to “all

the things” counsel had raised. The court assured counsel that it would orally

instruct on the murder and special circumstance allegations before prospective

jurors completed the preliminary questionnaire and answered oral inquiries about

it. The court further observed that jurors would have those case-specific factors in

mind when they subsequently completed the main questionnaire (which included

more death penalty questions), and were examined about those written replies

during general voir dire. The court alluded to the standard it would apply at that

stage under Wainwright v. Witt (1985) 469 U.S. 412 (Witt), which would permit

the court to disqualify persons based on their views on capital punishment, even if

they would not always choose LWOP or death.

Two days later, codefendant Lee joined defendant in challenging the court’s

preliminary questionnaire and the decision to leave it unchanged. The court

reaffirmed its ruling that case-specific factors would be excluded from the four-

question form on the one hand, but that prospective jurors would be instructed on

such factors before any death qualification occurred on the other hand. The court

explained that it sought to strike a balance in questioning jurors about use of the

death penalty in “any case” versus “this case,” and that it did not want them to

prejudge penalty or undergo “brainwashing.”


Later the same day, the court assured the defense that its concerns would be

met. “[W]e will find out from these jurors whether[,] if one or all of these special

circumstances . . . are found to be true, whether without regard to any other

evidence that they might hear in mitigation, they would automatically vote for

death. That question will be posed.” (Italics added.) The court indicated that

nothing in its earlier ruling was intended to foreclose questioning on the factors

the defense had sought to include in the preliminary death penalty questionnaire.

The trial court adhered to the foregoing plan — giving instructions and

conducting examinations in the manner proposed to counsel. First, before

answering any written or oral questions on capital punishment, all prospective

jurors were instructed (in groups) that the case involved the “murder,” “killing,” or

“death” of two people, or “women,” whose bodies were found in the Universal

garage on Mother’s Day 1995. At the same time, before death qualification began,

the court described the charges to all prospective jurors. They learned that

defendant had been charged with two counts of first degree premeditated murder

and three special circumstances — multiple murder, murder committed for

financial gain, and murder perpetrated while lying in wait.10

Second, the same facts and charges arose during the oral examination. As

to everyone who answered “yes” to any of the four questions on the preliminary


This instruction, which was read to the first group of prospective jurors and

later given in the same basic form to all the other groups, stated that they must
decide whether defendant “is guilty of murder of the first degree, which means a
murder that is willful, deliberate, and premeditated, not accidental, inadvertent,
that sort of thing, but calculated, planned . . . . [I]n this case the special
circumstances are three in number . . . . [¶] First there is an allegation that the
murder was committed for financial gain. Second, it is alleged that the murder
was perpetrated by lying in wait. And third, there is a special circumstance which
is being convicted of more than one charge of murder in the same trial.”


death penalty questionnaire, the court asked whether they would always vote for

or against LWOP or the death penalty if allegations of premeditated murder with

one or more special circumstances were sustained.11 Similar exchanges occurred

during both general voir dire and the peremptory challenge phase, where answers

on the main questionnaire indicated the person might have difficulty voting for a

particular penalty. In some instances, the court inquired about the person’s views

on penalty assuming defendant was convicted of first degree murder and one or

more special circumstances were found true.12 At other times, the oral

examination focused more specifically on premeditated murder, multiple murder,

and murder involving financial gain and lying in wait.13


For example, the first prospective juror who underwent this process circled

“yes” when asked on the preliminary death penalty questionnaire whether he
would automatically vote for LWOP regardless of the evidence at the penalty
phase. The court then asked him the following question: “[J]ust as a hypothetical,
if someone[’s] entire family was killed in the Nazi holocaust and they felt that
there was some individual who was party to that . . . and there was a trial, and it
was found to be first degree murder and they did it by lying in wait, so [at least
] special circumstance was found to be true, you would still be voting for life.”
(Italics added.) The juror answered in the affirmative. After further questioning,
during which the juror adhered to his LWOP stance, he was excused for cause.


For example, one of the first prospective jurors to undergo general voir dire

indicated on the main questionnaire that his views on the death penalty would
likely influence his vote at the guilt phase. When asked about this answer, the
juror explained that he was opposed to the death penalty, would always choose
LWOP over death, and had no doubts on the issue. In the process, the court asked
whether such views would change if “one or more special circumstances were
found to be true
,” and if aggravation outweighed mitigation. (Italics added.) The
person answered in the negative, and was ultimately excused for cause.


For example, one female prospective juror wrote on the main questionnaire

that the death penalty was appropriate for someone who “kills another person
simply for financial gain.” This answer prompted the court to examine the woman
to determine whether she would always impose death in such cases, and whether

(footnote continued on next page)


Despite these developments, defendant and codefendant Lee never stopped

complaining about the court’s ruling. For instance, during voir dire on the

preliminary questionnaire, counsel faulted the court for not being “more case

specific about people who would automatically give death.” Counsel also noted

later, during general voir dire, that jurors had not been asked point-blank whether

they would “always” impose death under the circumstances the defense had tried

to include in the initial questionnaire, e.g., “murdering two people for financial

gain.” At one point, counsel recognized that he was testing the court’s patience

and essentially apologized for rehashing the issue.

On appeal, defendant repeats his claim that the trial court erred in limiting

reference to “case specific factors” he sought to include in the preliminary

questionnaire, namely premeditated multiple murder, lying in wait, and financial

gain. Defendant insists that several challenges for cause were erroneously denied

as a result, and that he was forced to use peremptory challenges to ensure that

none of these persons sat on the jury. The “flip side” of this argument also is

raised. Defendant complains that prospective jurors were not asked whether they

would always impose LWOP in such specific cases, and that various prosecution

challenges for cause were thus erroneously granted over defense objection. Here,

as in the trial court, defendant claims violations of his right to due process and to a

(footnote continued from previous page)

she would consider evidence in mitigation. The court engaged in similar
dialogues during general voir dire with persons whose questionnaires indicated
that they understood the case involved “lying in wait,” as well as “financial gain,”
or who wrote that they would consider whether the murders were “planned” or
“premeditated” at sentencing. Other prospective jurors were examined about
statements in their questionnaires regarding the appropriate penalty for “multiple”
or “serial” murderers whose actions result in the death of “several people.”


fair and impartial jury under the Fifth, Sixth, and Fourteenth Amendments to the

federal Constitution, and parallel state constitutional provisions.

At the time of defendant’s trial, as now, qualifications to serve on a capital

jury were not limited to determining whether the person opposed or supported the

death penalty in every case. Then, as now, both federal and state law permitted

the excusal for cause of a prospective juror whose views on capital punishment

would “ ‘prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. 412, 424,

fn. omitted.) In articulating this standard, the high court made clear that Witt,

supra, at page 424, “clarif[ied]” Witherspoon by allowing excusals for cause in a

potentially broader range of circumstances, that is, even where the prospective

juror has not made it “unmistakably clear” that he would “automatically” vote a

certain way. (Witherspoon, supra, 391 U.S. 510, 522, fn. 21.)

The trial court has considerable discretion to place reasonable limits on voir

dire (People v. Zambrano (2007) 41 Cal.4th 1082, 1120 (Zambrano)), and to

determine the number and nature of questions on the death penalty. (Stitely,

supra, 35 Cal.4th 514, 540.) We have explained that death-qualifying voir dire

seeks to determine prospective jurors’ attitudes about capital punishment only in

the abstract, and whether, without knowing the specifics of the case, they have an

open mind on penalty. (Zambrano, supra, 41 Cal.4th at p. 1120, quoting People v.

Clark (1990) 50 Cal.3d 583, 597.) Thus, a defendant cannot insist upon questions

that are “ ‘so specific’ ” that they expose jurors to the facts of the case, or tempt

them to prejudge penalty based on the aggravating and mitigating evidence.

(Zambrano, supra, 41 Cal.4th at p. 1121, quoting People v. Cash (2002) 28

Cal.4th 703, 721-722 (Cash).)

Nevertheless, voir dire cannot be so abstract that it fails to identify those

jurors whose death penalty views would prevent or substantially impair their


performance under Witt, supra, 469 U.S. 412, 424. Rules have developed to

balance the competing interests. Thus, on the one hand, the trial court cannot bar

questioning on any fact present in the case “that could cause some jurors

invariably to vote for the death penalty, regardless of the strength of the mitigating

circumstances.” (Cash, supra, 28 Cal.4th 703, 721, italics added.) But the court’s

refusal to allow inquiry into such facts is improper only if it is “categorical

(People v. Vieira (2005) 35 Cal.4th 264, 286 (Vieira), italics added) and denies all

“opportunity” to ascertain juror views about these facts. (Id. at p. 287.)

In Cash, the defense sought to determine whether prospective jurors could

consider LWOP for someone who had “killed more than one person” — alluding

to anticipated penalty phase evidence that, when he was a juvenile, the defendant

had murdered his grandparents. (Cash, supra, 28 Cal.4th 703, 719.) The trial

court concluded that because this circumstance appeared nowhere in the

information, it could not be disclosed to prospective jurors and no questioning on

the topic would be allowed. (Ibid.) The ruling was enforced at every phase of

voir dire. (See id. at pp. 721, 722.) On appeal, this court reversed the death

judgment — our lone reversal for limiting death penalty inquiry into case-specific

facts. We explained that the nature of the error prevented us from determining

whether any seated juror “held the disqualifying view that the death penalty should

be imposed invariably and automatically on any defendant who had committed

one or more murders other than the [charged] murder.” (Id. at p. 723.)

We reached a different result in Vieira, supra, 35 Cal.4th 264. There,

before voir dire began, the defendant moved to modify the court’s questionnaire to

ask whether prospective jurors would automatically impose death if they convicted

him of “ ‘two or more murders.’ ” (Id. at p. 284.) The court did not include this

question in the written questionnaire, or ask about multiple murder during oral

questioning about the death penalty. Vieira itself does not make clear whether the


court read the information alleging multiple murder to prospective jurors

beforehand. Nevertheless, this court found no violation of Cash, supra, 28 Cal.4th

703. We emphasized that the trial court never ruled or otherwise suggested that

prospective jurors could not be asked, during general voir dire, the multiple

murder question excluded from the written questionnaire. “[R]efusal to include

the question [in the written form] was not error so long as there was an

opportunity to [orally] ask the question during voir dire.” (Vieira, supra, 35

Cal.4th at p. 287.)

The gravamen of Cash and Vieira — both of which were decided after

defendant’s trial — is that the defense cannot be categorically denied the

opportunity to inform prospective jurors of case-specific factors that could

invariably cause them to vote for death at the time they answer questions about

their views on capital punishment. By definition, such an opportunity arises where

the trial court instructs all prospective jurors on such case-specific factors before

any death-qualification begins. It is logical to assume that when prospective jurors

are thereafter asked (orally or in writing) whether they would automatically vote

for life or death regardless of the aggravating and mitigating circumstances, they

have answered the question with those case-specific factors in mind, and are aware

of the factual context in which the exchange occurs. This assumption seems all

the more reasonable where answers given orally in open court refer to the specific

facts and charges contained in the court’s instruction and indicate that they are

being taken into account.

Here, we assume solely for the sake of argument that premeditated murder

committed while lying in wait and for financial gain are potentially inflammatory

circumstances analogous to multiple murder and prior murder, that they could

transform an otherwise death-qualified juror into one who could not decide

penalty fairly, and that exploration of juror attitudes about the death penalty in


such cases cannot be wholly disallowed. (See Zambrano, supra, 41 Cal.4th 1082,

1122 [declining to treat issue of victim’s dismemberment in such a manner].)

Even so, under the unique circumstances of this case, no error occurred.

Contrary to what defendant suggests, the trial court never ruled that

prospective jurors were prohibited from learning about the foregoing

circumstances or from considering them when expressing their views on capital

punishment. Although it denied defendant’s motion to include any case-specific

factors in the preliminary questionnaire, the court kept its promise to counsel and

told all prospective jurors about the specific facts and charges the defense had

sought to include therein. Thus, jurors knew the case involved two counts of

premeditated murder and the three special circumstances of multiple murder, lying

in wait, and financial gain. The court also conveyed this information before

anyone completed either the preliminary or general questionnaire, and before they

were orally examined about their answers on either written form. A significant

number of prospective jurors indicated in the nonsequestered presence of their

colleagues, in response to instructions that they all received, that they were taking

these case-specific factors into account when asked orally and in writing whether

they would automatically vote a certain way.

We are thus satisfied that the court’s procedures in this case were adequate

to ascertain the prospective jurors’ attitudes on case-specific factors that might

disqualify them to participate in a capital trial. No error under Cash, supra, 28

Cal.4th 703, or Vieira, supra, 35 Cal.4th 264, occurred.14


Though the briefs are far from clear on this point, defendant suggests the

trial court erred in refusing to ask whether prospective jurors’ views on penalty
would be affected if one of the murder victims was defendant’s mother. However,
defendant did not include this topic in his motion to amend the trial court’s
preliminary death penalty questionnaire — the ruling under review here. Nor was

(footnote continued on next page)


3. Denial of Challenge for Cause/Pretrial Publicity

Defendant claims the trial court abused its discretion by not excusing

Prospective Juror J.D. for cause. He also asserts violations of his right to due

process and to a representative jury, but does not state whether the federal or state

Constitution is involved. In any event, the argument on appeal, as in the trial

court, is that exposure to news stories about the crime biased J.D. against

defendant on the issue of guilt. We disagree.15

(footnote continued from previous page)

matricide mentioned in counsel’s ensuing complaints to the court after it denied
that motion. Indeed, in his reply brief on appeal, defendant emphasizes a point
towards the end of voir dire (i.e., during the peremptory challenge phase), when
the court asked a male prospective juror, who was single and lived with his
mother, whether he favored a guilty verdict for someone “charged with murdering
his mother as opposed to murdering some other person.” Defense counsel
challenged the juror for cause because of “parallels” between his situation and
defendant’s, and because the juror favored death for premeditated murders.
However, notwithstanding Justice Werdegar’s dissenting view, nothing in this
exchange, or in any other voir dire allusion to family ties, persuades us that
defendant ever asked the court to decide below that matricide or intrafamilial
murder was one of those rare circumstances which, like multiple murder or prior
murder, could cause any juror invariably to vote for death, and which must be
disclosed to all prospective jurors before death qualification begins. (See Cash,
, 28 Cal.4th 703, 721, 723.) Hence, the claim is forfeited, and we do not
address it on the merits here. (See People v. Robinson (2005) 37 Cal.4th 592, 639
[failure to object and suggest changes to written and oral questions during death
qualification forfeits complaints about their scope and content].)


As to this and certain other appellate claims, defendant contends that an

issue raised and decided in the trial court resulted in constitutional violations, but
he did not present those constitutional theories below. In such instances, it
appears that (1) the appellate claim is the kind that required no trial court action to
preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court was asked to apply, but merely assert that the
trial court’s act or omission, in addition to being wrong for reasons actually
presented to that court, had the legal consequence of violating the Constitution.

(footnote continued on next page)


On the main questionnaire completed before general voir dire (i.e., the third

phase of jury selection), question No. 35 asked, “Before coming here today, did

you have opinions or beliefs whatsoever about this case?” Prospective Juror J.D.

answered, “From newspaper accounts at [the] time and due to details of story[,] I

believed that both defendants were directly involved in murder for financial gain.

Also, there had been a planned out plot for these murders. Finally, committing the

murders on Mother’s Day showed marked anger and hate directed to victims.” In

a related vein, question No. 36 asked for the nature and source of any pretrial

information to which prospective jurors had been exposed. J.D. again mentioned

news reports of a financially motivated double murder in a parking structure at

Universal on Mother’s Day. He also recollected that the victims were related to or

associated with one of the defendants.

On voir dire, the trial court asked J.D., a medical laboratory technician,

whether his written answers reflected circumstances that he remembered hearing

or seeing in the media, or whether — as suggested on his questionnaire — he

actually believed they were true. Without apparent hesitation, J.D. clarified his

written answer to question No. 35, saying, “I would have reworded that[;] rather

than saying ‘I believe’ is [sic] I recollect from the story.” J.D. confirmed that he

did not believe everything contained in media accounts, that such accounts were

(footnote continued from previous page)

To that extent, defendant’s new constitutional arguments are not forfeited on
appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 (Boyer), applying
People v. Partida (2005) 37 Cal.4th 428, 433-439.) No separate constitutional
discussion is required, or provided, where rejection of a claim that the trial court
erred on the issue presented to that court necessarily leads to rejection of any
constitutional theory or “gloss” raised for the first time here.


not evidence in the present case, that he would adjudicate the case no differently

than if he had heard nothing about the crime, and that he would rely solely on the

evidence presented at trial. J.D. insisted that he would be fair and impartial, and

cited his need to be neutral at work in balancing the competing demands of others.

Defendant moved to excuse J.D. for cause because he “believes that the

defendants are guilty” based on pretrial publicity. The motion was denied. The

trial court said it accepted J.D.’s assurances that news stories involved only

allegations, not evidence. The court also credited J.D.’s explanation that he was

imprecise in answering question No. 35, and that he should have written that he

recalled news accounts about the crime, not that he “believed” their truth or

accuracy. Defendant subsequently exercised a peremptory challenge against J.D.,

who did not serve on the jury.

The foregoing events do not require reversal of the judgment.

Preliminarily, defendant has not preserved his claim that Prospective Juror J.D.

was biased and should have been excused for cause. Although he exercised a

peremptory challenge to remove J.D., and exhausted all such challenges (and

asked for more), defendant never expressed dissatisfaction with the jury as

constituted. (People v. Wilson (2008) 43 Cal.4th 1, 14; People v. Crittenden

(1994) 9 Cal.4th 83, 121 & fn. 4.) Such lapse results in forfeiture of the claim

where, as here, the trial occurred in 1997, after Crittenden was decided. (People v.

Blair (2005) 36 Cal.4th 686, 741-742.) Otherwise, a defendant could challenge

denial of a challenge for cause on appeal even if he was satisfied with the overall

composition of the jury, and expressed no misgivings to the trial court. (People v.

Weaver (2001) 26 Cal.4th 876, 911.)

Moreover, under the principles invoked by defendant, a prospective juror is

biased and disqualified to serve only if his state of mind will prevent him from

acting impartially and without prejudice to any party. (People v. Ayala (2000) 24


Cal.4th 243, 271-272 (Ayala); see People v. Ledesma (2006) 39 Cal.4th 641, 668-

669, citing Code of Civ. Proc., § 225, subd. (b)(1).) If the prospective juror’s

statements are equivocal or conflicting, the trial court’s determination of his state

of mind is binding on appeal. (Ayala, supra, 24 Cal.4th at p. 272, citing People v.

Carpenter (1999) 21 Cal.4th 1016, 1035.) The trial court is in the best position to

make this assessment, since it can observe demeanor and tone, and decide

credibility firsthand. (People v. McPeters (1992) 2 Cal.4th 1148, 1175.)

Here, nothing J.D. said in court indicated that he was biased against

defendant or disqualified to serve based on news stories about the capital crime.

J.D. candidly disclosed that he remembered learning about allegations of multiple

murder against defendant, and stated unequivocally that he did not accept them as

true and had not prejudged guilt. As noted by the trial court, such answers

arguably conflicted with one response J.D. provided on his written questionnaire

before the oral examination. As noted, where assessment of the juror’s state of

mind depends upon the resolution of any conflicting or ambiguous statements and

upon a credibility determination, we defer to the findings of the trial court. Here,

the court explicitly credited J.D.’s in-person statements clarifying his written

questionnaire and insisting that he remained open minded and fair about the case.

We therefore conclude that the court did not abuse its discretion in finding no bias

on J.D.’s part, and in denying defendant’s challenge for cause.

4. Wheeler/Batson Claim

As noted, near the end of jury selection, defendant exhausted his

peremptory challenges and failed to persuade the trial court to grant more.

Codefendant Lee, joined by defendant, then moved under both Wheeler, supra, 22

Cal.3d 258, and Batson, supra, 476 U.S. 79, to dismiss the panel of prospective

jurors and start jury selection anew. They argued that the prosecution had

exercised most of its peremptory challenges against female prospective jurors (i.e.,


20 of 23), and that such conduct was discriminatory and unconstitutional under

state and federal law. (See J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127,

129; People v. Jurado (2006) 38 Cal.4th 72, 104.)

The trial court initially expressed conflicting views on the matter. On the

one hand, the “numbers” did not surprise the court, because women

“predominate[d]” in the pool of prospective jurors and more women than men

were likely to be excused as a result. On the other hand, the court stated that while

it was inclined to deny the Wheeler/Batson motion without prejudice, it would

require the prosecution to explain its reasons for exercising any peremptory

challenges against women “[f]rom this point forward.” 16

Seeking clarification, the prosecutor asked whether the court had found a

prima facie Wheeler/Batson violation. “[I]f the court is not finding a prima facie

case,” said the prosecutor, “the People should [not] have to justify anything.” The

prosecutor denied any gender bias. No mention of specific jurors or reasons for

excusing them was made.

The trial court acknowledged that it was not prepared to “determine

whether there [was] a prima facie case” at that time. Hence, the court deferred a

decision on the issue until after it had carefully examined its notes and the record.

Jury selection then resumed. Later the same day, the 12-person jury panel was

sworn. A few days later, four alternate jurors were sworn.


The trial court also expressed concern that the Wheeler/Batson motion was

untimely, because defendant did not bring it until the peremptory challenge
process was almost complete and the jury was on the verge of being sworn. The
Attorney General does not make a timeliness argument on appeal, and we do not
address the point. (See, e.g., Zambrano, supra, 41 Cal.4th 1082, 1104, fn. 2, and
cases cited.)


The Wheeler/Batson motion was ultimately denied during the prosecution’s

case at the guilt trial. The court adopted the prosecution view, and rejected the

contrary defense claim, that no prima facie case of purposeful gender

discrimination had been made. It ruled as follows: “I have analyzed the pattern of

peremptories by the People and the background of the jurors who were excused. I

have taken into consideration the ultimate makeup of the jury that is hearing this

case with respect to their sexes and the range of ages of the sexes, the females. [¶]

And I’ve also considered the fact that, as is usually the case and was again here,

the majority of representation is women on the panel as a whole, and on the basis

of that, I find no indication of any concern . . . with respect to the Wheeler motion

aspects. There just is no basis for it, and the motion is denied.”

Defendant renews his Wheeler/Batson claim on appeal. He insists denial of

the motion violated his rights to due process, equal protection, and a representative

jury under the Fifth, Sixth, and Fourteenth Amendments to the federal

Constitution, and under applicable state constitutional provisions. No error


Critical here is whether defendant established a prima facie case of

purposeful discrimination. In this first stage of any Wheeler/Batson inquiry, the

burden rests on the defendant to “ ‘show[ ] that the totality of the relevant facts

gives rise to an inference of discriminatory purpose.’ ” (Johnson v. California

(2005) 545 U.S. 162, 168; accord, Miller-El v. Dretke (2005) 545 U.S. 231, 239

(Miller-El); Batson, supra, 476 U.S. 79, 96.) In other words, this is not a case in

which, after a prima facie case is found, the state must offer permissible

nondiscriminatory reasons for the strikes (i.e., the second stage of the

Wheeler/Batson analysis), or the trial court must decide whether the defendant has

carried his burden of showing the discriminatory use of such strikes (i.e., the third

stage of the analysis). (Johnson v. California, supra, 545 U.S. at p. 168.) Indeed,


as the prosecutor indicated below, he was not obliged to disclose such reasons, and

the trial court was not required to evaluate them, unless and until a prima face case

was made. (Zambrano, supra, 41 Cal.4th 1082, 1104-1105 & fn. 3; see generally

People v. Bell (2007) 40 Cal.4th 582, 596 (Bell).)

Defendant correctly observes that the trial court’s finding that he failed to

establish a prima facie Wheeler/Batson violation must be reviewed in light of

intervening legal developments. In Johnson v. California, supra, 545 U.S. 162,

the United States Supreme Court reversed People v. Johnson (2003) 30 Cal.4th

1302, in which we confirmed that the relevant California standard — even if it

sometimes had been expressed as a “ ‘reasonable inference’ ” (People v. Johnson,

supra, 30 Cal.4th at p. 1312) — was to show that it was “more likely than not”

that purposeful discrimination had occurred. (Id. at p. 1318.) The high court has

since disapproved this exacting standard for federal constitutional purposes, and

has said that a prima facie burden is simply to “produc[e] evidence sufficient to

permit the trial judge to draw an inference” of discrimination. (Johnson v.

California, supra, 545 U.S. at p. 170.)

Where, as here, it is not clear which standard the trial court used, we

independently determine whether the record permits an inference that the

prosecutor excused jurors on prohibited discriminatory grounds. (Bell, supra, 40

Cal.4th 582, 597.) Defendant argues that the statistical disparity between the

number of prosecutorial strikes used against men and women establishes a prima

facie inference of discriminatory motive. Under the particular circumstances of

the case, we disagree.

At the first opportunity to exercise a peremptory challenge, the prosecution

accepted the panel, consisting of five women and seven men. The defense

declined to follow suit, and the process of exercising alternating peremptory

challenges began.


In the ensuing round, the defense jointly excused two women and three

men, and the prosecution excused four women. The prosecution accepted the

panel, which then consisted of eight women and four men. The defense did not

find the panel acceptable at that point.

As the back-and-forth peremptory process continued, defendants jointly

excused three women and two men, and the prosecution excused four women.

Next, when the panel consisted of seven women and five men, the prosecution

excused a man.

Thereafter, defendants jointly excused a man. For the third time, the

prosecution accepted the panel, which again consisted of eight women and four

men. The defense did not choose to do so.

In the next go-around, defendants jointly excused three women and one

man, and the prosecution excused three women. When the panel thereafter

consisted of eight women and four men, the prosecution excused a man.

Defendants then jointly excused two women, interspersed with the

prosecution’s excusal of one woman. For the fourth time, the prosecution

accepted the panel, which then consisted of six women and six men. Again, the

defense did not follow suit.

Defendants jointly excused one woman and, for the fifth time, the

prosecution accepted the panel, then consisting of five women and seven men.

Defendants responded by jointly excusing one man. For the sixth time, the

prosecution accepted the panel, again consisting of five women and seven men.

Defendants then jointly excused one man, the prosecution excused one

woman, and codefendant Lee excused one man. For the seventh time, the

prosecution accepted the panel, then consisting of six women and six men.

Next, defendant excused one woman. Then, when the panel consisted of

five women and seven men, the prosecution excused a man. Codefendant Lee


followed by excusing one man and, for the eighth time, the prosecution accepted

the panel, consisting of five women and seven men. Defendant responded by

excusing two men and one woman. Codefendant Lee excused two men, and the

prosecution excused four women.

Thereafter, between the prosecution’s excusal of one woman and

defendant’s excusal of one man, codefendant Lee accepted the jury. The

prosecution excused one woman, codefendant Lee accepted the jury, and the

prosecution excused one more woman. It was at that point that defendants

objected under Wheeler/Batson, and the court took under submission the question

whether they had made a prima facie case. Then, defendant having exhausted his

peremptory challenges, and codefendant Lee and the prosecution having accepted

a panel of five women and seven men, those 12 jurors were sworn.

In sum, after initially accepting the panel without exercising any

peremptory challenges at all, the prosecutor accepted the panel eight additional

times with seeming disregard for the number of females or the ratio of female to

male jurors. On two such occasions, the prosecution was willing to have

defendant tried by a jury of eight women and four men. Two other times, there

were six men and six women in the jury box — another split suggesting men were

not being favored over women. The prosecution chose, on two more occasions, to

peremptorily excuse a man when the panel consisted of seven or more women.

In our view, the prosecution’s pattern of excusals and acceptances during

the peremptory challenge process reveals no obvious discrimination towards

female jurors and is patently inconsistent with any such inference. Hence, the trial

court did not err in finding no prima facie Wheeler/Batson violation.17


After reviewing the questionnaires and voir dire of each woman the

prosecutor excused, Justice Kennard finds potential nondiscriminatory reasons for

(footnote continued on next page)


Defendant next argues the trial court erred in not conducting a comparative

juror analysis and that we must perform this function for the first time on appeal.

However, for reasons we have recently explained, it is not necessary or

appropriate for us to speculate as to the reasons that may have motivated the

prosecutor’s challenges. (Bell, supra, 40 Cal.4th 582, 600.) Nor does Miller-El,

supra, 545 U.S. 231, 241-252, decided after defendant’s trial, mandate such an

analysis under the present circumstances. (Bell, supra, 40 Cal.4th at p. 601.)

In a “first-stage Wheeler-Batson case, comparative juror analysis would

make little sense. In determining whether defendant has made a prima facie case,

the trial court did not ask the prosecutor to give reasons for his challenges, the

prosecutor did not volunteer any, and the court did not hypothesize any. Nor,

(footnote continued from previous page)

the excusal of all but one such panelist, and thus commendably agrees that no
prima facie case of gender bias arose. In People v. Bonilla (2007) 41 Cal.4th 313,
345-349 (Bonilla), we used a similar methodology to reject an arguable inference
of discrimination, but nothing in our case law suggests, as Justice Kennard would
have it, that this is the only valid means of doing so. Justice Kennard certainly
fails to persuade us that our own approach is flawed in this regard. Justice
Kennard insists we may not infer a lack of gender bias from the prosecutor’s
acceptance, several times, of a jury in which women equaled or exceeded men in
number. She speculates that the prosecutor could safely assume such acceptances
would not really end the selection process to the extent the defense had available
challenges remaining. The prosecutor, she ventures, may simply have been trying
to save his own challenges to ensure the most favorable — i.e., the most gender-
biased — possible jury at the end of the process. But to speculate, without
evidentiary support, that the prosecutor’s acceptances were insincere, and that his
tactics unfairly targeted women, ignores a simple reality. On each such occasion,
the defense could easily have accepted the same female-laden panels. In short, the
prosecutor ran the repeated and genuine risk of ending up with a jury consisting
largely of women. Such evidence provides powerful support for our conclusion
that the prosecutor’s peremptory strikes, though mostly affecting women, were in
fact not exercised on the basis of gender alone or in a discriminatory manner.


obviously, did the trial court compare the challenged and accepted jurors to

determine the plausibility of any asserted or hypothesized reasons. Where, as

here, no reasons for the prosecutor’s challenges were accepted or posited by either

the trial court or this court, there is no fit subject for comparison.” (Bell, supra, 40

Cal.4th 582, 600-601.) “Whatever use comparative juror analysis might have in a

third-stage case for determining whether a prosecutor’s proffered justifications for

his strikes are pretextual, it has little or no use where the analysis does not hinge

on the prosecution’s actual proffered rationales, and we [may properly] decline to

engage in a comparative analysis” in a first-stage case. (Bonilla, supra, 41 Cal.4th

313, 350.)18

B. Denial of Severance

Defendant, along with codefendant Lee, moved for severance before trial.

Defendant renewed his motion both before and after opening statements at the

guilt phase, during the presentation of evidence at the guilt phase, and after the

penalty phase, in a motion for new trial. He now contends the trial court erred in

denying these motions, thereby violating his federal and state constitutional rights

to due process and a fair trial. His theory here, as below, is that the conflicting

defenses prejudiced him at every phase of trial, i.e., that while he accused

unknown third parties of the murders, Lee suggested that defendant was to blame.


We further decline to disturb the trial court’s Wheeler/Batson ruling based

on defendant’s assertion that the prosecutor was following an unwritten policy of
the Los Angeles County District Attorney’s Office to limit women on capital
juries because of their willingness to show mercy and to consider mitigating
evidence in cases involving intrafamilial conflict and murder. Nothing in the
appellate record supports this view. Indeed, defendant relies exclusively on
newspaper and law review articles not submitted with his Wheeler/Batson motion
below or properly presented to this court on appeal.


The Legislature has expressed a preference for joint trials. (People v. Avila

(2006) 38 Cal.4th 491, 574 (Avila).) Section 1098 states that multiple defendants

jointly charged with a felony offense “must be tried jointly, unless the court

order[s] separate trials.” This rule applies to defendants charged with “ ‘common

crimes involving common events and victims.’ ” (People v. Tafoya (2007) 42

Cal.4th 147, 162, quoting People v. Keenan (1988) 46 Cal.3d 478, 500 (Keenan).)

However, separate trials may be ordered in the face of antagonistic

defenses. (Avila, supra, 38 Cal.4th 491, 575.) As discussed further below, such

conflict exists only where the acceptance of one party’s defense precludes the

other party’s acquittal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41

(Coffman and Marlow), citing People v. Hardy (1992) 2 Cal.4th 86, 168 (Hardy).)

We review the denial of severance for abuse of discretion — a deferential standard

based on the facts as they appeared when the ruling was made. (Avila, supra, 38

Cal.4th at p. 575, citing Hardy, supra, 2 Cal.4th at p. 167.) A ruling that was

correct when made will stand unless joinder causes such “ ‘ “gross unfairness” ’ ”

as to violate defendant’s due process rights. (People v. Lewis and Oliver (2006)

39 Cal.4th 970, 998 (Lewis and Oliver).)

Contrary to what defendant suggests, this was a “ ‘classic’ case” for

joinder. (Coffman and Marlow, supra, 34 Cal.4th 1, 40, quoting Kennan, supra,

46 Cal.3d 478, 499.) The prosecution claimed that defendant and Lee planned and

committed the multiple murder together. Both stood accused in equal measure of

the same offenses involving the same special-circumstance allegations. The

evidence against each defendant was strong. It included their joint visit to the

crime scene one week before the murders, their presence and apparent phone

contact at the crime scene one hour beforehand, the knife wounds each bore

afterwards, and the discovery of the victims’ blood on their clothes.


By the same token, statements made by each defendant before or during

trial did not implicate the other and, if credited by the jury, would have been

mutually exculpatory. In particular, both denied any participation in the murders.

Defendant told police and medical personnel at the crime scene that he was

attacked on the top floor of the garage by robbers he never saw and could not

identify. Similarly, Lee testified at trial that she was stabbed by an unknown

assailant while sitting in her car waiting for defendant and the victims in the same

location. All of these circumstances, including the compatible nature of each third

party culpability defense, strongly supported the court’s denial of severance here.

Defendant insists, however, that Lee’s counsel provided an alternate theory

portraying defendant as the person who murdered Sonia and Doris, and who

stabbed Lee. Specifically, in closing argument at the guilt phase, Lee’s counsel

acknowledged that jurors might not believe that an “unknown gang of thugs”

committed the murders. Earlier, in Lee’s opening statement, counsel highlighted

evidence suggesting that the murders were committed in a rage, that Lee and

defendant became estranged the week beforehand, and that Lee had no reason to

kill Sonia or Doris. Lee’s counsel described his client as one of “three victims.”19


We note that defendant’s attorney, who gave no opening statement at the

guilt phase, claimed during closing argument that the prosecution had not proved
defendant’s role in the murders beyond a reasonable doubt. Counsel questioned
the competence of investigators, the reliability of forensic evidence, and the
strength of expert testimony. He urged the jury to draw favorable inferences from
evidence admitted to prove planning and motive, and from defendant’s statements
after the crime. Alternatively, counsel argued that the elements of malice
aforethought and premeditation required for murder had not been proved insofar
as the killings were provoked by various circumstances, including Sonia and
Doris’s joint efforts to separate defendant from his son, and defendant’s financial
distress and looming bankruptcy.


Even assuming counsel sought to subtly shift blame from Lee to defendant,

and such innuendo constituted conflicting defenses under the authorities cited

above, severance could properly be denied. We have said that a joint trial is

prohibited only where “ ‘the conflict is so prejudicial that [the] defenses are

irreconcilable, and the jury will unjustifiably infer that this conflict alone

demonstrates that both [defendants] are guilty.’ ” (Hardy, supra, 2 Cal.4th 86,

168.) “When, however, there exists sufficient independent evidence against the

moving defendant, it is not the conflict alone that demonstrates his or her guilt,

and antagonistic defenses do not compel severance.” (Coffman and Marlow,

supra, 34 Cal.4th 1, 41, italics added.)

Independent evidence supported the prosecution theory and implicated

defendant in the murders. Before the crime occurred, he blamed the victims for

distancing him from his son, and complained about paying Sonia child support,

emphasizing his bankrupt state. Defendant drove the victims to their last meal,

arriving late at night and parking in a remote spot where the murders occurred. He

was found at the crime scene covered in the victims’ blood, with knife cuts on his

hands. He behaved oddly and made suspicious statements at that time about how

the attack occurred. In light of such evidence, any tension between defendants’

theories of the case could not alone have produced the guilty verdicts.

Finally, defendant characterizes Lee’s testimony as “contrived,” and claims

he suffered “prejudicial spillover” in the joint trial. For reasons stated above, the

trial court was not required to grant severance on this ground. The prosecution

presented abundant evidence establishing that defendant murdered the victims as

part of a selfish and vengeful plan that he and Lee devised and perpetrated

together. Nothing in Lee’s defense could have so tainted defendant as to have

caused the jury to convict him solely on that ground. No constitutional or other

error occurred.



A. Ex Parte In Camera Meetings

The trial judge, Honorable Leslie W. Light, presided over the present case

for over 10 months. During that period, the court conferred in camera 10 times

with Henry J. Hall, counsel for codefendant Lee, outside the presence of both

defendant and his counsel, Ralph A. Courtney III. These hearings were

transcribed and sealed in the trial court.

Thereafter, while the case was pending on automatic appeal, defendant filed

a motion in this court to unseal or otherwise gain access to the foregoing

transcripts. On June 25, 2003, we ordered that three of the transcripts be unsealed

(one conference on November 19, 1997, and two conferences on December 2,

1997), and that transcripts of three other conferences remain sealed (August 5,

1997, March 30, 1998, and April 1, 1998). The same order also gave appellate

counsel access to reporter’s transcripts of four additional conferences (and to one

portion of the sealed clerk’s transcript), but declined to unseal such items or allow

their use in court papers that were not themselves filed or lodged under seal

(conferences on November 10, 1997, November 13, 1997, January 12, 1998, and

March 2, 1998).

Defendant’s main complaint on appeal is that his absence and the absence

of his counsel from the foregoing conferences resulted in violations of his right to

counsel, to presence, to due process, and to a fair and public trial under the Sixth

and Fourteenth Amendments of the federal Constitution. We will reject the claim.

Proceedings held in chambers and outside the presence of a party are

generally disfavored. (Ayala, supra, 24 Cal.4th 243, 262; see id. at pp. 293-294

(dis. opn. of George, C. J.); see also People v. Prince (2007) 40 Cal.4th 1179,

1279 (Prince) [openness presumed in public trial guarantee].) However, the trial

court retains discretion to conduct in camera ex parte proceedings to protect an


overriding interest that favors confidentiality. (See, e.g., People v. Gurule (2002)

28 Cal.4th 557, 593-594 (Gurule) [privileged attorney-client information]; People

v. Lawley (2002) 27 Cal.4th 102, 159 (Lawley) [identity of confidential

informant]; Ayala, supra, 24 Cal.4th at p. 261 [trial strategy]; People v. Webb

(1993) 6 Cal.4th 494, 516 (Webb) [privileged psychotherapy records].)

In addition, the federal constitutional right to counsel arises at critical

stages of the prosecution or when necessary to assure a meaningful defense.

(United States v. Wade (1967) 388 U.S. 218, 225; People v. Koontz (2002) 27

Cal.4th 1041, 1069 (Koontz).) Likewise, a federal constitutional right to be

present in court exists where necessary to protect the defendant’s opportunity for

effective cross-examination, or to allow him to participate at a critical stage and

enhance the fairness of the proceeding. (People v. Waidla (2000) 22 Cal.4th 690,

741-742 (Waidla), citing Kentucky v. Stincer (1987) 482 U.S. 730, 744-745 & fn.

17.) Such protections usually do not cover in camera discussions on matters

bearing no reasonable, substantial relation to the defense of the charge. (People v.

Rogers (2006) 39 Cal.4th 826, 855; Waidla, supra, 22 Cal.4th at p. 742.)

Defendant makes no serious attempt to show a violation of these principles

based on the transcripts that we unsealed or otherwise provided to counsel on

appeal. He asks us to infer from the sheer number of in camera ex parte

proceedings that codefendant Lee’s counsel received “unfettered” access to the

trial court, and functioned as a “super-prosecutor” in the case. As so framed, the

claim is speculative and fails outright. Indeed, the court met at least three times

with defendant’s attorney in chambers, outside the presence of Lee’s counsel,

suggesting the procedure was not one-sided or unfair.20


The Attorney General suggests defendant has forfeited his right to complain

about the ex parte in camera procedure on appeal to the extent he failed to object

(footnote continued on next page)


In any event, we have carefully reviewed all 10 transcripts sealed at trial

and used to support the present claim on appeal. (E.g., Gurule, supra, 28 Cal.4th

557, 595; Lawley, supra, 27 Cal.4th 102, 160; Webb, supra, 6 Cal.4th 494, 518.)

The matters discussed in those conferences did not bear directly on the evidence at

trial, the conduct of the defense, or the outcome of the case. Nor do the transcripts

reveal any attempt by Attorney Hall to curry favor with the trial court or to benefit

his client Lee at the expense of defendant.

To the contrary, and as an example, defendant instigated the closed

proceedings that are the subject of the three transcripts we ordered unsealed on

appeal. On those occasions, Hall consulted with the trial court about telephone

calls and handwritten notes he had received directly from defendant complaining

about his attorney, Courtney, offering to help Lee with her defense, and

threatening to commit suicide. The court suggested that Hall should promptly

disclose these communications to Courtney and inform defendant that no contact

could occur in Courtney’s absence. Hall said he took such action. It seems

unreasonable for defendant to now complain about ex parte in camera meetings

held to ensure that his own actions did not place Lee’s counsel in an ethical or

tactical bind. No constitutional error occurred.

(footnote continued from previous page)

at trial. However, as the Attorney General recognizes, defendant’s counsel was
apparently aware of only three of these conferences around the time they occurred
— the same number of times defendant’s counsel appeared in chambers without
Lee’s counsel. Thus, it appears defendant did not have sufficient information to
object below on the precise ground raised here, i.e., that counsel for codefendant
Lee “established a practice” of making in camera ex parte presentations to the trial
court, and that the total number of these conferences was excessive. We find no


Almost as an afterthought, defendant argues in his reply brief on appeal that

the proceedings from which he and his counsel were excluded violated the

presence requirements set forth in section 977. (Id., subd. (b)(1) [accused must be

present at specified proceedings in all felony cases, and must be present “at all

other proceedings” unless he executes a written waiver form].) Even assuming

such statutory error occurred, it was harmless for the reasons we have set forth

above. (See People v. Rundle (2008) 43 Cal.4th 76, 134, citing People v. Watson

(1956) 46 Cal.2d 818, 836.)

B. Bankruptcy Consultation

As discussed below in conjunction with a challenge to the financial-gain

special circumstance, the prosecution sought to prove that defendant killed Sonia,

at least in part, to avoid paying her $375 a month in court-ordered child support.

Over defendant’s assertion of the attorney-client privilege, the trial court admitted

prosecution evidence that he consulted with a bankruptcy attorney before the

capital crime. Defendant now argues that the trial court erred in rejecting his

privilege claim. He also asserts a violation of his federal constitutional right to

due process and a fair trial. We decline to reverse the judgment on such grounds.

As relevant here, the prosecution called Attorney Rene Lopez de Arenosa

to testify that defendant consulted him about bankruptcy shortly before the

murders. The prosecutor indicated that because the conversation occurred in front

of codefendant Lee, an extraneous third party, it was not confidential or protected

under the attorney-client privilege. Defendant disagreed and asserted the

privilege, urging the court to hold an evidentiary hearing if it had any doubts.

After taking a brief break to research the matter, the court indicated that the issue

was close, and agreed to hold a hearing. The court said it tentatively favored the

prosecution view, but noted the contrary argument that Lee (though married to

someone other than defendant) was living with defendant in an intimate


relationship at the time, and was “arguably a putative wife” whose presence at the

bankruptcy meeting did not affect confidentiality.

At the ensuing hearing, Attorney Arenosa testified that, in early 1995, he

met with defendant and his mother, Doris, to discuss her bankruptcy, and that he

once represented defendant in a paternity case. In March or April 1995, defendant

made another appointment. He arrived at Arenosa’s office with codefendant Lee,

calling her his girlfriend.

Arenosa further testified as follows: Lee was present in the room during

defendant’s 30-minute meeting with Arenosa. The discussion focused solely on

defendant’s financial condition and discharging his debts in bankruptcy.

Defendant showed Arenosa his credit card bills. According to Arenosa, he and

defendant spoke in English, except when they discussed specific debts in Spanish.

Lee’s financial situation was not discussed. Arenosa did not meet with defendant

or Lee again, and prepared no bankruptcy documents.

The only other witness at the evidentiary hearing was defendant. He

confirmed that the meeting concerned his possible bankruptcy. Defendant

testified that one of the bills he mentioned was the Household Finance loan he

shared with Lee. Defendant viewed Arenosa as his attorney, wrote him a check

for his services that day, and assumed the conversation was confidential.

Defendant recalled that the conversation occurred in English and Spanish, with

defendant speaking mainly in Spanish. On cross-examination, defendant admitted

that he and Lee had exchanged letters written in a mixture of Spanish and English.

He indicated that Lee understood Spanish, and had been studying to learn more.

After the hearing, the court entertained additional argument. Alluding to

applicable statutory law, which we discuss below, the prosecutor reiterated that

Lee’s presence defeated confidentiality between defendant and Arenosa, because

there was no reason for her to be at the meeting other than to offer emotional


support. Defendant’s counsel countered that Lee was present to serve both her and

defendant’s interests insofar as they were both liable for one of the debts that he

might discharge in bankruptcy.

The trial court rejected defendant’s claim. It concluded that his bankruptcy

planning had nothing to do with Lee, because it concerned only the discharge of

his debts. The court explained that Lee “wasn’t a necessary party” and she

“wasn’t there to further [defendant’s] interest.” Hence, the court agreed with the

prosecution, that Lee’s presence meant the conversation with Arenosa was not

confidential and that it could not be excluded on privilege grounds. However, in

an abundance of caution, the court limited the information that Arenosa could

disclose to the jury about the meeting, namely, that he met with defendant and Lee

on a certain day, and that the discussion with defendant concerned bankruptcy.

Consistent with this ruling, Arenosa testified for the prosecution at trial that

defendant and Lee visited his law office in late March or early April 1995, and that

he spoke with defendant about bankruptcy. On cross-examination, Lee’s counsel

elicited that the meeting focused on defendant’s, not Lee’s, financial state.

By statute, a client holds a privilege to prevent the disclosure of his

confidential communications with an attorney. (Evid. Code, §§ 952-954.) A

person becomes a client when he consults an attorney to retain him or secure legal

services or advice. (Id., § 951.) The transmission of information between lawyer

and client in the course of that relationship is “confidential” and protected only if

it occurs “by a means which, so far as the client is aware, discloses the information

to no third persons other than those who are present to further the interest of the

client in the consultation or those to whom disclosure is reasonably necessary for

the transmission of the information or the accomplishment of the purpose for

which the lawyer is consulted.” (Id., § 952, italics added; see People v. Gionis

(1995) 9 Cal.4th 1196, 1207.) Moreover, the client can later forfeit, or waive, the


privilege as to any confidential communication otherwise protected thereunder if

he “has disclosed a significant part of the communication or has consented to

disclosure made by anyone.” (Evid. Code, § 912, subd. (a); see People v. Barnett

(1998) 17 Cal.4th 1044, 1124.)

Defendant argues here, much as he did below, that even if Lee was not

“reasonably necessary for the transmission of the information or the

accomplishment of the purpose” of defendant’s bankruptcy consultation, she was

“present to further [their joint] interest.” (Evid. Code, § 952.) In making this

argument, defendant emphasizes the applicable Law Revision Commission

Comment stating that an attorney-client communication retains its confidential

character “even though it is made in the presence of another person — such as a

spouse, parent, business associate, or joint client — who is present to further the

interest of the client in the consultation.” (Cal. Law Revision Com. com., 29B pt.

3 West’s Ann. Evid. Code (1995 ed.) foll. § 952, p. 210.) Defendant suggests this

principle applies here because Lee was his intimate partner and they shared

liability on the Household Finance loan.

We need not, and do not, decide the issue. Even assuming error occurred, it

was harmless under any applicable standard. At most, Arenosa’s testimony

established that defendant, by seeking legal advice about declaring bankruptcy,

was deeply concerned about his personal financial state shortly before the capital

crime. However, the jury learned in great detail from other witnesses that

defendant’s debts, including his child support payments, exceeded his assets and

income, and that he was having trouble paying his bills. Defendant told one of his

supervisors, Moreno, that he was “fucked for the next seven years, because he was

going to have to file bankruptcy.” Jurors also learned that he had asked one

manager at work, Shafer, for a referral to an attorney, alluding to his child support

problems. The jury almost certainly would not have reached a different outcome


at the guilt phase had the trial court excluded Arenosa’s brief and limited

testimony confirming that a bankruptcy consultation with him had occurred.

C. Pathologist’s Testimony

During the prosecution case, the pathologist, Dr. Carpenter, testified that

200 of the 4,000 autopsies he had handled involved knife slayings. He explained

that only one of the 200 knife cases involved multiple victims, and that none

involved injuries like those Sonia and Doris sustained. Defendant unsuccessfully

objected and moved to strike this part of the witness’s testimony as irrelevant.

A short time later, the prosecutor took a different tack, asking the

pathologist about the “histories” he had received from police and coroner’s

investigators in both this case and the other 200 knife deaths he had handled.

Codefendant Lee summarily objected on hearsay grounds. In his offer of proof,

the prosecutor explained that Dr. Carpenter would testify that he had never seen a

robbery murder involving knife injuries like those inflicted on Sonia and Doris.

The prosecutor indicated that such testimony would undermine defendant’s

statements to investigators at the crime scene that Sonia and Doris were stabbed to

death during a robbery. The court overruled Lee’s objection. Dr. Carpenter then

testified that, based on case histories from investigators, the 200 knife deaths he

examined arose from either barroom brawls or domestic disputes, and that only a

few stab wounds were inflicted on each occasion.

Defendant now claims the trial court erred in admitting Dr. Carpenter’s

testimony insofar as it concerned the nonrobbery nature of the 200 other knife

deaths. As support for his inferences about the circumstances of those cases, the

witness purportedly relied on information that was not of a “type that reasonably

may be relied upon by an expert in forming [his] opinion.” (Evid. Code, § 801,

subd. (b).) The investigators’ case histories in those matters were not a proper

basis for expert opinion, defendant insists, because they were preliminary, having


been obtained before the investigations in the prior cases were complete or the

facts were adjudicated. A federal due process violation from the admission of this

evidence is alleged.

Defendant has forfeited this claim by not raising it below. (See Evid. Code,

§ 803 [authorizing exclusion, “upon objection,” of opinion testimony based on

improper matter].) The trial court was never presented with the specific objection

raised here, and was therefore denied the opportunity to determine whether experts

commonly and reasonably rely on the information used by Dr. Carpenter in

reaching opinions of the kind he offered. (Id., § 353, subd. (a).) Absent such a

record, this court likewise cannot assess the propriety of the trial court’s ruling

admitting such evidence in light of defendant’s present theory. (Id., subd. (b).)

Under such circumstances, the claim is procedurally barred on appeal.

Reversal is not warranted in any event. Contrary to defendant’s

insinuation, Dr. Carpenter’s testimony was by no means the only evidence that

“effectively identified” defendant as the killer, and that eliminated robbery as the

likely motive for the capital crime. For months, defendant expressed resentment

toward Sonia and Doris over child custody and support issues. He wished Sonia

were dead, and he wanted a restraining order against Doris. Defendant was the

last person seen alive with the victims, and he was discovered immediately after

the murders at the crime scene covered in their blood, with cuts on his hands. His

behavior and statements were suspicious. Evidence such as Lee’s actions before

and after the crime pointed to her cooperation with defendant in a plan to lure the

victims to their deaths and to make the crime look like a robbery. Any error in the

admission of Dr. Carpenter’s testimony about the nonrobbery nature of most knife

killings could not have harmed defendant under any applicable standard of



D. Provocation and Lesser Included Offense Instructions

The trial court instructed on two theories of first degree murder: murder by

means of lying in wait, and willful, deliberate, and premeditated murder.

(CALJIC Nos. 8.10, 8.11, 8.20, 8.25.) The court also instructed on

unpremeditated second degree murder (CALJIC No. 8.30), and informed the jury

of its duty to fix the degree of murder (CALJIC No. 8.70), and to give defendant

the benefit of any reasonable doubt on that issue. (CALJIC No. 8.71.) However,

the court denied defendant’s request for instructions on the lesser included offense

of voluntary manslaughter, including an instruction explaining that provocation in

the form of a sudden quarrel or heat of passion may reduce murder to

manslaughter.21 The court denied a related request for CALJIC No. 8.73, that

evidence of provocation could be considered in determining the degree of


On appeal, defendant repeats his claim that the requested instructions were

warranted because the jury could conclude that the killings, even if intentional,

occurred in a rage, such that defendant was not guilty of first degree murder and

was guilty, at most, only of a lesser offense (i.e., voluntary manslaughter or

unpremeditated second degree murder). The evidence cited in support of this


The specific manslaughter instructions the court rejected were CALJIC

Nos. 8.37 (manslaughter), 8.40 (voluntary manslaughter), 8.42 (sudden quarrel or
heat of passion), 8.50 (murder distinguished from manslaughter), 8.72 (doubt as to
murder versus manslaughter), 8.74 (unanimity on murder versus manslaughter),
8.75 (verdict forms for murder and manslaughter), and 17.49 (use of multiple
verdict forms).


CALJIC No. 8.73 states that if provocation played a role in an unlawful

homicide, but was insufficient to reduce the offense to manslaughter, the jury
should “consider the provocation for the bearing it may have on whether the
defendant killed with or without deliberation and premeditation.”


argument comes from prosecution witnesses, and includes (1) expert testimony

describing the victims’ injuries as consistent with a crime of passion, (2) the

victims’ alleged hostility and conspiracy to separate defendant from his son

Michael in the months and weeks before the killing, and (3) the asserted lack of

any plan by defendant to kill the victims. Defendant contends the instructional

error violated his right to due process and a fair trial under the Fifth, Sixth, and

Fourteenth Amendments to the federal Constitution.

Where an intentional and unlawful killing occurs “upon a sudden quarrel or

heat of passion” (§ 192, subd. (a)), the malice aforethought required for murder is

negated, and the offense is reduced to voluntary manslaughter — a lesser included

offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) Such

heat of passion exists only where “the killer’s reason was actually obscured as the

result of a strong passion aroused by a ‘provocation’ sufficient to cause an

‘ “ordinary [person] of average disposition . . . to act rashly or without due

deliberation and reflection, and from this passion rather than from judgment.” ’ ”

(Id. at p. 163.) To satisfy this test, the victim must taunt the defendant or

otherwise initiate the provocation. (People v. Spurlin (1984) 156 Cal.App.3d 119,

125-126; e.g., People v. Berry (1976) 18 Cal.3d 509, 512-515 [young wife

repeatedly subjected older husband to sexual insults, rejection, and admissions of

infidelity, causing him to strangle her in jealous rage]; cf., People v. Manriquez

(2005) 37 Cal.4th 547, 585-586 [provocation lacking where defendant calmly shot

bar patron who insulted and goaded him into firing]; see also People v. Guitierrez

(2002) 28 Cal.4th 1083, 1144 [revenge does not reduce murder to manslaughter].)

In a related vein, the “ ‘existence of provocation which is not “adequate” to

reduce the class of the offense [from murder to manslaughter] may nevertheless

raise a reasonable doubt that the defendant formed the intent to kill upon, and

carried it out after, deliberation and premeditation’ ” — an inquiry relevant to


determining whether the offense is premeditated murder in the first degree, or

unpremeditated murder in the second degree. (People v. Wickersham (1982) 32

Cal.3d 307, 329, quoting People v. Valentine (1946) 28 Cal.2d 121, 132.) First

degree willful, deliberate, and premeditated murder involves a cold, calculated

judgment, including one arrived at quickly (Koontz, supra, 27 Cal.4th 1041,

1080), and is evidenced by planning activity, a motive to kill, or an exacting

manner of death. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Such state of

mind “is manifestly inconsistent with having acted under the heat of passion —

even if that state of mind was achieved after a considerable period of provocatory

conduct.” (People v. Wharton (1991) 53 Cal.3d 522, 572.)

We see no substantial evidence that the killings were provoked and that

defendant was guilty only of the lesser offenses on which instruction was sought.

No conspiracy by the victims against defendant appears on this record. In

December 1994, after defendant and Sonia ended their relationship and stopped

living together, Sonia obtained child custody and support orders — something she

was legally entitled to do. She also took the laudable step of maintaining a

relationship with defendant’s mother, Doris — the grandmother of their son,

Michael. Thus, over Easter weekend in April 1995, Sonia helped Doris recuperate

after a brief hospital stay. Then, on May 5, 1995, about two weeks before the

capital crime, Sonia stayed in Doris’s apartment for one week. While there was

some evidence that Sonia and Doris might thereafter relocate with Michael in

another city, it is not clear defendant knew of this possibility. In any event, none

of these events were sufficient “to arouse feelings of homicidal rage or passion in

an ordinarily reasonable person.” (People v. Pride (1992) 3 Cal.4th 195, 250.)

Far from being “the source” of any rage or passion (People v. Spurlin,

supra, 156 Cal.App.3d 119, 126), Sonia was arguably taunted by defendant. In

late 1994, he began dating codefendant Lee, a mutual colleague of theirs. Before


long, coworkers and bosses learned of defendant’s new relationship. On April 16,

1995, Easter Sunday, defendant invited Sonia on a drive and admitted that his

relationship with Lee was sexual, causing Sonia to reflexively slap him. It appears

Sonia did nothing to provoke sexual jealously in defendant.

Moreover, contrary to what defendant claims, all the available evidence

suggests that, having desired Sonia’s death for a considerable period of time, he

actively planned the murders with codefendant Lee for at least one week.

Prosecution witnesses testified defendant repeatedly said he wished Sonia was

dead. The guilty look the pair displayed when spied by their managers at

Universal on May 6, 1995, implied they were scouting the crime scene at the time.

The planning process included defendant inviting the victims to a late-night

Mother’s Day meal before the murders — an invitation timed so that their guard

would likely be down. He parked in the corner against the garage wall on the top

floor with few cars nearby, creating what the prosecutor called a “killing zone.” It

appears codefendant Lee carefully timed her arrival on the scene, with defendant

first calling her from the restaurant a few minutes beforehand. Through this

arrangement, defendant had the benefit of a second person, Lee, in restraining and

killing the victims, and in removing property from the scene in order to stage a

robbery. Defendant also brought an extra knife that was found, unused, in the

stairwell of the garage. Lee carried washcloths and Ziploc bags that could have

been used to clean up and dispose of evidence — items that were found

bloodstained in or near her car along Highway 170.

Finally, there was no evidence that “heated words were exchanged or a

physical struggle took place between the victim[s] and the accused before the

fatal[ ]” attack. (People v. Wickersham, supra, 32 Cal.3d 307, 329.) As noted,

part of the lethal planning involved the victims’ last meal. According to the

waitress, the only testy behavior she saw during the Mother’s Day dinner came


from defendant, not his two female guests. Indeed, defendant told the paramedic

at the crime scene that he leaned into the car to kiss Sonia shortly before being

attacked from behind by unknown assailants. He reported no quarrel with the


In sum, all the evidence indicated either that defendant was not the killer of

Sonia and Doris (based on his robbery story at the crime scene) or that the killings

were the product of his long-simmering resentment towards them over family

issues, and that he exacted the ultimate revenge when he slashed them to death.

There was no evidence sufficient to support either voluntary manslaughter

instructions or unpremeditated second degree murders instructions based on heat

of passion. The defense request for such instructions was thus properly denied.


A. Sufficiency of Evidence of Financial Gain

In addition to sustaining special circumstances involving multiple murder

and murder while lying in wait, the jury found that Sonia’s murder “was

intentional and carried out for financial gain.” (§ 190.2, subd. (a)(1).) The

prosecution’s theory in this regard, as reflected in evidence and argument at trial,

was that defendant killed Sonia to end the $375 monthly child support payments

she received by garnishing his wages at the Bank. In various motions (e.g.,

regarding acquittal, instructions, and a new trial) defendant argued that the

prosecution did not prove he expected or received any direct financial gain from

Sonia’s death. The trial court rejected all such challenges to the financial gain

special circumstance.

Defendant argues here, as below, that he had nothing to gain from

eliminating child support payments to Sonia because he was required to support

his son Michael even after Sonia died. Under defendant’s view, the prosecution

could not sustain its burden of proof absent evidence that he anticipated an


inheritance, insurance, or other direct pecuniary gain from Sonia’s death.

Violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the federal

Constitution have allegedly occurred. We disagree.

Section 190.2, subdivision (a)(1) applies to murders motivated by financial

gain. (People v. Hamilton (1989) 48 Cal.3d 1142, 1178, applying People v.

Howard (1988) 44 Cal.3d 375, 409-410, and People v. Bigelow (1984) 37 Cal.3d

731, 751.) However, such gain need not be the sole or main motive for the

murder. (People v. Sapp (2003) 31 Cal.4th 240, 282, following People v. Noguera

(1992) 4 Cal.4th 599, 635 (Noguera).) Nor must defendant experience any actual

pecuniary benefit from the victim’s death. (People v. Edelbacher (1989) 47

Cal.3d 983, 1025 (Edelbacher).) “ ‘[T]he relevant inquiry is whether the

defendant committed the murder in the expectation that he would thereby obtain

the desired financial gain.’ ” (Ibid., quoting People v. Howard, supra, 44 Cal.3d

at p. 409.)

In Edelbacher, supra, 47 Cal.3d 983, the defendant killed his estranged

wife, with whom he had a child, in order to avoid making child support payments.

Such payments were in arrears and were the subject of a wage garnishment order

entered shortly before her death. The defendant, who struggled to pay other bills

as well, also owed his wife a substantial amount to equalize the community

property division in their pending marital dissolution action. Edelbacher first

rejected the defendant’s claim that the financial gain special circumstance was

overbroad and unconstitutional as applied there. To the contrary, this court

reasoned that it would be arbitrary and irrational to conclude that “cancellation of

a debt or the avoidance of a loss” does not constitute a financial benefit, since such

motivation is no less repugnant than killing someone for direct “profit.” (Id. at

p. 1025.) Edelbacher further found the evidence sufficient to show a financial

motive for murder. We emphasized the benefit the defendant expected to receive


either by the extinguishment of debts upon his wife’s death, or by gaining custody

of his son and acquiring control of the son’s inheritance from the estate. (Id. at

p. 1026.)

Likewise, the jury could readily infer beyond a reasonable doubt that

defendant killed Sonia because he believed her death would ease his financial

strain. The evidence showed that the $375 monthly child support obligation

substantially reduced his net pay, that his modest income from the Bank was his

main asset, that his liabilities overshadowed his assets, and that he had difficulty

paying his monthly bills such that he worried about declaring bankruptcy. More to

the point, defendant perceived his child support obligation to Sonia as a

tremendous burden, calling her a “bitch” and “whore” who deserved to die, and

saying that his financial future would be “fucked” if nothing changed. The jury

could conclude that defendant sought to benefit financially from Sonia’s death by

gaining control of the money which, by court order, he was paying her for

Michael’s support, and by having the ability to decide that less money should be

spent in that regard. The prosecution made a similar point in closing argument.

We reject defendant’s related claim that the financial gain special

circumstance is unconstitutionally vague and overbroad under federal law. As

noted above, a similar contention failed in Edelbacher, supra, 47 Cal.3d 983.

Nothing in our interpretation of the statute there, or its application here, extends

death eligibility to every homicide involving a family member to whom the killer

owed a duty of support. The special circumstance is limited to those murders,

including those intrafamilial murders, committed with the expectation that they

would produce the desired financial benefit. (Id. at p. 1025.) No overbreadth or

vagueness problem appears. (Accord, Noguera, supra, 4 Cal.4th 599, 636.)


B. Validity of Lying-in-Wait Special Circumstance

The prosecution alleged, and the jury found, that defendant “intentionally

killed” both victims “while lying in wait.” (§ 190.2, former subd. (a)(15), added

by Prop. 7, § 6, approved by voters, Gen. Elec. (Nov. 7, 1978); see now id., subd.

(a)(15), as amended by Prop. 18, approved by voters, Prim. Elec. (Mar. 7, 2000)

eff. Mar. 8, 2000 [changing “while” lying in wait to “by means of” lying in wait].)

On appeal, defendant claims the special circumstance applicable to his crime fails

to adequately narrow the class of death-eligible murders because it applies “to

virtually all homicides.” He suggests the trial court erred in rejecting a similar

claim he raised several times at trial (e.g., in moving for acquittal, discussing

proposed instructions, and seeking a new trial). A due process violation under the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution is

asserted here.

However, as we have explained many times before, the version of the

lying-in-wait special circumstance at issue here is not unconstitutionally overbroad

on the ground urged by defendant. It is limited to intentional murders that involve

a concealment of purpose and a meaningful period of watching and waiting for an

opportune time to attack, followed by a surprise lethal attack on an unsuspecting

victim from a position of advantage. (People v. Morales (1989) 48 Cal.3d 527,

557.) Such is the case where, as here, the defendant ambushes the victim after

luring him or her to a secluded spot on a pretext. (E.g., Bonilla, supra, 41 Cal.4th

313, 331-332 & fn. 6; People v. Webster (1991) 54 Cal.3d 411, 448-449.) We

therefore conclude no constitutional violation or other error occurred.


A. Effect of Joinder on Sentencing

Near the start of the guilt phase defendant moved for a mistrial and,

alternatively, for severance based on a newspaper article published the same day


concerning a Texas capital case. The article suggested that female murderers were

less likely to be executed for capital crimes than their male counterparts.

Defendant, who presented no evidence that any juror read the article, insisted that

a joint penalty trial would unduly prejudice him because the jury was likely to

show “deference” to codefendant Lee simply because she was a woman. The trial

court denied the motion. It noted that the motion could be renewed later in the

event defendants were convicted and faced a joint penalty trial — an option

defendant never exercised.

On appeal, defendant claims that a joint penalty trial is “inherently skewed”

against male defendants and in favor of female codefendants due to “misplaced

chivalry” by lay jurors. The court’s failure to grant severance on this ground

allegedly violated various federal and state constitutional rights. Defendant

emphasizes Eighth Amendment requirements favoring individualized sentencing

determinations (see Lockett v. Ohio (1978) 438 U.S. 586, 605 (Lockett) (plur. opn.

by Burger, C. J.)), and due process prohibitions against joint trials that are grossly

unfair. (See Lewis and Oliver, supra, 39 Cal.4th 970, 998.)

No error occurred. Defendant offers only generalized assumptions about

cultural stereotypes and gender biases in criminal cases. Nothing suggests the jury

failed to properly perform its sentencing function in reaching different outcomes

for defendant (a death verdict) and Lee (a hung jury leading to LWOP). Indeed,

there were bases in the evidence for this disparity. Defendant was the leader in the

killings, and codefendant Lee was the determined follower. The prosecutor noted

that they were “equally responsible” for the slayings, but that the penalty

determination was “separate” as to each defendant.

Moreover, in advising the jury how to weigh and consider the factors in

aggravation and mitigation, the instructions stated, among other things, that the

penalty determination as to each defendant must be “based solely on the evidence


applicable to that defendant, uninfluenced by what penalty has been or may be

determined as justified and appropriate as to the other defendant.” (CALJIC No.

8.84.) Jurors were also told that penalty must be “decide[d] separately” as to each

defendant. (CALJIC No. 17.00.)

In light of the foregoing, the jury was adequately apprised of the

individualized nature of the sentencing determination. No evidence of gender bias

or improper comparisons between defendants appears. The claim of error fails.

B. “Skipper/Lockett” Error

At the penalty phase, defendant sought to introduce the testimony of

Barbara Schochet, a psychotherapist Sonia visited several times in the weeks

before the capital crime. Counsel argued that Sonia’s statements to Dr. Schochet

during therapy would “blunt” prosecution evidence that portrayed Sonia and her

family in an unblemished light, and that suggested Sonia and her family were

close. Counsel also argued that Sonia’s distrust and insecurity toward her own

family, and her belief that she could easily manipulate defendant, caused her to act

in ways that “pushed him over the edge” and showed he was not “the main actor”

in the crime.23


Defense counsel did not link Dr. Schochet’s proffered testimony to any

specific statutory sentencing factor. Counsel suggested, however, that Sonia’s
statements during therapy were offered to mitigate penalty under various theories,
such as to counter prosecution evidence concerning the circumstances of the
capital crime, including victim impact testimony (see § 190.3, factor (a)), to show
defendant acted under extreme duress or under the substantial domination of
another (see id., factor (g)), to show he was a mere accomplice whose participation
in the capital crime was relatively minor (see id., factor (j)), and to minimize his
culpability and otherwise extenuate the gravity of the capital crime. (See id.,
factor (k).)


The prosecutor objected on grounds the evidence violated the

psychotherapist-patient privilege, the hearsay rule, and relevance requirements.

The trial court granted the prosecutor’s request for a hearing on the admissibility

of the proffered testimony.

At the hearing, Dr. Schochet took the stand and read out loud from 10

pages of handwritten notes that she made during Sonia’s therapy sessions. Sonia

reportedly made the following statements therein: As to her relationship with

defendant, Sonia worried that she would lose her son to defendant, she viewed her

relationship with defendant as volatile, and she found him to be unavailable when

she needed him. As to her relationship with her own parents, Sonia feared

becoming as dependent on defendant as her mother had become with respect to

her father. Sonia recalled the trauma her mother experienced when her father left

the marriage after 25 years and fathered a child with someone else. As to

defendant’s personality, Sonia described him as sweet and nice, and “easily

influenced” to the point that she could “tell him what to do.” According to Sonia,

defendant was not as smart as she was, and she preferred someone who could take

more control. However, she also believed he was vindictive, short-tempered, and


As pertinent here, the trial court sustained the prosecutor’s relevance

objection and excluded Dr. Schochet’s testimony. The court reasoned that the

feelings Sonia expressed to Dr. Schochet were irrelevant absent evidence that she

communicated them somehow to defendant, and that his conduct was affected as

result. Otherwise, the court said, any mitigating inferences were speculative.

On appeal, defendant claims the trial court erred in not finding Dr.

Schochet’s testimony relevant and admissible on the theories he presented below.

In his view, the jury could reasonably infer from Sonia’s description of her own

state of mind that she had started to detach from both defendant and her own


family after giving birth to Michael, that she had turned to defendant’s mother,

Doris, for support in raising Michael, that she and Doris had colluded to alienate

defendant from Michael, and that such actions sent defendant into a rage that

caused him to kill both women. By preventing the jury from taking these

inferences into account, the trial court’s ruling allegedly violated defendant’s right

to present relevant mitigating evidence, and to due process and a fair penalty trial,

under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal


As noted by defendant, the federal Constitution requires that the sentencer

in a capital case not be precluded from considering relevant mitigating evidence.

(Skipper v. South Carolina (1986) 476 U.S. 1, 4; Eddings v. Oklahoma (1982) 455

U.S. 104, 110; Lockett, supra, 438 U.S. 586, 604 (plur. opn. by Burger, C. J.)

Such evidence includes “any aspect of a defendant’s character or record and any

of the circumstances of the offense that the defendant proffers as a basis for a

sentence less than death.” (Lockett, supra, at p. 604; accord, People v. Easley

(1983) 34 Cal.3d 858, 877-878 & fn. 10.) However, while the range of

constitutionally pertinent mitigation is quite broad (People v. Whitt (1990) 51

Cal.3d 620, 647), it is not unlimited. Both the United States Supreme Court and

this court have made clear that the trial court retains the authority to exclude, as

irrelevant, evidence that has no logical bearing on the defendant’s character, prior

record, or the circumstances of the capital offense. (Lockett, supra, 438 U.S. at

p. 604, fn. 12; Coffman and Marlow, supra, 34 Cal.4th 1, 115-116; People v. Frye

(1998) 18 Cal.4th 894, 1015.)

Here, the trial court properly determined “in the first instance” that the

proffered mitigation was irrelevant. (People v. Frye, supra, 18 Cal.4th 894, 1015.)

Defendant sought to prove that Sonia’s insecurities and distrust of her own family

caused her to act in ways that estranged her from them and from defendant, and


that drove her to form a close bond with Doris. Defendant also sought to prove

that Sonia’s view of defendant as someone she could “easily influence[ ]” caused

her to act in ways that provoked him into killing both her and Doris. However,

Sonia’s personal thoughts and feelings, as expressed during psychotherapy, are not

the same as actions. Defendant’s contrary assumption defies common sense.

Thus, the court properly determined that Sonia’s state of mind had no tendency in

reason to prove the occurrence of a chain of events triggering a lethal response on

defendant’s part — events necessary to raise the mitigating inferences he has

argued here and below. (See Evid. Code, §§ 210, 351.) We find no constitutional

violation or evidentiary error in the exclusion of Dr. Schochet’s testimony.

C. Lingering Doubt Evidence

Defendant contends the trial court violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution in not allowing

consideration of any doubts that may have “lingered” in the minds of jurors who

were not certain of his guilt beyond all doubt. (See People v. Zapien (1993) 4

Cal.4th 929, 989.) As we shall explain, this claim focuses on two categories of

evidence that, as he did below, defendant insists showed Sonia’s “manipulation”

and “provocation” of defendant: (1) Dr. Schochet’s testimony describing Sonia’s

statements about defendant, their relationship, and her own family during therapy,

and (2) a pair of letters Sonia wrote to defendant in November and December

1994, in which she expressed her love for him and her interest in resuming an

intimate relationship.

The trial court did not mishandle this evidence for various reasons

unrelated to the concept of lingering doubt. First, as noted above, Sonia’s

statements to Dr. Schochet expressing feelings about defendant and other family

members did not establish “manipulati[ve]” or “provocati[ve]” acts on the part of


Sonia or defendant, as he claims. The court thus properly excluded this evidence

as having no bearing on any mitigating inference defendant sought to raise.

Second, defendant erroneously implies in his opening brief on appeal that

the trial court excluded Sonia’s letters to defendant. However, after noting that

they were received and presumably read by defendant and were found in his

possession, the trial court admitted the letters into evidence. The court reasoned

that counsel, to the extent he deemed the letters “relevant to the issues before the

jury,” could “make an argument as to how [such evidence] may have affected

[defendant].” No constitutional violation or other error on lingering doubt


D. Prosecutor’s Closing Argument

Defendant argues that the prosecutor committed misconduct in closing

argument at the penalty phase, that the trial court exacerbated the issue to some

extent, and that his rights under the Fifth, Eighth, and Fourteenth Amendments of

the federal Constitution were thereby violated. We disagree.

Defendant’s main complaint concerns the prosecutor’s statements that “the

minimum penalty” is not adequate for some killers, and that, on behalf of the

“millions of people in the State of California who enacted the death penalty,”

defendant deserved the “maximum” penalty for the capital crime. Defendant

(along with codefendant Lee) objected to these remarks. The trial court responded

by telling the jury to disregard public opinion in sentencing defendant, that the

applicable law allowed the jury to choose between LWOP and death, and that the

choice was each juror’s alone to make. A short time later, in defendant’s closing

argument, the court barred counsel from discussing the penalties associated with

any form of criminal homicide (e.g., manslaughter) other than first degree murder.

Contrary to what defendant claims, the prosecutor did not mischaracterize

LWOP as a “slap on the wrist,” and the court did not err in denying rebuttal


argument on the “range of penalties for criminal homicide.” The prosecutor’s

remarks concerning “minimum” and “maximum” penalties properly implied that

LWOP and death were the only two penalties available in defendant’s case. (See,

e.g., Prince, supra, 40 Cal.4th 1179, 1295 [LWOP is the minimum punishment];

People v. Memro (1995) 11 Cal.4th 786, 879 [death is worse than LWOP]; People

v. Gonzalez (1990) 51 Cal.3d 1179, 1230, fn. 27 [defendant deserves the

maximum penalty].) There was no misconduct in this regard, and nothing for

defendant to rebut.

Regarding the prosecutor’s related reference to the electorate, any

impropriety was cured by the court’s admonition to disregard the comment and to

follow the sentencing instructions. Jurors could not have been misled to impose

death for abstract political reasons unrelated to the evidence in defendant’s case.

(Compare People v. Rowland (1992) 4 Cal.4th 238, 276 [questioning references to

voters on death penalty matters] with People v. Jones (1998) 17 Cal.4th 279, 309

[allowing references to jury’s civic duty to return a verdict based on the


The last instance of alleged misconduct occurred when the prosecutor

called defendant the “worst of the worst” with respect to death-eligible murderers.

Defendant insists this comment urged imposition of the death penalty for reasons

extraneous to his case.

The claim is forfeited for failure to object below. (See Stitely, supra, 35

Cal.4th 514, 572.) It also lacks merit. Our prior cases suggest it is not uncommon

for defense counsel to argue that his client is not the “worst of the worst” in terms

of death eligibility, and that death is not warranted. (See, e.g., People v.

Benavides (2005) 35 Cal.4th 69, 110; People v. Hughes (2002) 27 Cal.4th 287,

400; People v. Sakarias (2000) 22 Cal.4th 596, 638.) Here, the prosecutor told

jurors that he expected such an argument from the defense. There was nothing


improper about this approach. (E.g., People v. Ochoa (2001) 26 Cal.4th 398, 450-

452 [prosecutor may address counsel’s suggestion that defendant is not in the

group deserving death (i.e., the worst of the worst) by noting that he is not in the

group deserving life (i.e., the best of the worst)].) Indeed, the prosecutor linked

his argument to the premeditated, painful, and personal nature of the murders. We

will not reverse the judgment on misconduct grounds.

E. Effect of Ex Parte In Camera Meetings on Modification Motion

Defendant registers a second complaint on appeal about the 10 ex parte in

camera proceedings that occurred between the trial court and codefendant Lee’s

counsel, insisting they impaired his federal and state constitutional rights at

sentencing (i.e., to due process and to freedom from cruel and unusual

punishment). He assumes that Lee’s counsel, Hall, presented adverse extraneous

information about defendant during these proceedings, that such information

tainted the court’s view of the evidence in aggravation and mitigation, and that the

court erroneously denied his automatic motion to modify the penalty verdict under

section 190.4, subdivision (e) (section 190.4(e)) as a result. The primary concern

seems to be that the court ignored mitigating evidence and overemphasized

aggravating evidence.

As a preliminary matter, we agree with the Attorney General that defendant

has forfeited his challenge to the section 190.4(e) ruling by failing to object below.

Defendant cannot object for the first time on appeal where, as here, the hearing,

which occurred in 1998, postdated the finality of People v. Hill (1992) 3 Cal.4th

959, 1013. (Lewis and Oliver, supra, 39 Cal.4th 970, 1064.)

On the merits, the record of the section 190.4(e) hearing belies any claim of

error. In ruling on the motion, the trial court applied the correct legal standard. It

referred more than once to its duty to make an independent determination

concerning the propriety of the death penalty, and to independently reweigh the


evidence in aggravation and mitigation and determine whether, in the court’s own

judgment, the weight of the evidence supports the jury verdict. (People v.

Burgener (2003) 29 Cal.4th 833, 891.)

In reviewing the evidence in mitigation, the trial court acknowledged that,

until the time of the capital crime, defendant had lived a law abiding life, and had

done “some good things.” The court also observed that the outcome at sentencing

might have been different had the murders actually occurred during a “lengthy and

vituperative [family] argument” in which defendant suddenly grabbed a knife and

killed Sonia and Doris in a blinding rage. However, the court made clear in

independently assessing the evidence, that the death verdict was amply supported

by the planned and premeditated nature of the murders, and the cruel and brutal

manner in which they were committed.

Along these lines, the court said, “the premeditation in this case was

exceptional. It was calculated. It was not in any sense emotionally compelled.”

Also critical in the court’s view was that defendant destroyed his own family. The

court emphasized that “[h]e’s deprived [his son] Michael of his mother and he’s

deprived Michael of his father, namely, Mr. Carasi himself. He made this child an

orphan. And in his presence.”

As to the 10 closed proceedings to which defendant now objects, we note

that no discussion about the appropriate penalty for either defendant appears in the

relevant transcripts, most of which are still sealed. The trial court also made no

mention during the section 190.4(e) hearing to such proceedings or to its

interactions with Lee’s counsel at any point in time. Nor did the court deny the

modification motion based on aggravating evidence not admitted at trial. Thus,

our review of the record leads us to conclude that the court carefully and properly

performed its duty in denying the motion to modify the death verdict under section

190.4(e). We reject defendant’s contrary claim.


F. Validity of Death Penalty Law

Defendant contends the death penalty law under which he was sentenced

denied him due process and a fair penalty determination under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution, and under parallel

provisions of the state Constitution. We have previously rejected similar claims

and do so again here. Thus, the homicide and death penalty statutes adequately

narrow the class of first degree murderers eligible for the death penalty. The

scheme is not overbroad because of the sheer number, nature, and scope of the

special circumstances, including the lying-in-wait and financial-gain special

circumstances applied here. (Stitely, supra, 35 Cal.4th 514, 573, and cases cited

therein.) Nor did the trial court err in failing to instruct that the standard of proof

for finding aggravating factors must be beyond a reasonable doubt, or that the jury

must unanimously agree on this issue. High court decisions in Apprendi v. New

Jersey (2000) 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S. 584, have not

changed our conclusions in this regard. (Boyer, supra, 38 Cal.4th 412, 485, and

cases cited therein.)


The judgment is affirmed in its entirety.






I join the majority in affirming defendant’s two murder convictions and the

special circumstances of multiple murder, murder for financial gain, and lying in

wait. For the reasons given in Justice Werdegar’s concurring and dissenting

opinion, however, I would reverse the judgment of death, based on the trial court’s

refusal to ask prospective jurors whether the circumstances that defendant killed

his mother and the mother of his child would cause them automatically to vote for

death, without consideration of the mitigating circumstances presented at the

penalty phase.

I write separately to explain my views on another issue: Whether defendant

made a prima facie showing that the prosecution’s peremptory challenges against

prospective women jurors were motivated by group bias. On this issue, as

explained below, I disagree with the majority’s reasoning underlying its

conclusion (with which I agree) that defendant failed to make a prima facie case.


During jury selection, the prosecutor exercised 23 peremptory challenges,

20 of them against women. At the end of voir dire, counsel for codefendant

Donna Lee moved to strike the jury panel on the ground that the prosecutor had

impermissibly exercised sex-based peremptory challenges. Defendant joined in

codefendant Lee’s motion.


The trial court, commenting that the percentage of the prosecution’s

challenges against women was “eyebrow-raising, to say the least,” took the motion

under submission to determine whether the defense had made a prima facie

showing that the challenges were motivated by group bias. More than a month

later, long after the evidentiary portion of the trial had started, the court denied the

motion without asking the prosecution to give its reasons for the challenges,

explaining that it had considered “the background of the jurors who were

excused,” the gender of the persons selected to serve as jurors, and the

circumstance that the majority of the panel consisted of women.


Peremptory challenges against prospective jurors may not be based on

impermissible group bias, such as race or sex. (Batson v. Kentucky (1986) 476

U.S. 79; J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129; People v.

Wheeler (1978) 22 Cal.3d 258 (Wheeler).) The party objecting to the challenges

must establish a prima facie case of group bias “ ‘by showing that the totality of

the relevant facts gives rise to an inference of discriminatory purpose.’ ” (Johnson

v. California (2005) 545 U.S. 162, 168.) The challenger must then offer a

justification for the strikes, after which the trial court must decide whether the

party objecting to the peremptory challenges has shown that they were motivated

by group bias. (Ibid.)

Ordinarily, this court reviews for substantial evidence a trial court’s

determination that the defendant failed to make the requisite prima facie showing

of impermissible group bias. (People v. Bonilla (2007) 41 Cal.4th 313, 341;

People v. Jones (1998) 17 Cal.4th 279, 293.) But here, as the majority explains,

we must “independently determine whether the record permits an inference that

the prosecutor excused jurors on prohibited discriminatory grounds.” (Maj. opn.,

ante, at p. 33; see also People v. Kelly (2007) 42 Cal.4th 763, 779.)


In Wheeler, this court gave examples of evidence relevant to establish a

prima facie showing of bias: “[T]he party may show that his opponent has struck

most or all of the members of the identified group from the venire, or has used a

disproportionate number of his peremptories against the group. He may also

demonstrate that the jurors in question share only this once characteristic — their

membership in the group — and that in all other respects they are as

heterogeneous as the community as a whole. Next, the showing may be

supplemented when appropriate by such circumstances as the failure of his

opponent to engage these same juror in more than desultory voir dire . . . . Lastly,

. . . the defendant need not be a member of the excluded group in order to

complain of a violation of the representative cross-section rule; yet if he is, and

especially if in addition his alleged victim is a member of the group to which the

majority of the remaining jurors belong, these facts may also be called to the

court’s attention.” (Wheeler, supra, 22 Cal.3d at pp. 280-281, italics added, fn.

omitted; see also People v. Kelly, supra, 42 Cal.4th at pp. 779-780.)

Here, the prosecution exercised a disproportionate number of its

peremptory challenges — 20 out of 23 challenges, or 87 percent — against

women. Also belonging to that group was codefendant Lee, against whom the

prosecutor was seeking the death penalty. Because the evidence of guilt as to both

defendant and codefendant Lee was overwhelming, the primary issue at trial was

likely to be that of penalty, and the prosecutor may have feared that women would,

out of sympathy for Lee, not vote for death.1

These facts, according to the majority, do not give rise to an inference of

discriminatory purpose. (Johnson v. California, supra, 545 U.S. 162, 168.) The


Indeed, the jury convicted both defendants as charged, but it was unable to

reach a verdict on penalty as to codefendant Lee.


majority explains: “[A]fter initially accepting the panel without exercising any

peremptory challenges at all, the prosecutor accepted the panel eight additional

times with seeming disregard for the number of females or the ratio of female to

male jurors. On two such occasions, the prosecution was willing to have

defendant tried by a jury of eight women and four men. Two other times, there

were six men and six women in the jury box — another split suggesting men were

not being favored over women. The prosecution chose, on two more occasions, to

peremptorily excuse a man when the panel consisted of seven or more women.”

(Maj. opn., ante, at p. 35.) This “pattern of excusals and acceptances” (ibid.), the

majority concludes, demonstrates that the prosecutor’s peremptory challenges

were not sex-based.

The majority’s reasoning is unpersuasive in light of the tactical realities of

jury selection in a multidefendant capital case. True, the prosecutor here twice

accepted jury panels that included eight women. But this occurred very early in

the jury selection process, when defendant and codefendant Lee had many

peremptory challenges remaining and it was highly unlikely that both would

accept the jury panel as then constituted. Understanding this, an experienced

prosecutor might well perceive a tactical advantage in declining to exercise a

peremptory challenge at that stage. By conserving peremptory challenges early in

the jury selection process, the prosecutor could expect to have more remaining

challenges than the defense as jury selection neared its conclusion. In particular, a

prosecutor wanting to reduce the number of women on the final jury panel might

well accept a panel containing a high ratio of women to men early in the selection

process, with the expectation that peremptory challenges could more effectively be

used to reduce this ratio later, after the two defendants had exhausted their

peremptory challenges.


The majority points out that the prosecutor several times accepted jury

panels of six men and six women. (Maj. opn., ante, at p. 35.) True. But in a case

where a majority of the prospective jurors under consideration were women, a

prosecutor biased against women could reasonably have regarded such a panel as

acceptable. Nor is it significant that here the prosecutor excused two men when

the panel contained a majority of women. A prosecutor biased against women

would not necessarily permit that bias to prevail over all other considerations and

might well exercise some peremptory challenges against men whose questionnaire

answers and voir dire responses suggested that they would be highly

unsympathetic to the prosecution in the particular case.

The above-mentioned “pattern of excuses and acceptances” (maj. opn.,

ante, at p. 35) is the sole basis for the majority’s rejection of defendant’s claim of

impermissible group bias underlying the prosecution’s exercise of 20 out of 23

peremptory challenges against women. Had that pattern been the only evidence

on this issue, I would have concluded that defendant has established a prima facie

case of impermissible group bias. But there is other evidence, not at all discussed

by the majority, that strongly indicates sex-neutral reasons for the prosecutor’s


To determine whether a defendant has made the requisite prima facie

showing, this court often examines the background of the jurors who were

excused, as revealed by their answers to the juror questionnaires and during voir

dire, to see whether those answers suggest a reason for the prosecutor’s

peremptory challenges. (See, e.g., People v. Bonilla, supra, 41 Cal.4th at pp. 346-

349.) After a careful and thorough examination of answers given in the jury

questionnaires and at voir dire, I conclude there were obvious sex-neutral reasons

for the challenges.


The answers of 12 of the 20 women who were excused by the prosecutor

show a strong reluctance to impose the death penalty. Defendant concedes that

seven of the women challenged (Prospective Jurors Mariannel B.-D., Rose W.,

Joyce C., Bianca G., Abigail H., Deanna M., and Lois S.) “did express some

aversion to [the] death penalty in principle or in practice.” Similar views were

expressed in the answers of five other prospective jurors (Jeanette A., Janet H.,

Carol R., Linda R., and Rosemarie K.). Defendant, however, insists that these five

women were not opposed to the death penalty because each had checked off a box

on the jury questionnaire indicating a desire to keep the current death penalty law

“as it is.” But, as explained below, other questionnaire answers by these five

women indicated that even if they were not opposed to the death penalty in the

abstract, they would personally be reluctant to vote for it.

Question 52 on the jury questionnaire asked: “Given the fact that you have

two options available to you, can you see yourself, in an appropriate case,

choosing the death penalty?” Prospective Juror Jeanette A. answered “no.”

Question 51 asked whether, in an appropriate case, life imprisonment without the

possibility of parole, rather than death, would be an option. Her answer was

“yes.” As to Prospective Juror Janet H., she wrote “I don’t know!” in answer to

question 52, and “yes” to question 51. These answers strongly suggest that both

women would be reluctant to vote for death.

Prospective Juror Carol S. wrote on her questionnaire, “I’d be loath to vote

for the death penalty,” explaining, “I believe that violence leads to more violence,

killing to more killing.” She held “very strong” feelings on the death penalty.

Although elsewhere in her questionnaire she voiced a willingness to vote for death

“if the circumstances called for it,” it is likely that the prosecutor viewed these

answers as indicative of a strong reluctance to vote for death.


Prospective Juror Linda R. wrote on the questionnaire: “I don’t particularly

like the death penalty, but I understand that in certain circumstances it is

appropriate.” Explaining her dislike for the death penalty, she wrote: “No human

has the right to decide life or death as does God.” Based on these comments, the

prosecutor could reasonably conclude that Linda R. would have a problem voting

for death.

Prospective Juror Rosemarie K.’s answers to the questionnaire suggest that

she had previously been opposed to the death penalty, but that she now believed it

was appropriate if the offense was “horrendous,” such as the brutal murder of a

child. The prosecutor could have reasonably concluded from this answer that for

this prospective juror, this case would not be sufficiently “horrendous” to justify

the death penalty because the victims were adults.

Thus, with respect to the 12 prospective jurors discussed above, their

expressed reluctance to impose the death penalty provides a proper and sex-neutral

basis for the prosecutor’s peremptory challenges.

Five other women challenged by the prosecutor had extensive professional

or personal involvement in counseling or psychology. Sally M.-P. was a licensed

clinical social worker (LCSW) who had a masters degree in social work and was

considering pursuit of a Ph.D. in psychology; she had been a therapist for seven

years. Gloria B., too, was an LCSW, with a master’s degree in social work; she

supervised a sexual trauma team that included psychologists, social workers, and a

psychiatrist. Carolyn S. had a master’s degree in “counseling psychology” and

had been a vocational rehabilitation counselor. Angela G. had recently graduated

from college with a degree in psychobiology and planned to attend medical

school. And Linda D. had a bachelor’s degree in psychology and was living with

a biofeedback therapist who had an “MFC license” and had worked as a counselor.


Psychiatric testimony usually plays a major role for the defense at the

penalty phase of a capital case. Here, codefendant Lee relied on such testimony at

both the guilt and the penalty phase of this case. In excusing prospective jurors

with a strong background in counseling or psychology, the prosecutor may well

have been concerned that they would give greater credence to such testimony.

Two other women excused by the prosecutor were closely associated with

persons likely to be unsympathetic to the prosecution. Prospective Juror Rose P.

was a former member of the American Civil Liberties Union and had twice

married men who had served prison sentences, one for murder; she herself had

twice been arrested (though not convicted). Juror Erma R.’s son was a criminal

defense attorney previously employed by the Los Angeles County Public

Defender’s Office, which represented defendant in this case.

The above discussion accounts for 19 out of the 20 women challenged by

the prosecutor. The prosecutor’s reasons for excusing the 20th woman are not

clear from the record. Nevertheless, the presence of sex-neutral reasons for 19 of

the 20 peremptory challenges against women suggests that the challenges were

based on reasons other than the sex of the prospective jurors. These reasons,

rather than the “pattern of excusals and acceptances” relied on by the majority

(maj. opn., ante, at p. 35), forms the basis for my conclusion that the trial court

properly denied defendant’s Batson-Wheeler motion asserting impermissible bias

against women as a group.





Would knowledge that defendant’s offenses involved the premeditated

murder of his own mother and the mother of his child cause some otherwise

impartial jurors to invariably vote for a sentence of death? I believe the answer is

yes and that the trial court therefore erred in failing to question jurors about these

facts of defendant’s case. I therefore dissent from the affirmance of the penalty


Individuals accused of capital crimes enter a long journey through our

judicial system in which the end result may be the loss of their life at the hand of

the state. Because it is a constitutional imperative that “[n]o state shall . . . deprive

any person of [his] life . . . without due process of law,”1 the procedures governing

capital trials are designed to ensure fundamental fairness to the accused. We

address in this case the procedures applicable to a critical early phase of a capital

trial: jury selection.

It is vitally important to the accused in particular and society in general that

the jury selected for trial in a capital crime is fair and impartial,2 and is composed


United States Constitution, Fourteenth Amendment; see also California

Constitution, article I, section 7, subdivision (a) (same).


See United States Constitution, Sixth Amendment (“the accused shall enjoy

the right to a speedy and public trial, by an impartial jury” [italics added]); see
also California Constitution, article I, section 16 (“Trial by jury is an inviolate
right and shall be secured to all”).


of persons who would neither always vote for a life sentence nor always vote for

death, but would weigh the applicable factors shown by the evidence and follow

the law as instructed by the trial court. “We have long recognized that ‘[t]he right

to unbiased and unprejudiced jurors is an inseparable and inalienable part of the

right to a trial by jury guaranteed by the [C]onstitution.’ (Lombardi v. California

St. Ry. Co. (1899) 124 Cal. 311, 317.)” (People v. Earp (1999) 20 Cal.4th 826,

852 (Earp).) “In a state such as California that in capital cases provides for a

sentencing verdict by a jury, ‘the due process clause of the Fourteenth Amendment

of the federal Constitution requires the sentencing jury to be impartial to the same

extent that the Sixth Amendment requires jury impartiality at the guilt phase of the

trial.’ [Citations.] California’s Constitution provides an identical guarantee.” (Id.

at pp. 852-853.)

To ensure impartiality in this case, defendant sought to ask prospective

jurors whether they could remain fair and impartial upon learning that he was

accused of luring his own mother, and the mother of his young child, into a fatal

ambush on Mother’s Day. The majority declines to address the merits of

defendant’s claim, asserting he forfeited it by failing to raise it at trial. As

explained below, the majority gives the record a parsimonious reading, but in any

event, any failure on defendant’s part to make a more specific objection would be

excused on grounds of futility.

On the merits, the trial court’s refusal to question prospective jurors about

the matricidal and intrafamilial aspects of the case makes it impossible to

determine whether any of the jurors held the disqualifying view that the death

penalty “should be imposed invariably and automatically on any defendant”

(People v. Cash (2002) 28 Cal.4th 703, 723 (Cash)) who had killed both his own

mother and the mother of his child. Accordingly, the penalty judgment must be




The process by which a large pool of prospective jurors are winnowed

down to ensure that the final 12 jurors (plus some alternates) satisfy the

constitutional requirement of impartiality is called voir dire, meaning “To speak

the truth.” (Black’s Law Dict. (5th ed. 1979) p. 1412, col. 2.) “ ‘Voir dire plays a

critical function in assuring the criminal defendant that his Sixth Amendment right

to an impartial jury will be honored. Without adequate voir dire the trial judge’s

responsibility to remove prospective jurors who will not be able impartially to

follow the court’s instructions and evaluate the evidence cannot be fulfilled.’ ”

(Earp, supra, 20 Cal.4th at p. 852.)

Voir dire examination protects an accused’s right to a fair trial “ ‘by

exposing possible biases, both known and unknown, on the part of potential jurors.

Demonstrated bias in the responses to questions . . . may result in a juror’s being

excused for cause; hints of bias not sufficient to warrant challenge for cause may

assist parties in exercising their peremptory challenges.’ [Citation.] ‘The ability

of a defendant, either personally, through counsel, or by the court, to examine the

prospective jurors during voir dire is thus significant in protecting the defendant’s

right to an impartial jury.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 689-690


Although courts have broad discretion in deciding what questions to ask on

voir dire (People v. Cleveland (2004) 32 Cal.4th 704, 737; Mu’Min v. Virginia

(1991) 500 U.S. 415, 424), such discretion is not limitless. In capital cases, such

questions should be directed at determining whether “the juror’s views would

‘prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985) 469

U.S. 412, 424.) Prospective jurors holding such disqualifying views may be

excluded from a capital jury for cause whether the juror’s views favor or disfavor


the death penalty. (Cash, supra, 28 Cal.4th at p. 720; see People v. Livaditis

(1992) 2 Cal.4th 759, 772-773.)

In appropriate cases, voir dire questioning, to be effective, should include

the facts or circumstances of the case at hand so the questioning does not occur in

a factual vacuum. “A prospective juror who would invariably vote either for or

against the death penalty because of one or more circumstances likely to be

present in the case being tried, without regard to the strength of aggravating and

mitigating circumstances, is . . . subject to challenge for cause.” (People v.

Kirkpatrick (1994) 7 Cal.4th 988, 1005, italics added.) “Consequently, to preserve

the right to a fair and impartial jury on the question of penalty, the death

qualification process must probe ‘prospective jurors’ death penalty views as

applied to the general facts of the case.’ ” (Earp, supra, 20 Cal.4th at p. 853,

italics added.)

We applied these principles to reverse the penalty phase judgment in Cash.

In that case, the prosecution proposed to introduce evidence at the penalty phase

that the defendant, when he was 17 years old, had murdered his elderly

grandparents. His defense attorney sought to question prospective jurors to

determine whether they “could return a verdict of life without parole for a

defendant who had killed more than one person, without revealing that defendant

had killed his grandparents.” (Cash, supra, supra, 28 Cal.4th at p. 719.) This

court unanimously found the trial court erred in denying this request. “[T]he trial

court’s ruling prohibited defendant’s trial attorney from inquiring during voir dire

whether prospective jurors would automatically vote for the death penalty if the

defendant had previously committed another murder. Because in this case

defendant’s guilt of a prior murder (specifically, the prior murders of his

grandparents) was a general fact or circumstance that was present in the case and

that could cause some jurors invariably to vote for the death penalty, regardless of


the strength of the mitigating circumstances, the defense should have been

permitted to probe the prospective jurors’ attitudes as to that fact or circumstance.

In prohibiting voir dire on prior murder, a fact likely to be of great significance to

prospective jurors, the trial court erred.” (Id. at p. 721, italics added.)

Decisions of this court subsequent to Cash have indicated the scope of its

holding. In People v. Vieira (2005) 35 Cal.4th 264, 284, the trial court refused to

put the case-specific information that the defendant was charged with multiple

murder into the “death qualification” questionnaire directed to exploring the

prospective jurors’ attitudes about capital punishment in general. We declined to

reverse, explaining the court “never suggested that defense counsel could not raise

the issue in voir dire. The trial court never ruled that the question was

inappropriate.” (Id. at p. 286.) As we characterized the issue in Vieira, counsel

simply neglected to follow up on the court’s invitation to supply it with

supplemental questions during oral voir dire. (See also Earp, supra, 20 Cal.4th at

p. 855 [insertion of critical information into the jury questionnaire suffices].)

In Roldan, we similarly declined to reverse, observing that the defendant

failed to explain why the existing information he had about the prospective jurors

was “insufficient to exercise his challenges intelligently . . . [or] what additional

information he had hoped to discover by having the court ask additional

questions.” (Roldan, supra, 35 Cal.4th at p. 693.) Cash, we noted, was

distinguishable because there “the defendant sought to ask prospective jurors

additional questions on a particularly relevant topic that, on the facts of that case,

could have undermined their assertions of impartiality.” (Roldan, at p. 693.) The

revelation in Cash that the defendant had previously committed two murders

“could potentially have prejudiced even a reasonable juror.” (Roldan, at p. 694.)

In Roldan, by contrast, “[t]here were . . . no prior murders, no sensational sex

crimes, no child victims, no torture.” (Ibid.; cf. Earp, supra, 20 Cal.4th at p. 853


[trial court’s questionnaire informed the jury the charges against defendant

“pertained to ‘sexual misconduct involving the death of a child’ ” and asked each

juror “whether those charges would have any effect” on the juror’s sentencing

decision]; People v. Clark (1990) 50 Cal.3d 583, 596-597 & fn. 3 [defendant was

not precluded from questioning jurors in the general voir dire about bias arising

from the victim’s serious burn injuries].)

We most recently confronted the issue in People v. Zambrano (2007) 41

Cal.4th 1082. There the defendant killed and then dismembered his victim,

removing his head and hands with an axe or a saw. (Id. at p. 1097.) The trial

court declined to permit defense counsel to voir dire the prospective jurors about

their ability to remain impartial in choosing between life and death in light of the

dismemberment evidence, ruling that inquiry about the “ ‘method of killing’

would, in effect, be asking them to prejudge the case.” (Id. at p. 1119.) We

affirmed. Summarizing the relevant legal principals, we stated: “[A]s we have

said on many occasions, ‘[d]efendant ha[s] no right to ask specific questions that

invite[] prospective jurors to prejudge the penalty issue based on a summary of the

aggravating and mitigating evidence [citation], to educate the jury as to the facts of

the case [citation], or to instruct the jury in matters of law [citation].’ [Citations.]

[¶] We have explained that ‘[t]he Witherspoon-Witt . . . voir dire seeks to

determine only the views of the prospective jurors about capital punishment in the

abstract . . . . The inquiry is directed to whether, without knowing the specifics of

the case, the juror has an “open mind” on the penalty determination.’ [Citation.]

. . . [¶] On the other hand, we have indicated that because ‘ “[a] prospective juror

who would invariably vote either for or against the death penalty because of one or

more circumstances likely to be present in the case being tried . . . is . . . subject to

challenge for cause,” ’ the death qualification process ‘must probe “prospective

jurors’ death penalty views as applied to the general facts of the case, whether or


not those facts [have] been expressly charged.” ’[3] [Citation.] [¶] Reconciling

these competing principles dictates that ‘death-qualification voir dire must avoid

two extremes. On the one hand, it must not be so abstract that it fails to identify

those jurors whose death penalty views would prevent or substantially impair the

performance of their duties as jurors in the case being tried. On the other hand, it

must not be so specific that it requires the prospective jurors to prejudge the

penalty issue based on a summary of the mitigating and aggravating evidence

likely to be presented. [Citation.] In deciding where to strike the balance in a

particular case, trial courts have considerable discretion. [Citations.]’ ” (People v.

Zambrano, supra, 41 Cal.4th at pp. 1120-1121.)

We concluded the trial court in Zambrano did not abuse its discretion.

“The sole fact as to which the defense unsuccessfully sought additional inquiry —

the condition of the adult murder victim’s body when found — was not one that

could cause a reasonable juror — i.e., one whose death penalty attitudes otherwise

qualified him or her to sit on a capital jury — invariably to vote for death,

regardless of the strength of the mitigating evidence. No child victim, prior

murder, or sexual implications were involved. Nor, to the extent juror emotions

might thereby be aroused, would there be evidence that [the victim] was

dismembered while alive.” (People v. Zambrano, supra, 41 Cal.4th at p. 1122,

italics omitted; but see id. at p. 1201 (conc. & dis. opn. of Kennard, J.) [“the

murder victim’s dismemberment by defendant was ‘a general fact or


That in appropriate cases the jury must be informed of relevant facts of the

case beyond those charged in the information is well established. (Earp, supra, 20
Cal.4th at p. 853; People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005; see also Cash,
supra, 28 Cal.4th at p. 719 [prior murder not alleged in the charging documents].)


circumstance’ likely to elicit a strong emotional response from the jurors” and

“may be of great significance to a prospective juror”].)

In sum, in order to ensure the state fulfills its constitutional mandate to

provide a capital defendant with a fair and impartial jury, questioning on voir dire

should include mention of case-specific facts and circumstances if they are such as

could convert an otherwise fair and reasonable juror into one who would

invariably vote for the death penalty regardless of the mitigating circumstances.


The majority avoids addressing the difficult issue of whether the trial court

erred by refusing to question prospective jurors with particular facts of the case by

concluding defendant procedurally forfeited the issue. The record shows

otherwise. To preserve this issue for appellate review, a criminal defendant need

only have objected to the questionnaire “or to the manner or completeness of the

[trial] court’s questioning on this issue.” (Roldan, supra, 35 Cal.4th at p. 694.)

By doing so, a defendant alerts the trial court to a possible error and provides the

opportunity for correction. (People v. Saunders (1993) 5 Cal.4th 580, 590

[addressing Pen. Code, § 1025].) This defendant clearly did.

From the beginning, defense counsel for both defendant and codefendant

Donna Lee were unhappy with the completeness of the trial court’s voir dire

questioning. Both in various terms urged the trial court to inform prospective

jurors the case involved willful, premeditated murder with special circumstances,

and two murders, not just one, as well as other particulars. At one point, counsel

for codefendant Lee argued this court’s precedents authorized a more factually

detailed voir dire inquiry to determine “whether the potential juror has a fair and

open mind . . . under the circumstances of the case.” (Italics added.) The trial

court disagreed, responding the voir dire process is intended to determine whether

a juror will vote for the death penalty in “any case,” not just this particular case.


The court later clarified it intended to determine whether any of the prospective

jurors would automatically vote for death if one or more of the special

circumstances were proven true.

Later in the voir dire, counsel for codefendant raised the point again,

stating: “The point that I was trying to make is that when we started doing the

four-question initial screening, the court indicated at that time when I objected that

it would be more case specific about people who would automatically give death

in a case involving two who are —” (Italics added.) The court cut counsel off,

saying: “No, no, I didn’t, sir. If I [said that], I misspoke myself. The case law is

quite clear that you do not get to this specific case.” (Italics added.) That the trial

court understood counsel’s objection embraced a claim that jurors should be

informed during voir dire that the two victims were related to the accused is clear.

But if any question remained, it was soon dispelled. When considering the

responses of Prospective Juror A.L., codefendant’s counsel stated: “Your Honor,

. . . throughout this trial, with probably ten jurors who have expressed very strong

support for the death penalty, we have repeatedly asked to talk about case specific

kind[s] of considerations and you have steadfastly refused to do so.”

Codefendant’s counsel continued: “We don’t even know whether [Prospective

Juror A.L.] could consider a death penalty under the circumstances of this case as

alleged by the prosecution, that two brutal murders, familial, for financial gain.”

(Italics added.) Counsel for defendant expressly joined codefendant’s objection.

The trial court responded: “I have found no case that says, yes, you should

ask a juror can you impose a death sentence where it’s two murders for cause —

for financial gain with ambush where the defendant is the son of one of the victims,

where he’s the ex-boyfriend of the other one, et cetera. So there you and I part

company.” (Italics added.) Later, justifying its denial, the court stated: “But the

law doesn’t say that if your view is that somebody who kills their mother for


financial gain and under ambush, and your feelings are under those

circumstances, the death penalty is appropriate, that you are challengeable for

cause.” (Italics added.) Clearly, the trial court understood that both defense

counsel were seeking to have the prospective jurors informed of, and questioned

about, the fact defendant allegedly killed his mother and the mother of his son in

an ambush.

Contrary to the majority’s conclusion, therefore, defendant adequately

apprised the trial court of both the existence and the nature of his objection to the

“manner or completeness of the [trial] court’s questioning on this issue” (Roldan,

supra, 35 Cal.4th at p. 694), permitting the trial court to correct the error. But

even accepting the majority’s reasoning that defense counsel’s failure to mention

the word “matricide” in his written motion or his complaints following the court’s

initial denial of his objection could theoretically constitute a forfeiture (maj. opn.,

ante, pp. 26-27, fn. 14), any failure to object with more specificity was excusable

in the circumstances. The requirement of a timely objection “is only the general

rule. A defendant will be excused from the necessity of either a timely objection

and/or a request for admonition if either would be futile.” (People v. Hill (1998)

17 Cal.4th 800, 820 [referring to prosecutorial misconduct].) Here, given that the

trial court repeatedly and pointedly refused to mention even the lying-in-wait,

financial-gain and multiple-murder special circumstances when questioning

individual prospective jurors, defense counsel may reasonably have believed that

requesting the court to also mention the matricidal and intrafamilial aspects of the

case would have been futile. Such futility excuses any failure on counsel’s part to

register a more specific objection.4


Moreover, by relying on the forfeiture doctrine, the majority overlooks that

although a party may forfeit the right to raise a claim of error on appeal by failing

(footnote continued on next page)


Having found the issue properly preserved for this court’s review, I turn to

the merits.


The trial court refused to ask prospective jurors whether they could remain

impartial in a case in which a defendant lured his own mother, as well as the

mother of his child, to their deaths in a premeditated Mother’s Day ambush. That

decision was contrary to our precedents. (People v. Zambrano, supra, 41 Cal.4th

at pp. 1120-1121; Roldan, supra, 35 Cal.4th at p. 694; People v. Vieira, supra, 35

Cal.4th at pp. 284-286; Cash, supra, 28 Cal.4th at p. 723; Earp, supra, 20 Cal.4th

at p. 853; People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005.) As we explained in

Cash, the real question to be answered during voir dire is “whether the juror’s

views about capital punishment would prevent or impair the juror’s ability to

return a verdict of life without parole in the case before the juror.” (Cash, at

p. 720, italics added.) If an otherwise fair prospective juror — that is, someone

with the professed ability to follow the law and vote for either the death penalty or

life imprisonment depending on the circumstances — would be so affected upon

learning certain facts that the juror could no longer vote for life imprisonment

(footnote continued from previous page)

to object, that circumstance “does not compel the conclusion that, by operation of
his default, the appellate court is deprived of authority [to address the issue]. An
appellate court is generally not prohibited from reaching a question that has not
been preserved for review by a party
.” (People v. Williams (1998) 17 Cal.4th 148,
161-162, fn. 6, italics added.) As I conclude defendant adequately raised the issue
below and that any failure to do so was in any event excused, however, I express
no opinion whether it would be appropriate to reach the issue in the complete
absence of an objection.


regardless of the strength of the mitigating evidence, then that prospective juror

should be excluded.

Not every fact is of a type that would be likely to undermine a juror’s

ability to remain impartial. Our opinions give some content to the question. For

example, this court has found that many prospective jurors might no longer be able

to consider a life term an adequate or proportionate punishment for a murderer

who has previously taken someone’s life (Cash, supra, 28 Cal.4th at p. 721), who

killed more than one person in the present crime (People v. Vieira, supra, 35

Cal.4th at p. 286), or who committed sexual acts on a child (Earp, supra, 20

Cal.4th at p. 855). Similarly, we have suggested that “sensational sex crimes,”

crimes against children or those involving torture might also be the sort of facts

that should be revealed to prospective jurors on voir dire. (Roldan, supra, 35

Cal.4th at p. 694.) By contrast, dismemberment of the victim, at least in the

absence of evidence the victim was alive when it occurred, does not qualify.

(People v. Zambrano, supra, 41 Cal.4th at pp. 1118-1123; but see id. at p. 1201

(conc. & dis. opn. of Kennard, J.).)

Taken together, these cases paint a coherent picture, delineating the types of

extreme situations in which an otherwise impartial and reasonable juror might find

he or she is no longer able to consider a life sentence for a particular offender. In

such cases, inquiry using the critical facts or circumstances of the case — either

directly from the trial court or the attorneys (People v. Vieira, supra, 35 Cal.4th at

p. 286) or in the jury questionnaire (Earp, supra, 20 Cal.4th at p. 855) — is

necessary to ensure that the regular and alternate jurors ultimately selected will be

impartial and able to faithfully follow the law.5


The principle applies to both sides: The prosecutor is entitled to question

prospective jurors on a variety of topics during voir dire to ensure those ultimately

(footnote continued on next page)


In the instant case, defendant was accused of luring his own mother, Doris

Carasi, as well as the mother of his child, Sonia Salinas — on Mother’s Day — to

an isolated part of a shopping mall parking lot, at which time in the presence of his

infant son he completed his premeditated plan to brutally stab them to death with

the assistance of his new girlfriend, Donna Lee. He was thus charged with

committing “the most horrible crime of matricide.” (People v. Weber (1906) 149

Cal. 325, 349.) Although our society’s constant exposure to media reports of

violence may cause some to become jaded, rare is the day one learns an accused

has killed his own mother. Matricide provokes strong, visceral emotions, a fact

used many times in ancient and classic stories,6 books and movies7 to heighten

dramatic tension and instill a sense of revulsion in the reader or viewer. That

(footnote continued from previous page)

chosen are impartial and can faithfully follow the law. “A prosecutor may
properly inquire whether a prospective juror could impose the death penalty on a
defendant in a felony-murder case (People v. Pinholster (1992) 1 Cal.4th 865,
916-917), on a defendant who did not personally kill the victim (People v. Ochoa
[(2001)] 26 Cal.4th [398,] 431 . . .), on a young defendant or one who lacked a
prior murder conviction (People v. Livaditis[, supra,] 2 Cal.4th [at pp.] 772-773),
or only in particularly extreme cases unlike the case being tried (People v.
[(1997)] 15 Cal.4th [1229,] 1320).” (Cash, supra, 28 Cal.4th at p. 721.)


In ancient Greek mythology, Orestes and Electra murder their mother,

Clytemnestra, as revenge for her part in the death of their father, Agamemnon.
Roman Emperor Nero is infamous for ordering the death of his mother, Agrippina
the Younger, in 59 A.D. Shakespeare refers to this latter fact in Hamlet, act III,
scene 2, where the Prince of Denmark, angry with his mother, goes to her but
cautions himself to speak harsh words to her only and not to commit physical
violence against her (“I will speak daggers to her, but use none”), saying, “let not
ever the soul of Nero enter this firm bosom,” noting that the crime of matricide is


E.g., Savage Grace (IFC Films 2007), Heavenly Creatures (Miramax Films

1994), Carrie (United Artists 1976), Psycho (Paramount 1960).


defendant could murder the one who brought him into the world could well have

convinced an otherwise fair and reasonable prospective juror that the perpetrator

of such an abominable act would not respond to the rehabilitative power of the

state and would be impervious to the redemptive power of any religious or

spiritual intervention; that he was, in short, beyond hope.

That defendant killed not just his own mother but Sonia Salinas, the mother

of his child, further aggravates the situation. That he and Salinas together brought

another life into the world, and that by his hand defendant deprived his son of not

only his grandmother but his own mother as well, could very likely have

confirmed for a reasonable prospective juror that a life sentence for defendant

could never be justified.

The trial court thus erred by refusing to question the prospective jurors

concerning these facts. As was the case in Cash, “[b]ecause the trial court’s error

makes it impossible for us to determine from the record whether any of the

individuals who were ultimately seated as jurors held the disqualifying view that

the death penalty should be imposed invariably and automatically on any

defendant who had [killed his mother and the mother of his child], it cannot be

dismissed as harmless.” (Cash, supra, 28 Cal.4th at p. 723.) As in Cash,

defendant’s judgment of death should be reversed.


This court has issued no shortage of decisions involving the procedures

applicable to the questioning and excusing of prospective jurors in capital cases.

Although all would agree with the general rule that those accused of capital crimes

are entitled to a fair and impartial jury, the devil is often in the details of how that

jury is ultimately chosen — which prospective jurors are retained and which are

properly excused. As we map the outer boundaries of the constitutional

requirements applicable to jury selection, our best efforts to ensure fairness


sometimes fall short of the mark.8 In this case, awareness of the unusual and

disturbing facts of the case reasonably could have convinced an otherwise fair and

impartial juror that he or she would be unable to vote for a life sentence regardless

of the strength of the mitigating evidence. Accordingly, the trial court erred by

refusing to conduct the case-specific inquiry defendant sought. Because the

majority holds otherwise, I dissent from the affirmance of the penalty judgment.





See, e.g., People v. Johnson (2003) 30 Cal.4th 1302, 1306 (Johnson I)

(moving party had burden to “show that it is more likely than not the other party’s
peremptory challenges, if unexplained, were based on impermissible group bias”),
overruled in Johnson v. California (2005) 545 U.S. 162; Johnson I, at pp. 1324-
1325 (appellate courts need not undertake a comparative juror analysis for the first
time on appeal in a third-stage Batson case), overruled in Snyder v. Louisiana
(2008) ___ U.S. ___ [128 S.Ct. 1203], as explained in People v. Lenix (2008) 44
Cal.4th 602, 611-612, 630; People v. Johnson (2006) 38 Cal.4th 1096 (remand a
permissible remedy for Batson error), called into question in Snyder v. Louisiana,
128 S.Ct. at p. 1212 (refusing to order remand because there was no “realistic
possibility” the “subtle question of causation could be profitably explored further
on remand at this late date, more than a decade after petitioner’s trial”).


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

Name of Opinion People v. Carasi

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: August25 , 2008

County: Los Angeles
Judge: Leslie W. Light


Attorneys for Appellant:

Eric S. Multhaup, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and
Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Eric S. Multhaup
20 Sunnyside Avenue, Suite A
Mill Valley, CA 94941
(415) 821-6000

Ana R. Duarte
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2648

Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 08/25/200844 Cal. 4th 1263, 190 P.3d 616, 82 Cal. Rptr. 3d 265S070839Automatic Appealclosed; remittitur issued

CARASI (PAUL) ON H.C. (S129603)

1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Ana R. Duarte, Deputy Attorney General
300 S. Spring Street, Suite 500
Los Angeles, CA

2Carasi, Paul Joe (Appellant)
San Quentin State Prison
Represented by Eric Stephen Multhaup
Attorney At Law
20 Sunnyside Avenue, Suite A
Mill Valley, CA

Aug 25 2008Opinion: Affirmed

May 26 1998Judgment of death
Jun 4 1998Filed certified copy of Judgment of Death Rendered
Jun 4 1998Penal Code sections 190.6 et seq. apply to this case
Aug 20 1999Record certified for completeness
Jun 7 2002Filed:
  applt's application for appointment of counsel. (IFP form)
Jun 12 2002Date trial court delivered record to appellant's counsel
  18,365 pp. record
Jun 12 2002Counsel appointment order filed
  appointing Eric S. Multhaup to represent applt for the direct appeal.
Jun 27 2002Appellant's opening brief letter sent, due:
Aug 20 2002Counsel's status report received (confidential)
  from atty Multhaup.
Sep 11 2002Received copy of appellant's record correction motion
  (16 pp.)
Sep 19 2002Compensation awarded counsel
  Atty Multhaup
Oct 18 2002Counsel's status report received (confidential)
  from attorney Multhaup.
Nov 21 2002Filed:
  Request by inmate for dual representation.
Nov 21 2002Filed:
  Request by counsel for dual representation appointment.
Nov 26 2002Compensation awarded counsel
  Atty Multhaup
Dec 5 2002Record certified for accuracy
Dec 18 2002Order filed
  Attorney Eric S. Multhaup, previously appointed to represent appellant Paul Joe Carasi for the direct appeal in the above automatic appeal now pending in this court, is hereby appointed to also represent appellant Paul Joe Carasi for habeas corpus/executive clemency proceedings related to the above automatic appeal.
Dec 18 2002Compensation awarded counsel
  Atty Multhaup
Dec 24 2002Counsel's status report received (confidential)
Jan 15 2003Compensation awarded counsel
  Atty Multhaup
Feb 13 2003Motion for access to sealed record filed
  Motion for order directing that sealed transcripts be provided to counsel for appellant.
Feb 18 2003Filed:
  Supplemental declaration of service of motion for order directing that sealed transcripts be provided to counsel for appellant.
Feb 18 2003Counsel's status report received (confidential)
  from atty Multhaup.
Feb 24 2003Record on appeal filed
  Clerk's transcript 23 volumes (5979 pp.) and reporter's transcript 99 volumes (12211 pp.) including material under seal. ASCII disks. Copy of People's exhibit #185 (audio cassette). Clerk's transcript includes 3095 pp. of juror questionnaires.
Feb 24 2003Filed:
  Response to Appellant's Motion for Order Directing That Sealed Transcripts Be Provided To Counsel For Appellant.
Mar 5 2003Compensation awarded counsel
  Atty Multhaup
Mar 27 2003Filed:
  Reporter's transcript, dated 12/5/2002. (1 volume - 3 pp.)
Apr 17 2003Counsel's status report received (confidential)
  from atty Multhaup.
May 7 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
May 8 2003Extension of time granted
  to 7/14/2003 to file appellant's opening brief.
May 14 2003Letter sent to:
  counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of appellant's "Motion for Order Directing That Sealed Transcripts Be Provided to Counsel for Appellant," filed on February 13, 2003. (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, if they wish, on or before May 30, 2003, addressing whether any of the documents in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overridding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d).
May 28 2003Filed letter from:
  Respondent, dated 5/28/2003, in response to court's letter of 5/14/2003.
May 30 2003Filed letter from:
  Appellant, dated 5/29/2003, in response to the court's letter of 5/14/2003.
Jun 9 2003Compensation awarded counsel
  Atty Multhaup
Jun 11 2003Compensation awarded counsel
  Atty Multhaup
Jun 11 2003Compensation awarded counsel
  Atty Multhaup
Jun 25 2003Motion for access to sealed record granted
  Appellant's "Motion for Order Directing that Sealed Transcripts Be Provided to Counsel for Appellant" (Motion), filed on February 13, 2003, is granted in part and denied in part. In the following respects, the Motion is granted. The clerk is directed to provide appellant and respondent with a copy of the reporter's transcript herein at pages 1014-1017 (volume 3B, November 10, 1997), pages 1319-1335 (volume 5A, November 13, 1997), pages 1678-1685 (volume 8A, November 19, 1997), pages 2105-2116 (volume 12A, December 2, 1997), pages 2267-2275 (volume 12B, December 2, 1997), pages 5037-5041 (volume 29A, January 12, 1998), pages 9850-9856 (volume 57A, March 2, 1998), and with a copy of the clerk's transcript herein at pages 899-912 (volume IV). In all other respects, including as to the reporter's transcript herein at pages 755-756 (volume 2A, August 5, 1997), pages 11898-11934 (volume 73A, March 30, 1998), and pages 12283-12287 (volume 75A, April 1, 1998), the Motion is denied. On the court's own motion, the parties having received notice and an opportunity to be heard, the clerk is directed to unseal the reporter's transcript at pages 1678-1685 (volume 8A, November 19, 1997), pages 2105-2116 (volume 12A, December 2, 1997), and pages 2267-2275 (volume 12B, December 2, 1997). It is ordered that only counsel for appellant and counsel for respondent, and their respective investigators, may use the copy of the reporter's transcript at pages 1014-1017 (volume 3B, November 10, 1997), pages 1319-1335 (volume 5A, November 13, 1997), pages 5037-5041 (volume 29A, January 12, 1998), pages 9850-9856 (volume 57A, March 2, 1998), and the copy of the clerk's transcript at pages 899-912 (volume IV). Use of such materials is limited to this appeal and to any petition for writ of habeas corpus challenging the lawfulness of confinement pursuant to the underlying judgment of death. To the extent the parties quote or describe such materials in court papers, those papers must themselves be filed or lodged under seal. On the court's own motion, the parties having received notice and an opportunity to be heard, the clerk is further directed to reseal the materials described in the preceding paragraph of this order.
Jul 8 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Jul 10 2003Extension of time granted
  to 9-12-2003 to file AOB.
Jul 18 2003Received letter from:
  attorney Multhaup, dated 7-16-2003, requesting clarification of the court's order of 6-25-2003.
Aug 21 2003Counsel's status report received (confidential)
Sep 5 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Sep 9 2003Extension of time granted
  to 10/14/2003 to file appellant's opening brief.
Oct 14 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Oct 17 2003Extension of time granted
  to 10/24/2003 to file appellant's opening brief.
Nov 3 2003Application for relief from default filed
  by appellant to file opening brief. (238 pp. brief submitted under separate cover on 10/31/2003)
Nov 4 2003Counsel's status report received (confidential)
Nov 6 2003Order filed
  Appellant's application for permission to late file appellant's opening brief is granted.
Nov 6 2003Appellant's opening brief filed
  (238 pp.)
Nov 7 2003Respondent's brief letter sent; due:
  July 6, 2004. (Calif. Rules of Court, rule 39.57(c))
Nov 7 2003Filed:
  Declaration by attorney Eric Multhaup (confidential).
Nov 19 2003Compensation awarded counsel
  Atty Multhaup
Dec 4 2003Filed letter from:
  respondent, dated 12/4/2003, requesting copy of appellants's sealed supplement.
Feb 6 2004Counsel's status report received (confidential)
Mar 30 2004Respondent's brief filed
  (73,025 words - 249 pp.)
Apr 5 2004Counsel's status report received (confidential)
Jun 1 2004Filed:
  Declaration of attorney Eric S. Multhaup submitted in conjuction with fixed fee progress payment (confidential).
Jun 1 2004Counsel's status report received (confidential)
Jun 1 2004Appellant's reply brief filed
  (17,608 words - 80 pp.)
Jun 7 2004Compensation awarded counsel
  Atty Multhaup
Jun 9 2004Compensation awarded counsel
  Atty Multhaup
Oct 28 2004Counsel's status report received (confidential)
Dec 1 2004Related habeas corpus petition filed (concurrent)
  No. S129603.
Jan 24 2005Compensation awarded counsel
  Atty Multhaup
Aug 12 2005Habeas funds request filed (confidential)
Sep 21 2005Order filed re habeas funds request (confidential)
  George, C.J., was absent and did not participate.
Jan 23 2007Exhibit(s) lodged
  from Los Angeles County Superior Court
Jan 24 2007Note:
  exhibits lodged in our L.A. office received this date in San Francisco: People's trial exhibits, nos. 20, 21, 26, 27, 50, 51, 52, 56, 60, 61, 62, 63, 65, 66, 67A, 67B, 143, 207 and 211.
Mar 14 2007Filed:
  corrected master index to reporter's transcript.
Jun 15 2007Exhibit(s) lodged
  co-defendant Lee's exhibits, A and B.
Aug 14 2007Letter sent to:
  counsel informing them that the court is considering whether to unseal, on its own motion, pages 899-912 of the volume IV of the Confidential Clerk's Transcript in this case (codefendant Donna Lee's motion to sever). Counsel invited to serve and file a response, if they wish, on or before August 27, 2007, addressing whether the document in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 8.160(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 2.550(d).)
Aug 21 2007Filed:
  letter from attorney John Steinberg, dated August 16, 2007, in response to the court's letter of August 14, 2007.
Aug 21 2007Filed:
  letter from appellant, dated August 17, 2007, in response to the court's letter of August 14, 2007.
Nov 16 2007Exhibit(s) lodged
  People's exhibits, nos. 186A, 186B, 257; and Court's exhibit no. 6.
Mar 13 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 13 2008Received:
  letter from Deputy Attorney General Ana Duarte, dated March 13, 2008, regarding the scheduling of oral argument.
Apr 30 2008Case ordered on calendar
  to be argued on Wednesday, June 4, 2008, at 9:00 a.m., in Los Angeles
May 6 2008Filed:
  respondent's focus issue letter, dated May 5, 2008.
May 6 2008Received:
  appearance sheet from Deputy Attorney General Ana R. Duarte, indicating 30 minutes for oral argument for respondent.
May 13 2008Received:
  appearance sheet from attorney Eric Multhaup, indicating 30 minutes for oral argument for appellant.
May 21 2008Filed:
  appellant's focus issue letter, dated May 21, 2008.
May 23 2008Supplemental brief filed
  by appellant. (1,610 words; 11 pp.)
May 28 2008Order filed
  Any response to appellant's supplemental brief filed on May 23, 2008, must be served and filed on or before May 30, 2008. Any reply must be served and filed on or before June 3, 2008.
May 30 2008Supplemental brief filed
  Respondent's response to appellant's supplemental brief. (2,795 words; 10 pp. )
Jun 3 2008Supplemental reply brief filed (AA)
  by appellant. (6 pp.)
Jun 4 2008Cause argued and submitted
Jun 5 2008Compensation awarded counsel
  Atty Multhaup
Aug 22 2008Notice of forthcoming opinion posted
Aug 25 2008Opinion filed: Judgment affirmed in full
  opinion by Baxter, J. -----joined by George, C.J., Chin, Moreno, and Corrigan, JJ. Concurring and Dissenting Opinion by Kennard, J Concurring and Dissenting Opinion by Werdegar, J -----joined by Kennard, J.
Sep 8 2008Rehearing petition filed
  by appellant. (1398 words; 8 pp.)
Sep 16 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 21, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 16 2008Rehearing denied
  The petition for rehearing is denied.
Oct 16 2008Remittitur issued (AA)
Oct 17 2008Exhibit(s) returned
  to superior court.
Oct 23 2008Received:
  acknowledgment of receipt of remittitur.
Oct 27 2008Received:
  acknowledgment for receipt of exhibits.
Jan 20 2009Change of contact information filed for:
  attorney Eric S. Multhaup.
Jan 29 2009Received:
  Letter from U.S.S.C., dated January 23, 2008, advising appellant's petition for writ of certiorari was filed on January 14, 2009, No. 08-8249.
Apr 27 2009Certiorari denied by U.S. Supreme Court

Nov 6 2003Appellant's opening brief filed
Mar 30 2004Respondent's brief filed
Jun 1 2004Appellant's reply brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website