Supreme Court of California Justia
Docket No. S105097
People v. Duff

Filed 1/30/14



Plaintiff and Respondent,




Sacramento County

Defendant and Appellant.

Super. Ct. No. 98F01583

A jury convicted defendant Dewey Joe Duff of two counts of first degree

murder with robbery and multiple-murder special circumstances, as well as

various lesser crimes, for the 1998 killings of Roscoe Riley and Brandon Hagan.

(Pen. Code, §§ 187, 189, 190.2, subd. (a)(3), (17).)1 It thereafter returned a death

verdict. On automatic appeal, we affirm the judgment in its entirety.



It is undisputed that on February 23, 1998, Duff shot and killed Riley and

Hagan. The principal issue during the guilt phase was why: Whether, as the

People argued, Duff acted with premeditation to settle a grudge against Riley, or

whether, as Duff argued, he acted in self-defense after Riley and Hagan pointed

three guns at him and opened fire.


All further unlabeled statutory references are to the Penal Code.


1. Prosecution Evidence

On the afternoon of February 23, 1998, bartender Diana Flint and customer

Filomeno Lujan witnessed shootings in the parking lot outside Taylor’s Corner

Bar in Sacramento. Flint saw a man enter the bar, use the restroom, and leave.

Minutes later, Flint heard a gunshot and through a window saw the man standing

next to the rear passenger side of a car in the parking lot, shooting into the car.

The car’s doors were closed. The man then walked around the car, pushed

something out of the driver’s seat, and drove off. Hearing shots, Lujan ran first to

a window and then outside and saw two people, later determined to be Roscoe

Riley and Brandon Hagan, slumped over in the front seats; he saw a third man

with a gun take another gun from the motionless driver, climb into the driver’s

seat, and drive off. Moments later, as the car was driving away, Flint and Lujan

both heard a further shot. Flint called 911.

That night, police seeking a suspect on an unrelated warrant spotted Duff

fleeing on foot near where he lived. Thinking he might be the suspect they were

seeking, officers pursued him and eventually, after a brief struggle, arrested him.

An officer recognized Duff and, knowing that he had until recently lived across

the street with his mother, obtained consent from Duff’s mother to search her

house. When .22-caliber bullets were found, Duff was held on charges of being a

felon in position of ammunition. When arrested, Duff had in his possession two of

Riley’s rings. A search of the area where Duff was arrested produced a .357-

caliber revolver with blood in its chambers and a matching gun holster.2

Police received a tip concerning a car with bodies in it parked in a muddy

field behind the house of Sheri Sanchez and Walter Payne, friends with whom


Duff later confirmed the .357 was a gun he had taken from Riley.


Duff sometimes lived. Police found the car with Riley’s and Hagan’s bodies

inside and had the car towed to a crime laboratory for inspection.

After discovering Riley’s and Hagan’s bodies, police questioned Duff about

the shootings. In a taped interview played for the jury, he confessed to killing

both men. He explained that he had set up a deal with Riley to trade guns for

drugs; they were on their way from Sacramento to Rio Linda to secure the drugs

when Duff asked for a restroom stop. Duff had met Hagan, who was

accompanying Riley, only once before. When Duff returned to the car, Riley

pointed one gun and Hagan two guns at him, and they demanded his guns and

money. Duff said he did not want trouble and was getting out of the car, someone

fired a shot, and as Duff was getting out he returned fire with a .38. He then ran to

the driver’s side, pushed Riley aside, and drove off. One of the men was still

alive, so Duff shot him again as he was driving away. Duff took jewelry, a .357,

and other guns from the men.

Forensic examination of the bodies and car revealed that Riley had been

shot four times and Hagan twice. Each had been shot with both a .357 and a .38.

All bullets recovered were .38-caliber but could be fired from either a .38 or a

.357. There were no bullet holes in the back of the car or any other evidence that

would suggest a gun had been fired from the front seat toward the rear. Riley was

wearing an elastic strap that could have been part of a gun holster. Hagan had dice

in his lap, as if the men had been playing a game when they were shot. Expert

reconstruction of the scene suggested both Riley and Hagan had been shot from

behind with the .38 and from the side with the .357.

Duff’s friend Cynthia Fernando, who was staying with Duff at the

Sanchez/Payne house, testified that Duff had sold Riley a .357 for $100 or its

equivalent in methamphetamine and was very angry because Riley never paid him

and had ignored and “disrespected” him. In the month or two preceding the


shootings, Duff repeatedly discussed setting up Riley by agreeing to meet him to

do a drug deal but then robbing him of drugs and jewelry and killing him. In the

days before the murders, Fernando saw Duff with multiple guns, including a .38,

and saw him taking shooting practice.3

One day when Duff was at another friend’s house, he spoke to Fernando on

the phone and asked her to come over. When she arrived, Duff had showered and

was trying on clean clothes; his clothes were folded in a box he intended to bury.

She saw him wipe blood off a .357. Duff said he had killed two people, including

one who was not supposed to be there. He never mentioned that either man had

pulled a gun or that he had acted in self-defense. The bodies were in a car in back

of the Sanchez/Payne house.

Fernando and Duff soon met up with his friend Ronald Greathouse, and

Duff gave Greathouse a few items. Duff gave Fernando the methamphetamine he

had taken from the victims. She also saw other items from the car, including

jewelry, a cell phone, and numerous guns, including Duff’s .38 and the .357 Duff

had sold Riley. Duff kept the .357 and Fernando took the jewelry and other guns,

including the .38, with directions that the .38 go to Duff’s half brother. That night,

as they were walking toward Duff’s mother’s house with the guns and with items

from the robbery in a shopping cart, Duff spotted police officers and took off

without a word. The next day, Fernando gave the .38 and another gun to Duff’s

half brother.

Ronald Greathouse testified that, in the weeks before the murders, Duff had

asked for help robbing a man named Roscoe and Roscoe’s friend and shooting one

of them in the buttocks. Duff was going to set up a deal for drugs and jewelry and


Another witness also saw a man matching Duff’s description taking target

practice in the backyard of the Sanchez/Payne house the day before the shootings.


then rob Roscoe because he was “lame and easy to do.” Duff had a .38-caliber

gun with him. Weeks after that first conversation, Duff gave Greathouse a ring

and five spent .357- or .38-caliber shell casings and had Greathouse sell the ring,

splitting the profits, and dispose of the shells so no one would find them.

Lloyd Dunham, a friend of Duff’s half brother, testified that Duff was

angry with Riley because Duff had set up a guns-for-drugs deal for Riley but had

not received anything. Duff had asked Dunham for help in setting up a fake drug

buy from Riley with the intent of then robbing Riley of his drugs, money, and


Duff’s nephew, Lloyd Duff, told police that the week before the murders

Duff said he planned to set someone up, rob them, and “leave no witnesses.”

2. Defense Evidence

Duff did not testify, relying on his taped confession to convey his version

of events. The defense called only one witness, Detective Toni Winfield, to

impeach Fernando with statements she had made to Detective Winfield before

trial, including that Duff had led her to believe the second victim was a woman

and that she had not seen him wipe blood off the .357.


1. Prosecution Evidence

In addition to the circumstances of the crime, the People relied principally

on Duff’s history of prior violent criminal acts, including eight felony convictions

and other malfeasance not leading to a conviction. (§ 190.3, factors (b), (c).) In

the 20 years preceding the murders, Duff had been convicted of false

imprisonment, assault of a police officer, assault with a semi-automatic rifle,

possessing methamphetamine (twice), theft, vehicle theft, and possessing a dagger.


The false imprisonment victim testified that when she was 16, Duff grabbed

her from behind and dragged her toward an alley. She struggled and screamed;

when someone heard the screams, Duff released her and she fled.

A woman testified to an uncharged incident in which Duff exposed himself

and masturbated toward her while she was sitting in the passenger seat of a car at a

drive-in restaurant, grabbed the breasts of two other women walking by, then stuck

his erect penis through the driver’s side window at the witness’s female


The officer who had been assaulted testified that Duff slipped a handcuff

and hit him. In the ensuing struggle, the officer tore ligaments in his hand and hit

his head on a telephone pole.

Another woman testified that Duff, shirtless, entered her home with a

loaded sawed-off rifle. She, her husband, and six children escaped the house and

called police, who caught Duff. Earlier that same night, Duff had approached

three teenagers, cocked the rifle, and pointed it at them.

In a partially uncharged incident, a woman testified that late one night,

while she was at a closed gas station going through mail she had stolen, Duff

approached her and struck up a conversation. When she started to leave, he hit her

in the head from behind. When she tried to run, he grabbed her by the hair, held a

knife to her throat, forced her to orally copulate him, and then raped her. When

police responded to a call regarding the rape, Duff drove off but crashed; he was

found in possession of a bayonet-style dagger. The woman admitted that she had

originally lied about some aspects of the incident, including by claiming that Duff

had forced her to take methamphetamine and that she was returning from bingo,

not out stealing mail. Pursuant to a plea bargain, rape charges were dropped, but

Duff pleaded guilty to possession of a dagger.


In another incident, Duff shot at his friend Ronald Greathouse, grazing his

head. The night before the murders, he beat Cynthia Fernando extensively,

knocking her to the ground at least four times, kicking her, picking her up to beat

her again, and breaking her ribs.

The prosecution concluded with brief victim impact evidence from Marie

Correa, the mother of two daughters by Riley, and Makala Tiller, a friend of


2. Defense Evidence

Duff introduced evidence that he had been raised in a dysfunctional home.

Duff’s mother had given birth to six living children and had had six or seven

additional miscarriages or stillbirths. She was married at least four and possibly as

many as eight times, though never to Duff’s father, whose identity was unknown.

Duff fell on his head when he was three and was “slower” thereafter. Duff’s

mother was an alcoholic, and there was domestic violence in the home, some of it

directed toward Duff, from both his mother and stepfathers. Duff’s mother used

her children to help her lure men to her home and then rob them. Duff’s mother

and family members were involved in distributing drugs.

Duff was married for 10 years and had three daughters.

Defense experts testified that Duff had low intelligence (an overall I.Q. of

87 and individual I.Q.’s in various areas of between 62 and 99), a learning

disability, and mild brain damage that caused learning and attention difficulties.


Duff was charged with two counts of first degree murder with two special

circumstances for each count, murder during the commission of robbery and

multiple murder. (§§ 187, 189, 190.2, subd. (a)(3), (17).) He was also charged

with robbery (§ 211), possession by a felon of a handgun and reloadable


ammunition (former § 12021, subd. (a) [now § 29800]; former § 12316,

subd. (b)(1) [now § 30305, subd. (a)]), firearm-use enhancements (§ 12022.53),

and a prior serious felony conviction qualifying as a strike (§§ 245, subd. (b), 667,

subds. (a)-(i), 667.5, subd. (b), 1170.12). Before trial, the court dismissed the

reloadable ammunition count on the prosecution’s motion.

A jury convicted Duff on both first degree murder counts and found the

special circumstances true. It also convicted Duff of all remaining lesser offenses

and found the firearm-use enhancements true. Duff admitted the strike. At the

penalty phase, the jury returned a verdict of death.



1. Excusals Pursuant to Stipulation

In the course of voir dire, the trial court permitted counsel for both sides to

prescreen juror questionnaires and arrive at stipulations as to particular jurors they

mutually agreed were unsuitable. Under this procedure, Duff and the prosecution

stipulated to the exclusion of numerous prospective jurors, including jury pool

members C.L., S.K., and D.L., and the trial court accepted these stipulations. Duff

now contends the trial court committed error by excusing these three jurors under

Witherspoon v. Illinois (1968) 391 U.S. 510 (Witherspoon) and Wainwright v. Witt

(1985) 469 U.S. 412 (Witt)4 without adequate voir dire into their views on the

death penalty.


Under Witherspoon, supra, 391 U.S. 510 and Witt, supra, 469 U.S. 412,

prospective jurors may be excused for cause based on their views on the death
penalty if the jurors’ attitudes will prevent or substantially impair the performance
of their duties as jurors in accordance with their instructions and oath. (People v.
(2008) 44 Cal.4th 758, 786.)


This contention is misguided. The trial court did not dismiss these

prospective jurors on Witherspoon-Witt grounds; it did not dismiss them on any

particular ground or make findings as to the basis for their dismissal, but instead

accepted the parties’ stipulation that the jurors be dismissed. Nothing in the record

suggests these jurors’ views of the death penalty played any role in their dismissal.

Indeed, the court anticipated there would be stipulations wholly unrelated to

Witherspoon-Witt concerns; while explaining that the plan for voir dire was to

focus questioning on the death penalty, the court noted: “I would not be at all

surprised if counsel collaborate on stipulating to excuse people who have issues

that preclude them from being fair to both sides in this case that have nothing to do

with the penalty discussion.”

A court may allow counsel to prescreen juror questionnaires and stipulate

to juror dismissals. (People v. Booker (2011) 51 Cal.4th 141, 159-161; People v.

Benavides (2005) 35 Cal.4th 69, 88-89; People v. Ervin (2000) 22 Cal.4th 48, 72-

73.) When prospective jurors are formally dismissed pursuant to stipulation rather

than cause, the trial court makes no findings, and we have nothing we can review.

(Booker, at p. 161.) Consequently, a stipulation to the excusal of jurors forfeits

any subsequent objection to their omission from the jury pool. (Id. at p. 159;

Benavides, at pp. 87-88; Ervin, at p. 73.)

Duff argues that because the court made no findings, we do not know why

each juror was objectionable. Next, he concludes that in the absence of findings,

we must assume Witherspoon-Witt concerns underlay each dismissal, and he

argues such concerns are not borne out by the jurors’ questionnaires. While it is

true that the trial court made no findings, the conclusion does not follow. As the

trial court recognized, any number of reasons unrelated to a prospective juror’s

views on the death penalty might lead both sides to conclude the juror is

unsuitable or otherwise subject to excusal. (See Code Civ. Proc., §§ 204,


subd. (b), 225, subd. (b)(1), 228, 229.)5 The absence of a record, attributable to

Duff’s stipulation to each dismissal, precludes us from speculating and

entertaining Duff’s claim on appeal.

2. Excusal for Cause: Witherspoon-Witt

In the course of voir dire, the trial court granted over Duff’s objection the

prosecution’s motion to excuse Prospective Juror S.L. for cause on Witherspoon-

Witt grounds. Duff renews his objection on appeal, arguing the excusal of S.L.

violated his rights under Witherspoon, supra, 391 U.S. 510, Witt, supra, 469 U.S.

412, and their progeny. In an essentially related argument, he contends that his

equal protection rights were violated because Juror S.L. was excused on account

of her religious beliefs.

“Under both the state and federal Constitutions, a criminal defendant is

guaranteed the right to be tried by an impartial jury. (Cal. Const., art. I, § 16; U.S.

Const., 6th & 14th Amends.) A prospective juror may be excused for cause only

if his or her views in favor of or against capital punishment ‘would “prevent or

substantially impair the performance of his [or her] duties as a juror in accordance

with [the court’s] instructions and [the juror’s oath].” ’ (Witt, supra, 469 U.S. at

p. 424; see Uttecht v. Brown (2007) 551 U.S. 1, 9.) Although opposition to the

death penalty does not necessarily afford a basis for excusing a juror for cause

(People v. Martinez (2009) 47 Cal.4th 399, 425), the prosecutor may properly

challenge those prospective jurors whose opposition to the death penalty ‘would

not allow them to view the proceedings impartially, and who therefore might


Indeed, when Prospective Juror D.L. was excused by stipulation at the same

time as two other jurors, the trial court noted that different unspecified reasons lay
behind the excusal of each juror.


frustrate administration of [the] death penalty scheme.’ (Witt, supra, at p. 416.)”

(People v. Clark (2011) 52 Cal.4th 856, 895.)

On appeal, we consider whether the trial court’s ruling is fairly supported

by the record. (People v. McKinzie (2012) 54 Cal.4th 1302, 1328; People v.

Pearson (2012) 53 Cal.4th 306, 327.) “When the prospective juror’s answers on

voir dire are conflicting or equivocal, the trial court’s findings as to the

prospective juror’s state of mind are binding on appellate courts if supported by

substantial evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10.) “ ‘Deference

to the trial court is appropriate because it is in a position to assess the demeanor of

the venire, and of the individuals who compose it, a factor of critical importance in

assessing the attitude and qualifications of potential jurors.’ ” (McKinzie, at

p. 1329, quoting Uttecht v. Brown, supra, 551 U.S. at p. 9.)

Juror S.L.’s questionnaire revealed someone profoundly conflicted as to

whether she could ever personally vote to impose the death penalty. She checked

that she could give honest consideration to both life and death and circled that she

was only “Somewhat Opposed” to the death penalty. But she also wrote, “I am

Catholic and I do not believe I could send someone to their death” and “I’m just

not sure if I could live with myself if I had to send someone to their death.”

Numerous other answers elaborated on the internal tension she felt. (E.g., “I feel

[the] death penalty is a deterrent, I understand why it is necessary. But I also

believe that only God has the right to take away life. It is a conflict in my life that

I have not yet been able to resolve. I err on the side of God.”; “I understand why it

works as a deterrent so I can’t oppose it (as I know I should). But I cannot

condone it as it is not what I believe God would want us to do.”) Answering

whether her views would always cause her to vote against the death penalty, she

checked “Yes,” then crossed that out, checked “No,” and explained: “I would


follow the law, I would not intentionally break the law, but I am not sure I could

live with it.”

She clarified that the tension she experienced was personal, and not because

she felt obligated to follow her church’s or anyone else’s views; although religion

was for her “100% of my life” and the death penalty was “against the Catholic

beliefs,” she felt “this way because of what I have read about God in the Bible, not

because the Church says so.” In that vein, she noted, “My husband is strongly in

favor [of the death penalty] but I follow my own path, God holds me accountable

for my acts. I must decide what is correct for myself.”

Presented with a questionnaire that left it ultimately unclear whether the

prospective juror would be able to be guided by the court’s instructions as opposed

to her personal views, the trial court and counsel appropriately conducted a

lengthy voir dire to ascertain the precise nature of the juror’s sentiments. (Cf.

People v. Riccardi (2012) 54 Cal.4th 758, 782 [court committed reversible error

by failing to conduct voir dire before excusing on Witherspoon-Witt grounds a

juror with ambiguous questionnaire answers].) As the court explored her views,

S.L. repeatedly avowed that while she would try to do what the law asked of her

notwithstanding her religious beliefs, she was unsure whether she “could

separate—completely separate those beliefs from me and my decision making

because that’s what has influenced all of my decisions all of my life.” (See also,

e.g., “I don’t know that [my religious beliefs] would not influence me. It’s been

my whole life. I mean my—my belief—it’s my whole life. So I don’t know that

it would not influence me. [¶] I wouldn’t try—I would try not to allow that to

influence me. [¶] But I’ve never been in a position where I have to make that kind

of a decision before. I don’t know. [¶] I mean I can’t say 100 percent that

never—it would never influence me at all. [¶] It’s not something that I have ever

had to separate from my life before.”)


Questioned by defense counsel as to whether she could vote for death if the

aggravating circumstances outweighed the mitigating circumstances, S.L. offered,

“I think that if it was—like you said it would have to be something that would be

so completely—I could—I’m not sure how well I would live with myself after

that. [¶] But I think that I could. That’s my job and my responsibility to do that.”

Asked if she could vote for death even though it was personally unpleasant, she

indicated, “I believe so, yes.”

After confirming to the prosecution that she thought it wrong to put

someone to death, S.L. was asked how it could ever be right to vote to put

someone to death: “Truthfully I don’t know. [¶] I’ve never faced this before. I’ve

never been in a position to have to do that before. [¶] I—I could only tell you that

I would do the best that I could do if I was put in this position.” After agreeing

that the right thing to do would be to always vote for life, she explained, “I guess

basically my conflict resides in that doing the right thing could mean not doing

something correct in the law. [¶] I don’t know.” Moments later, after agreeing

that voting for death would “be directly violating what God told you not to do,”

S.L. offered, “I do think it would be wrong for me to sit on the jury. [¶] It is just

because I don’t think that—I know what I’m capable of doing. I don’t know that I

would 100 percent be capable of doing this.” The prosecutor asked if S.L. “could

not really live with yourself if you actually vote for the death penalty?” and S.L.

replied, “Yeah. [¶] That’s true.”

Thereafter, the trial court considered the prosecution’s motion to excuse

S.L. for cause and concluded the juror had made clear she was “not open minded”

and that while she thought “she might be able” to reach a death verdict, “she

doesn’t know how she could live with that decision” and “articulated that this is

not something she should do.” Accordingly, the court found S.L. “substantially

impaired” and excused her from the jury.


Juror S.L.’s questionnaire and responses to voir dire reveal a deep-seated

internal conflict as to whether she could set aside her profound devotion to the

perceived dictates of her religious faith in order to follow the court’s instructions

and render a verdict of life or death based on the evidence before her. She made

clear that she certainly desired to follow the law, but in the end could not shake

substantial doubts that she would be able to do so. The record also makes

apparent that the trial court ultimately excused her not because of her religious

affiliation, but because in its judgment, after viewing her responses to its own

questions and those of counsel, the prospective juror would be substantially

impaired in her ability to follow the court’s instructions and fulfill her duties as a

juror. (See Witt, supra, 469 U.S. at p. 424; People v. Rountree (2013) 56 Cal.4th

823, 847 [The “trial court did not excuse [the juror] because he belonged to any

particular religious denomination, or even because he had any particular religious

beliefs. Rather it excused him because he made it clear that his beliefs would have

substantially impaired the performance of his duties as a juror. Prospective jurors

whose beliefs—whether religiously or otherwise based—prevent them from

impartially performing the duties of a juror, which includes deciding the case

impartially and, ultimately, sitting in judgment, may be excused for cause.”].)

The uncertainty S.L. displayed about her own ability to actually vote for

death exceeded that reflected in the record in any number of recent cases where we

have upheld excusals for cause based on the effect a juror’s religious beliefs would

have on her or his ability to act. (See, e.g., People v. Rountree, supra, 56 Cal.4th

at p. 847 [the “juror could hardly have been more equivocal about whether he

could set aside his religious convictions and perform a juror’s duties”]; People v.

Jones (2012) 54 Cal.4th 1, 43 [“equivocal and conflicting” answers “indicated that

[the prospective juror] harbored very serious doubts concerning whether, if seated

on a capital jury, she could ever personally vote to impose the death penalty” and


supported the trial court’s conclusion that her religious beliefs would substantially

impair the performance of her duties]; People v. Cowan (2010) 50 Cal.4th 401,

441 [the trial court is in the best position to determine whether a juror uncertain

about her ability to impose death because “punishment was for God alone” can

serve or would be substantially impaired].) As in these cases, substantial evidence

supports the trial court’s assessment that a juror deeply conflicted about her ability

to follow the court’s instructions and disregard her personal belief that it would

never be right for mortals to put someone to death is substantially impaired, and

we accordingly defer to that determination.

3. Wheeler-Batson Motion

During jury selection, the prosecution at one point used three consecutive

peremptory challenges on African-American prospective jurors. Duff challenged

this exercise of peremptories as race-based. The trial court ruled Duff had not

made out a prima facie case of discrimination but invited the prosecutor to make a

record of his reasons, and the prosecutor did so. Thereafter, the trial court denied

Duff’s motion. The jury as seated included no African-Americans.6 Duff renews

his objection on appeal. We find no error.

a. Legal Principles

The federal Constitution, state Constitution, and state statutory law all

prohibit the use of peremptory challenges to exclude prospective jurors based on

race. (Batson v. Kentucky (1986) 476 U.S. 79, 97; People v. Wheeler (1978) 22

Cal.3d 258, 276 (Wheeler); Code Civ. Proc., § 231.5.) “The prosecution’s use of

peremptory challenges to remove prospective jurors based on group bias, such as


Duff is Caucasian. Hagan was also Caucasian. Riley was African-



race or ethnicity, violates a defendant’s right to trial by a jury drawn from a

representative cross-section of the community under article I, section 16 of the

California Constitution and his right to equal protection under the Fourteenth

Amendment to the United States Constitution.” (People v. Blacksher (2011) 52

Cal.4th 769, 801.)

“ ‘There is a rebuttable presumption that a peremptory challenge is being

exercised properly, and the burden is on the opposing party to demonstrate

impermissible discrimination.’ ” (People v. Dement (2011) 53 Cal.4th 1, 19; see

also Purkett v. Elem (1995) 514 U.S. 765, 768.) Under a now-familiar three-step

process, to carry this burden a defendant must first “make out a prima facie case

‘by showing that the totality of the relevant facts gives rise to an inference of

discriminatory purpose.’ [Citation.] Second, once the defendant has made out a

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

exclusion’ by offering permissible race-neutral justifications for the strikes.

[Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must

then decide . . . whether the opponent of the strike has proved purposeful racial

discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168, fn.

omitted.) The same rules apply to state constitutional claims. (People v. Taylor

(2009) 47 Cal.4th 850, 886.)

Here, although the trial court found no prima facie case had been made out,

it permitted the prosecutor to make a complete record of his reasons as to each of

the three challenges. Consequently, as in People v. Cowan, supra, 50 Cal.4th 401,

we may “assume without deciding that defendant established a prima facie case by

pointing out that the prosecutor used three of the 18 peremptory challenges she

exercised to strike all of the African-American prospective jurors called to the jury

box, resulting in no African-Americans serving on defendant’s jury” (id. at

pp. 447-448) and directly “proceed to the second and third steps of the


Batson/Wheeler analysis” (id. at p. 448; see also People v. Mai (2013) 57 Cal.4th

986, 1050; People v. Elliott (2012) 53 Cal.4th 535, 560-561; People v. Thomas

(2011) 51 Cal.4th 449, 474). The key question at this juncture is how persuasive

the prosecutor’s proffered justifications are, considering, inter alia, their inherent

plausibility and their relation to accepted trial strategy considerations. (Miller-El

v. Cockrell (2003) 537 U.S. 322, 338-339; Cowan, at p. 448.) For each of the

three excused jurors, we conclude the prosecutor’s stated reasons are fully

supported by the record and are plausible, nondiscriminatory bases for exercising a

peremptory. (See Mai, at pp. 1050-1054; Cowan, at p. 448; People v. Zambrano

(2007) 41 Cal.4th 1082, 1106.)

b. Prospective Juror T.T.

The prosecutor offered four reasons for excusing Prospective Juror T.T.

First, his brother had just been released after six years in prison. Second, T.T. was

uncertain as to whether the People should have a higher burden of proof in a

murder case. Third, T.T. came across during voir dire as “incredibly timid,”

“probably the quietest person that we interviewed. He was very quiet, and I

characterized him as being timid,” and “seemed scared” about the possibility of

having to vote on the death penalty. Fourth, the prosecutor observed the

prospective juror apparently sleeping in the hallway outside the courtroom with

sunglasses on, and was concerned about how he would fit in with other jurors.

The record supports the first three of these reasons that are rooted in T.T.’s

questionnaire or voir dire responses. T.T.’s brother had in fact just been released

after an apparent six-year prison sentence, and we have routinely recognized a

prospective juror’s family’s negative experience with the justice system as a

legitimate potential reason to want to excuse a juror (e.g., People v. Booker, supra,

51 Cal.4th at p. 167, fn. 13; People v. Bonilla (2007) 41 Cal.4th 313, 343; People


v. Avila (2006) 38 Cal.4th 491, 554-555). In his questionnaire, T.T. was unsure

whether the People should face a higher standard of proof in murder cases, and in

voir dire he indicated the People should have to prove guilt “without a reasonable

shadow of a doubt” (see People v. Mills (2010) 48 Cal.4th 158, 176-177

[legitimate for prosecutor to want to excuse juror who may wish to impose higher

standard of proof]). In his questionnaire, T.T. described himself as a “Follower[.]

I just don’t like the responsibility . . . .” and “kind of scared at the possible

thought of” the death penalty. During voir dire, he described himself as a “little

nervous” about the prospect of being on the jury and at another point dropped his

voice so low counsel had to ask him to repeat himself. We have recognized that

prosecutors may legitimately choose to shy away from followers or unduly timid

jurors. (People v. Ledesma (2006) 39 Cal.4th 641, 679; People v. Johnson (1989)

47 Cal.3d 1194, 1220.)

c. Prospective Juror L.T.

The prosecutor described Prospective Juror L.T.’s questionnaire answers as

jumping out as “unusual.” He believed the juror had been significantly late to

court one day, and was bothered that L.T. thought lawyers made too much money,

that he was overly eager to be on the jury, that his mannerisms seemed unusual,

and that he pressed the bailiff with a wealth of questions, giving rise to concern

that he would be a potential annoyance or problem juror. The trial court thought

the record “quite clear” as to reasons one might want to excuse L.T., even before

the prosecutor put his justifications on the record.

The prosecutor did not identify particular questionnaire answers he thought

unusual. Among those that might have stood out, L.T. disclosed he had been

arrested for driving with a suspended license and was not happy about being fined

and losing his car. Prosecutors and defense attorneys were necessary “but make


way too much money,” a view he confirmed on voir dire, adding that as a result

“not everyone is given the same access to the resource.” Victim impact evidence

was in his mind irrelevant because the “crime wasn’t necessarily against the


On voir dire, asked about the prospect of being a juror, L.T. replied, “To be

honest I’m actually kind of looking forward to it. [¶] I’ve wanted to be in jury

duty for some time now, and I feel that it’s the perfect thing here. The first time

around I get a case where I get to really get involved in and understand the legal

system a little more. So I welcome the chance.” The record does not confirm

whether L.T. frequently questioned court staff, but he did interrupt jury selection

to ask how many peremptories the parties got just moments before he himself was


The reasons that can be confirmed in the record are plausible nonpretextual

grounds for choosing to excuse a juror. (See, e.g., People v. Thompson (2010) 49

Cal.4th 79, 108-109 [upholding excusal of prospective juror for, inter alia, being

too eager to be on a jury]; People v. Ervin, supra, 22 Cal.4th at pp. 76-77 [same].)

The prosecutor could reasonably be concerned that L.T. would not consider

penalty phase victim impact evidence and that he might feel hostility toward one

or both side’s attorneys that would color his deliberations. “[T]he law recognizes

that a peremptory challenge may be predicated on a broad spectrum of evidence

suggestive of juror partiality. The evidence may range from the obviously serious

to the apparently trivial, from the virtually certain to the highly speculative.”

(Wheeler, supra, 22 Cal.3d at p. 275; see also People v. Lenix (2008) 44 Cal.4th


The question, coming at the very tail of the selection process, was

apparently posed with some impatience, because the trial court rejoined, “Mr. [T.],
there is an end.”


602, 613 [“ ‘[E]ven a “trivial” reason, if genuine and neutral, will suffice.’

[Citation.] A prospective juror may be excused based upon facial expressions,

gestures, hunches, and even for arbitrary or idiosyncratic reasons.”].)

d. Prospective Juror T.M.

The prosecutor identified three concerns about Prospective Juror T.M.

First, she indicated on her questionnaire that she had seen police brutality. As the

prosecutor noted, during various points in Duff’s interrogation and subsequent

calls to his mother and girlfriend, Duff complained that he had been beaten up and

hurt by the police officers who arrested him. The prosecutor was concerned that,

given T.M.’s past experience, she might be more open to an argument that Duff’s

confession was involuntary or a product of police brutality.

Second, asked whether a person’s background and upbringing can affect his

or her adult life, T.M. indicated on her questionnaire, “People generally are

products of their environment.” The prosecutor explained that Duff’s penalty

phase argument was likely to focus heavily on the contention that Duff “is, in fact,

a product of his own environment, that he was—that he was mistreated when he

was younger, that he had a bad childhood, and that it’s no wonder that he ended up

in the place he is. [¶] And I think that kind of an argument, just from my reading

of the questionnaire and watching [T.M.], listening to the answers she gave in

court, I think she is going to be more susceptible to that kind of an argument.”

Finally, the prosecutor noted that T.M. had failed to show up for the final

day of jury selection, the day she was peremptorily challenged and the court heard

the Wheeler-Batson motion. The prosecutor could reasonably be concerned that

future tardiness or absences might delay trial proceedings. The other two

proffered reasons—susceptibility to an argument that Duff’s confession was in

part due to police brutality and to an argument that Duff was simply a product of


his environment and thus his culpability was mitigated—are likewise wholly

plausible and firmly grounded in acceptable trial strategy considerations.8 Duff

thus has not carried his burden of showing the prosecutor’s justifications for

exercising peremptories were a pretext for invidious racial discrimination. (See

People v. Taylor, supra, 47 Cal.4th at p. 891 [defendant’s burden is to show

discrimination, not just that one or more nondiscriminatory reasons are

unsupported by the record].)


1. Disposal of the Car in Which the Victims Were Shot

Riley’s and Hagan’s bodies were found in a hatchback car stolen from a

third party. Police used a superglue process to test the interior for fingerprints and,

because that procedure involved toxic chemicals, purchased the car from the

owner rather than returning it to her. The interior was photographed and

videotaped and then, in accordance with standard procedures for cars subjected to

the superglue process, the car was towed away in March 1998 with the expectation

it would be crushed. The car was still in a salvage yard in September 1998, but

was apparently destroyed sometime thereafter.

In October 2001, because his expert was no longer able to examine and test

the car, Duff brought a motion for sanctions for the spoliation of evidence. He

argued that the state had breached its duty to preserve exculpatory evidence and


We note as well that on the morning of the final day of jury selection, when

T.M. failed to appear, the trial court offered the parties a choice between recessing
for the day, pressing on with a placeholder in T.M.’s seat to indicate her
continuing provisional inclusion on the jury, or summary dismissal of T.M. Had
the prosecution been looking for any pretextual excuse to dismiss T.M., it could
have availed itself of the opportunity to lobby for her summary dismissal at that
point. The prosecution did not, electing instead to carry on with a placeholder,
until it ultimately exercised one of its peremptories to excuse T.M.


thus violated his due process rights. (See California v. Trombetta (1984) 467 U.S.

479, 488-489 (Trombetta).) The trial court concluded that because it was

extremely unlikely anything of exculpatory value had been lost and Duff had not

shown the car’s destruction was an act of bad faith, no sanctions were warranted.

We review the trial court’s denial of Duff’s Trombetta motion for substantial

evidence (People v. Carter (2005) 36 Cal.4th 1215, 1246) and find no error.

“Due process does not impose upon law enforcement ‘an undifferentiated

and absolute duty to retain and to preserve all material that might be of

conceivable evidentiary significance in a particular prosecution.’ ” (People v.

Wallace (2008) 44 Cal.4th 1032, 1083, quoting Arizona v. Youngblood (1988) 488

U.S. 51, 58.) At most, the state’s obligation to preserve evidence extends to

“evidence that might be expected to play a significant role in the suspect’s

defense.” (Trombetta, supra, 467 U.S. at p. 488; accord, People v. Alexander

(2010) 49 Cal.4th 846, 878.) If the evidence’s exculpatory value is apparent and

no comparable evidence is reasonably available, due process precludes the state

from destroying it. (Trombetta, at p. 489; Alexander, at p. 878.) If, however, “no

more can be said [of the evidence] than that it could have been subjected to tests,

the results of which might have exonerated the defendant” (Youngblood, at p. 57,

italics added), the proscriptions of the federal Constitution are narrower; “unless a

criminal defendant can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due process of law” (id.

at p. 58; accord, People v. Tafoya (2007) 42 Cal.4th 147, 187; People v. DePriest

(2007) 42 Cal.4th 1, 42).

The loss of the hatchback car falls in the latter category. Duff did not

demonstrate to the trial court, and does not establish here, that the car had any

exculpatory value apparent to the police such that an obligation to preserve

evidence would arise. Rather, he contends only that if it had been preserved, the


car could have been subjected to additional tests beyond those conducted by the

People’s expert, tests whose results might have supported Duff’s theory that he

was shot at and acted in self-defense.

Duff’s claim of error fails because he cannot demonstrate the bad faith

required under these circumstances by Arizona v. Youngblood, supra, 488 U.S. at

page 58. Duff argues that the prosecution’s failure to notify defense counsel of the

intention eventually to destroy the car demonstrates bad faith, but (1) there was no

showing of such a failure, as the original prosecutor simply could not recall

whether she ever advised Duff’s then-defense counsel, who was deceased by the

time of the Trombetta hearing and thus unable to testify; and (2) Duff does nothing

to rebut the showing that the car was disposed of in accordance with the police

department’s usual procedures for cars subjected to the particular toxic

fingerprinting procedure employed in this case. A showing that evidence was

disposed of in accordance with standard procedures in the ordinary course of

business suggests police acted in good faith. (People v. Tafoya, supra, 42 Cal.4th

at p. 187.)9 Accordingly, no due process violation occurred.

2. Introduction of Duff’s Statements

Duff moved pretrial to suppress all statements he made to the police while

in custody on February 26, 1998, based on alleged violations of Miranda v.

Arizona (1966) 384 U.S. 436 and due process. The trial court held an evidentiary


For the first time in his reply brief, Duff argues that the failure to conduct

further tests on the car in the six months or more it sat in a junk lot was ineffective
assistance of counsel. It is rarely appropriate to resolve an ineffective assistance
claim on direct appeal (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267);
we certainly will not do so where, as here, the claim is omitted from the opening
brief and thus waived (People v. Barragan (2004) 32 Cal.4th 236, 254, fn. 5;
Varjabedian v. City of Madera (1979) 20 Cal.3d 285, 295, fn. 11).


hearing and denied the motion, concluding that Duff was advised of his rights and

knowingly and voluntarily waived them, police were not required to readvise him

when questioning resumed after a short break that same day, and nothing he said

was the product of unlawful coercion or threats. After Duff’s change in counsel

resulted in a postponement of trial, a new trial judge afforded Duff the opportunity

to reargue the motion, but the court again denied it. The prosecution thereafter

played for the jury a videotape of a portion of Duff’s interrogation, during which

Duff confessed to shooting Riley and Hagan. Duff argues reliance on this

evidence violated his privilege against self-incrimination and due process rights.

(U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15.)

Miranda v. Arizona, supra, 384 U.S. 436, and its progeny protect the

privilege against self-incrimination by precluding suspects from being subjected to

custodial interrogation unless and until they have knowingly and voluntarily

waived their rights to remain silent, to have an attorney present, and, if indigent, to

have counsel appointed. [Citations.] ‘If a suspect indicates “in any manner and at

any stage of the process,” prior to or during questioning, that he or she wishes to

consult with an attorney, the defendant may not be interrogated.’ [Citation.]”

(People v. Gamache (2010) 48 Cal.4th 347, 384.) “To establish a valid Miranda

waiver, the prosecution bears the burden of establishing by a preponderance of the

evidence that the waiver was knowing, intelligent, and voluntary under the totality

of the circumstances of the interrogation.” (People v. Linton (2013) 56 Cal.4th

1146, 1171, citing People v. Williams (2010) 49 Cal.4th 405, 425.)

As well, “[b]oth the state and federal Constitutions bar the prosecution from

introducing a defendant’s involuntary confession into evidence at trial.” (People

v. Linton, supra, 56 Cal.4th at p. 1176; see also People v. Scott (2011) 52 Cal.4th

452, 480; People v. Williams, supra, 49 Cal.4th at p. 436.) As with Miranda

waivers, the People bear the burden of establishing by a preponderance of the


evidence the voluntariness of a confession. (People v. Tully (2012) 54 Cal.4th

952, 993; Scott, at p. 480; People v. Carrington (2009) 47 Cal.4th 145, 169.)

In reviewing the trial court’s denial of a suppression motion on Miranda

and involuntariness grounds, “ ‘ “we accept the trial court’s resolution of disputed

facts and inferences, and its evaluations of credibility, if supported by substantial

evidence. We independently determine from the undisputed facts and the facts

properly found by the trial court whether the challenged statement was illegally

obtained.” ’ ” (People v. Enraca (2012) 53 Cal.4th 735, 753; accord, People v.

Williams, supra, 49 Cal.4th at pp. 425, 436.) Where, as was the case here, an

interview is recorded, the facts surrounding the admission or confession are

undisputed and we may apply independent review. (People v. McWhorter (2009)

47 Cal.4th 318, 346.)

As we shall explain, the trial court did not err in admitting any of Duff’s


a. Initial Waiver of Miranda Rights

On February 24, 1998, Duff was arrested on unrelated charges. The next

day, police discovered the car with Riley’s and Hagan’s bodies inside not far from

where Duff lived and where he had been picked up. On February 26, police

questioned Duff about the Riley/Hagan murders.

At the outset of questioning, Detective Toni Winfield advised Duff of his

Miranda rights to silence, to an attorney, and so on. Duff replied that he

understood them. Asked whether he still wished to talk with Detective Winfield,

Duff initially replied, “I don’t know. Sometimes they say it’s—it’s better if I have

a—a lawyer.” The detective continued:

“WINFIELD: You know, sometimes they do. Yeah. Yeah. You know,

but sometimes—uh—a lot of times people want to talk and—and want to—uh—


clarify, let’s say for instance—um—where they were during that period of time.

Because, really, you could provide me—and it’s entirely up to you. It’s—it really

is. You can provide me with individuals who could verify where you were that I

wouldn’t otherwise get. You know what I mean? And so that’s—um—that’s kind

of—uh—you know, the way it—the—the way it works. And in—in most cases,

the individuals that I talk to do, in fact, give me—um—other circumstances for me

to go and check out. That’s why one person’s interview leads to another person’s,

and another’s, and another’s, and we end up, you know, doing a lot of interviews.

So that’s why I told you I’ve all—I’ve—I have already spoken with quite a few

people. And that’s what, eventually, you know, led us to trying to talk to you.

“DUFF: Yeah.

“WINFIELD: And if at any time—like I say, if at any time you want to

stop the interview and say, ‘Hey, I don’t—I don’t—I don’t feel like answering that

question,’ then you have that option.

“DUFF: Okay. Okay. I understand.

“WINFIELD: You understand?

“DUFF: Yeah.

“WINFIELD: Okay. So are you willing to talk about the—you know,

where you were and that kind of a thing?

“DUFF: Yeah. (Unintelligible.)

“WINFIELD: Okay. I mean, I just want you to feel confident with that.

You do feel—you feel confident with that?

“DUFF: Yeah.

“WINFIELD: Okay. All right. So—um—then you keep your rights in

mind. And if at some time, you know, you don’t feel like answering another

question, then you—you just tell me no. Okay?

“DUFF: Okay.”


Duff does not contend his remark, “Sometimes they say it’s—it’s better if I

have a—a lawyer,” was an unambiguous invocation of the right to counsel

sufficient to require that all questioning cease. (See, e.g., Smith v. Illinois (1984)
469 U.S. 91, 98; People v. Cruz (2008) 44 Cal.4th 636, 668.) He does, however,

argue that it was at least an equivocal invocation of the right to counsel, that it

placed Detective Winfield under a duty to clarify Duff’s desires and obtain a clear

and unequivocal waiver, and that she never did so.

We agree with Duff that because his reference to a lawyer occurred at the

beginning of questioning, the rules respecting pre-Miranda waiver invocations of

the right to counsel apply. (See People v. Williams, supra, 49 Cal.4th at p. 427

[inquiries into the initial waiver of the right to counsel and the sufficiency of

subsequent postwaiver invocation are distinct]; United States v. Rodriguez (9th

Cir. 2008) 518 F.3d 1072, 1078-1080 [articulating different rules for police

conduct before and after an initial waiver of the right to counsel].) Thus, the

postwaiver rule rejecting any duty to clarify ambiguous invocations and permitting

an officer to continue substantive questioning “ ‘until and unless the suspect

clearly requests an attorney,’ ”10 upon which the People principally rely, is

inapposite here.

In the face of an initial equivocal reference to counsel, we have held that an

officer is permitted to clarify the suspect’s intentions and desire to waive his or her

Miranda rights. (People v. Williams, supra, 49 Cal.4th at p. 428 [collecting


People v. Williams, supra, 49 Cal.4th at page 427, quoting Davis v. United

States (1994) 512 U.S. 452, 461; see also Berghuis v. Thompkins (2010) 560 U.S.
370, 381 (If after waiver “an accused makes a statement concerning the right to
counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not
required to end the interrogation, [citation], or ask questions to clarify whether the
accused wants to invoke his or her Miranda rights.”).


cases].) The Ninth Circuit has explicitly declared that an officer not only may, but

must, clarify the suspect’s intentions before initiating substantive questioning.

(United States v. Rodriguez, supra, 518 F.3d at p. 1080 [“Prior to obtaining an

unambiguous and unequivocal waiver, a duty rests with the interrogating officer to

clarify any ambiguity before beginning general interrogation.”]; but cf. Berghuis v.

Thompkins, supra, 560 U.S. at p. 387 [rejecting the argument that a clear waiver

must always precede questioning because “[t]he Miranda rule and its requirements

are met if a suspect receives adequate Miranda warnings, understands them, and

has an opportunity to invoke the rights before giving any answers or

admissions.”].) We have occasionally implied the same rule as the Ninth

Circuit’s. (See, e.g., People v. Box (2000) 23 Cal.4th 1153, 1194 [“If a suspect’s

request for counsel or invocation of the right to remain silent is ambiguous, the

police may ‘continue talking with him for the limited purpose of clarifying

whether he is waiving or invoking those rights.’ ” Quoting People v. Johnson

(1993) 6 Cal.4th 1, 27, italics added].)

Even so, no Miranda violation occurred here. If we assume Duff’s remark

was an equivocal invocation of the right to counsel and that Detective Winfield

was obligated to clarify Duff’s desire to waive his rights before proceeding with

the interrogation, she did so. Before asking any other questions, Detective

Winfield reiterated that the decision whether to talk was “entirely up to [Duff]”

and he could “at any time . . . stop the interview.” She then asked directly, “So are

you willing to talk about the—you know, where you were and that kind of a

thing?”; he replied, “Yeah.” She asked again, “I just want you to feel confident

with that. You do feel—you feel confident with that?”; he repeated, “Yeah.” She

confirmed a third time, “[Y]ou keep your rights in mind. And if at some time, you

know, you don’t feel like answering another question, then you—you just tell me

no. Okay?”; he assented a third time to speak with her. We agree with the trial


court that Detective Winfield was not under a legal obligation to follow any

particular script in ascertaining Duff’s desires; she did not badger Duff but instead

lawfully “proceeded to talk to him to see whether or not he wanted to talk without

having to ask him specifically to clarify his ambiguous statement any more than he

did by continuing to talk.” (See People v. Clark (1993) 5 Cal.4th 950, 991 [no

Miranda violation where the “interrogators did not ask defendant substantive

questions until defendant’s position was clarified and a valid waiver was obtained”

and “no coercive tactics were employed in order to obtain defendant’s Miranda


b. Duty to Readvise of Miranda Rights

After less than an hour of questioning, Duff asked to stop, explaining that

his head was “kind of numb” and he was “kind of brain boggled.” Detective

Winfield ended her questioning and prepared to leave. As she did, Duff asked if

Detective Dick Woods was still around. Detective Winfield indicated Woods was

and asked if Duff wanted to talk with him. Duff affirmed that he did.

Winfield left, and after 23 minutes, Detective Woods appeared. Woods and

Duff engaged in small talk for a few minutes. After Duff asked for and was

allowed a bathroom break, Woods indicated he wanted to ask Duff a few questions

and offered to bring Detective Winfield back. Duff declined, explaining, “Well, it

don’t really matter, just—I just want to hurry up and get this over with, man.”

Detective Woods proceeded to question Duff; eventually, Duff confessed to

shooting both Riley and Hagan.

Duff contends everything he said to Detective Woods should have been

suppressed because he asked to stop the interview and because he did not receive

new Miranda warnings after the break between questioning by Detective Winfield

and Detective Woods.


The trial court correctly found no error. The record supports its conclusion

that Detective Winfield promptly stopped questioning Duff when he asked for the

interview to stop. It also supports the trial court’s conclusion that Detective

Woods only arrived to talk with Duff at Duff’s request. Under these

circumstances, no readvisement was required. “After a valid Miranda waiver,

readvisement prior to continued custodial interrogation is unnecessary ‘so long as

a proper warning has been given, and “the subsequent interrogation is ‘reasonably

contemporaneous’ with the prior knowing and intelligent waiver.” [Citations.]’

[Citation.] The necessity for readvisement depends upon various circumstances,

including the amount of time that has elapsed since the first waiver, changes in the

identity of the interrogating officer and the location of the interrogation, any

reminder of the prior advisement, the defendant’s experience with the criminal

justice system, and ‘[other] indicia that the defendant subjectively underst[ood]

and waive[d] his rights.’ ” (People v. Williams, supra, 49 Cal.4th at p. 434.) We

have permitted as “reasonably contemporaneous” the resumption of interrogation

without a readvisement even a day or two after the initial waiver. (E.g., Williams,

at p. 435; People v. Mickle (1991) 54 Cal.3d 140, 171.) Questioning here just

minutes later, in the very same location as before, by a detective specifically

summoned by the defendant, a defendant the trial court found had been in prison

four times before and was quite familiar with the criminal justice system, was

entirely constitutional notwithstanding the absence of renewed Miranda warnings.

c. Involuntariness

Finally, Duff argues his confession should have been suppressed because it

was involuntary. “ ‘A statement is involuntary if it is not the product of “ ‘a

rational intellect and free will.’ ” [Citation.] The test for determining whether a

confession is voluntary is whether the defendant’s “will was overborne at the time


he confessed.” ’ ” (People v. McWhorter, supra, 47 Cal.4th at pp. 346-347.) In

assessing whether statements were the product of free will or coercion, we

consider the totality of the circumstances, including “ ‘ “the crucial element of

police coercion,” ’ ” the length, location, and continuity of the interrogation, and

the defendant’s maturity, education, and physical and mental health. (People v.

Williams, supra, 49 Cal.4th at p. 436.)

Duff emphasizes his low intelligence, his past drug use, and pain he was

suffering from a scuffle with police when he tried to flee the night of his arrest.

As evidence of police coercion, Duff asserts Detective Woods threatened to cause

problems for Duff’s friends and family. Duff offers no record cites, and with good

reason; the transcript and videotape of his interview do not support the assertion.

To the contrary, as the trial court found, no threats were made. Our own review of

the transcript and videotape of Duff’s interrogation reveals Detectives Winfield

and Woods were trying not to get others in trouble and repeatedly steered clear of

questions that might incriminate anyone other than Duff. We thus affirm the trial

court’s finding that neither Detective Winfield nor Detective Woods ever

threatened or sought to coerce Duff. From the record, it appears Duff confessed to

shooting Riley and Hagan not because his will was overborne, but because he was

capable of making, and made, the rational choice to offer his side of events, in

which he shot Riley and Hagan in self-defense, rather than out of a premeditated

desire to obtain revenge for past slights. Accordingly, Duff’s confession was not

involuntary and was properly admitted.

3. Admission of Victim Images

At trial, the People sought to introduce several videotapes and photographs

of the victims. The videotapes were taken of the area where the car containing the

victims’ bodies was discovered and showed, inter alia, Riley’s and Hagan’s bodies


in the state in which they were found. One set of still photographs likewise

showed the interior of the car and the bodies in situ; another consisted of autopsy

photos showing the location of the victims’ bullet wounds. Duff objected to the

jury being permitted to see close-ups of the victims’ wounds as unduly prejudicial,

but the trial court overruled the objection and concluded the evidence as a whole

was far more probative than prejudicial. The autopsy photographs were

introduced in conjunction with the expert testimony of Dr. Gregory Reiber, a

forensic pathologist; the videotapes were played in conjunction with the testimony

of Detective Jeffrey Gardner, the investigating officer who recorded them.

Duff renews his objection here, asserting that the introduction of images of

the victims’ wounds was an abuse of discretion and violated his constitutional

rights to a fair trial and due process. (U.S. Const., 14th Amend.; Evid. Code,

§ 352.)11 “ ‘The admission of allegedly gruesome photographs is basically a

question of relevance over which the trial court has broad discretion.’ [Citations.]

The further decision whether to nevertheless exclude relevant photographs as

unduly prejudicial is similarly committed to the trial court’s discretion: ‘A trial

court’s decision to admit photographs under Evidence Code section 352 will be

upheld on appeal unless the prejudicial effect of such photographs clearly

outweighs their probative value.’ ” (People v. Bonilla, supra, 41 Cal.4th at p. 353;

see also People v. McKinzie, supra, 54 Cal.4th at p. 1351; People v. D’Arcy (2010)

48 Cal.4th 257, 298; People v. Scheid (1997) 16 Cal.4th 1, 13-19.)

The videotape and photographs were plainly relevant; indeed, Duff does

not offer any argument against their relevance. The critical issue in the case was

whether Duff acted in self-defense, firing at two men who were turned and facing


Duff’s constitutional argument was preserved by his trial objection on state

statutory grounds. (People v. Partida (2005) 37 Cal.4th 428, 435-437.)


him with guns drawn, or whether he acted without provocation, shooting the

victims while they may have been facing away. Officer testimony about the

position of the victims’ bodies and forensic testimony about the location of bullet

wounds could help the jury reach a decision, but images of the victims necessarily

provided crucial corroboration as to their positions and injuries and would have

made it much easier to visualize which version of events fit. In these

circumstances, a picture could be worth a thousand words; the images were not

simply cumulative of other testimony. (See People v. McKinzie, supra, 54 Cal.4th

at pp. 1351-1352 [autopsy and crime scene photos of a victim can be “highly

probative of how the victim was killed”]; People v. Brents (2012) 53 Cal.4th 599,

617 [the People are not obligated to rely solely on live witnesses to the exclusion

of photographic evidence]; People v. Cruz, supra, 44 Cal.4th at p. 671 [autopsy

photos are admissible to corroborate coroner testimony].)

Nor were the images more prejudicial than probative. While they carried

substantial probative value—showing, for example, that both Riley and Hagan

were shot from behind—they depicted minimal blood and were no more gruesome

than one would expect of any pictures of gunshot victims. (See People v. Moon

(2005) 37 Cal.4th 1, 35 [“ ‘ “ ‘[M]urder is seldom pretty, and pictures, testimony

and physical evidence in such a case are always unpleasant.’ ” ’ ”].) The trial

court’s exercise of discretion to admit images of the victims was neither statutory

nor constitutional error.

4. Exclusion of Photo of Victim’s Tattoo

Before trial, the People moved to exclude reference to and photographs of

Roscoe Riley’s tattoos, in particular a tattoo on his right arm of a hand pointing a

revolver. The trial court granted the motion. Duff contends exclusion of a

photograph of Riley’s gun tattoo violated his statutory and constitutional rights to


admission of relevant evidence. (U.S. Const., 14th Amend.; Cal. Const., art. I,

§ 7; Evid. Code, § 351.) The trial court did not err.

Evidence must be relevant to be admissible. (Evid. Code, § 350.)

Moreover, even if relevant, it may be excluded if the court determines that its

prejudicial impact substantially outweighs any probative value. (Id. § 352.) We

afford trial courts wide discretion in assessing whether in a given case a particular

piece of evidence is relevant and whether it is more prejudicial than probative.

(See People v. Homick (2012) 55 Cal.4th 816, 865; People v. Tully, supra, 54

Cal.4th at p. 1010.)

Duff argues the photograph was relevant to show both that Riley was armed

(because it indicated an affinity for guns) and that Duff believed Riley to be armed

and dangerous and thus had acted in self-defense. As to the tattoo tending to

prove Riley carried a real gun on the day he was shot, the trial court correctly

recognized it would be cumulative of considerable other testimony showing Riley

was armed with a .357—a point, moreover, that the People freely conceded. As to

the tattoo bearing on Duff’s justifications for his actions, any such relevance

would depend entirely on proving as a foundational matter that Duff knew Riley

had such a tattoo, a point Duff acknowledges. The trial court invited Duff to

introduce evidence that he knew of the tattoo. Duff did not. In the absence of

such a foundation, it was not error to conclude the photograph of the tattoo was

cumulative or simply irrelevant.12


The trial court did not specify whether it was provisionally excluding the

photograph on grounds of irrelevance or prejudice. To the extent its ruling rested
in part on a conclusion the photograph’s prejudicial impact outweighed any
slender relevance it might have, because of negative associations jurors might
have concerning people with tattoos, that conclusion would not have been an
abuse of discretion.


Nor was exclusion of the photograph a violation of Duff’s equal protection

rights simply because the trial court simultaneously admitted numerous

photographs of the decedents’ gunshot wounds. Gunshot wound photographs, in

combination with expert forensic testimony, supported the People’s theory as to

how Duff shot Riley and Hagan. The photograph of Riley’s tattoo had no

comparable relevance.

5. Dismissal of Two Jurors for Illness

At two different junctures during trial, jurors called in sick. Each time, the

trial court consulted with counsel and, over defense objection, elected to replace

the juror with an alternate. Duff contends these changes in the composition of the

jury were an abuse of discretion and violated both his statutory rights and his

federal and state constitutional rights to trial by an impartial jury. (U.S. Const.,

6th & 14th Amends.; Cal. Const., art. I, § 16; § 1089.) We disagree.

On October 30, 2001, during presentation of guilt phase evidence, Juror

No. 6 called in sick with the stomach flu and indicated she would likely be out for

at least the next two days. Duff argued for a two-day continuance but volunteered

that if the juror was then still sick, she would likely have to be replaced. The

People opposed any continuance because the cross-examination of Cynthia

Fernando, their most important witness, was scheduled to begin. Though

Fernando was present and ready to testify, she had proved difficult to get to court;

she had already failed to appear on two other occasions in the immediately

preceding few days. If Fernando failed to show again after a continuance, the

People feared either a motion to strike the direct testimony Fernando had already


given13 or, in light of the significance of Fernando’s testimony and the absence of

any opportunity for cross-examination, a motion for mistrial. The trial court

shared these concerns and replaced Juror No. 6.

On November 28, the first day of the penalty phase, Juror No. 3 called in

sick. On November 24, while court was out of session over Thanksgiving, the

juror was taken ill and went to the emergency room because of bouts of vomiting.

By the fifth day of her illness, she was still sufficiently unwell to appear. Defense

counsel expressed reservations about substituting an alternate who had not

participated in guilt phase deliberations and asked the court to continue the matter

for one day before replacing the juror. Relying on its evaluation of the juror’s

voice on the voice mail she left, the juror’s subsequent conversation with the court

clerk, and concerns the juror had expressed about her health during voir dire,14 the

trial court removed her and substituted an alternate. To address Duff’s concerns

about the alternate’s absence from guilt phase deliberations, the court offered to

give, and ultimately gave, a pinpoint instruction approved by the defense.

Trial courts may remove any juror who “becomes ill, or upon other good

cause shown to the court is found to be unable to perform his or her duty . . . .”

(§ 1089.) A trial court learning of grounds for dismissal “has an affirmative

obligation to investigate.” (People v. Bonilla, supra, 41 Cal.4th at p. 350.)

However, “[b]oth the scope of any investigation and the ultimate decision whether

to discharge a given juror are committed to the sound discretion of the trial court.”


That testimony included Duff’s statements to Fernando that he was angry

with Riley, that he planned to set him up, rob him, and kill him, and that he had in
fact killed Riley and his friend, as well as her testimony that in the immediate
aftermath of the shootings Duff never mentioned self-defense. (See ante, pp. 3-4.)


Before trial, the juror asked to be excused for cause on health grounds, but

the trial court at that point declined to excuse her.


(Ibid.; see also People v. Nunez and Satele (2013) 57 Cal.4th 1, 57; People v.

Thompson, supra, 49 Cal.4th at p. 137.)

Duff emphasizes that in reviewing a decision to excuse a juror, we do not

ask only whether substantial evidence supports the decision—i.e., whether there is

evidence from which a reasonable trial court could have concluded dismissal was

warranted—but further whether it appears as a “demonstrable reality” that the trial

court actually did rely on such evidence as the basis for its decision. (People v.

Barnwell (2007) 41 Cal.4th 1038, 1052-1053.) He contends reversal under this

standard is required because the trial court dismissed the jurors as a matter of

administrative convenience without obtaining proof to a demonstrable reality that

each juror would be unable to continue.

This argument mistakes the effect of the “less deferential review” (People

v. Barnwell, supra, 41 Cal.4th at p. 1052) we apply to decisions to remove jurors.

The requirement we add to traditional substantial evidence review is that the

record establish the actual basis for the trial court’s decision. So long as it does,

we ask only whether the evidence relied upon was sufficient to support that basis

as grounds for dismissal; we do not independently reweigh the evidence or

demand more compelling proof than that which could satisfy a reasonable jurist.

(Id. at pp. 1052-1053.)

Here, it is undisputed each excused juror was ill and that the illnesses

occasioned their dismissals. By statute, illness is cause to dismiss a juror.

(§ 1089; People v. Roberts (1992) 2 Cal.4th 271, 324.) The demonstrable reality

test does not demand of trial judges confronted with sick jurors that they elicit

conclusive proof of the length of future incapacitation; judges are lawyers, not


doctors.15 Nor does it demand that incapacitation exceed some preset length; in

the right circumstances, an absence of a day or less may warrant excusal. (People

v. Bell (1998) 61 Cal.App.4th 282, 286-289; People v. Hall (1979) 95 Cal.App.3d

299, 305-307.) Whether a juror’s illness can best be accommodated by a

continuance or replacement with an alternate is a matter committed to the trial

court’s discretion.

With respect to Juror No. 6, the trial court shared the People’s concern

about witness Fernando’s unreliability and the consequent risks a continuance

would pose; additionally, it was concerned that a two-day continuance would

result in a lengthy gap between presentation of evidence and closing arguments on

one or both sides, a gap that might impair either party’s presentations or impact

juror deliberations. With respect to Juror No. 3, the trial court was presented with

a juror who had already been ill for five days and was not guaranteed to be well on

the sixth day. Neither decision to substitute an alternate was an abuse of


6. Refusal to Instruct on Lesser Included Offenses

At the close of the guilt phase, Duff sought instructions on second degree

murder and voluntary manslaughter under theories of imperfect self-defense and

heat of passion. The trial court denied the request and confined its instructions to


While Duff takes issue with the extent of the trial court’s investigation, the

Legislature has left the procedure for determining whether grounds for dismissal
exist in the trial court’s hands. (People v. Bonilla, supra, 41 Cal.4th at p. 350;
People v. Dell (1991) 232 Cal.App.3d 248, 256.) In cases of illness, a court is not
obligated to call a juror into court to substantiate his or her excuse and can rely on
phone calls instead. (Dell, at p. 256.) Moreover, in neither instance here does
Duff dispute the facts surrounding the jurors’ unavailability; instead, he takes issue
with the trial court’s chosen remedy. It is unclear what, if any, impact further
investigation would have had on that choice.


first degree murder and justifiable homicide in perfect self-defense. In this court,

Duff argues the refusal to instruct on voluntary manslaughter as a lesser included

offense of first degree murder violated his federal constitutional rights by foisting

on the jury an all-or-nothing choice between capital murder and acquittal. (U.S.

Const., 8th & 14th Amends.; see Beck v. Alabama (1980) 447 U.S. 625, 627.)

A trial court must instruct on all lesser included offenses supported by

substantial evidence. (People v. Booker, supra, 51 Cal.4th at p. 181; People v.

Breverman (1998) 19 Cal.4th 142, 154-155.) The duty applies whenever there is

evidence in the record from which a reasonable jury could conclude the defendant

is guilty of the lesser, but not the greater, offense. (People v. Verdugo (2010) 50

Cal.4th 263, 293; People v. Avila (2009) 46 Cal.4th 680, 705.) That voluntary

manslaughter is a lesser included offense of murder is undisputed. (Booker, at

p. 181; Verdugo, at p. 293; Avila, at p. 705, Breverman, at p. 154.)

Imperfect self-defense, which reduces murder to voluntary manslaughter,

arises when a defendant acts in the actual but unreasonable belief that he is in

imminent danger of death or great bodily injury. (People v. Booker, supra, 51

Cal.4th at p. 182; People v. Manriquez (2005) 37 Cal.4th 547, 581; In re Christian

S. (1994) 7 Cal.4th 768, 771.) Heat of passion, which likewise reduces murder to

voluntary manslaughter, arises when the defendant is provoked by acts that would

“render an ordinary person of average disposition ‘liable to act rashly or without

due deliberation and reflection, and from this passion rather than from judgment’ ”

(People v. Beltran (2013) 56 Cal.4th 935, 957) and kills while under the actual

influence of such a passion (People v. Enraca, supra, 53 Cal.4th at p. 759). Duff

is correct that if substantial evidence supported either theory, the trial court was

obligated to agree to instruct on voluntary manslaughter.

The difficulty for Duff is that, as the People argued below and reiterate

here, there simply was no such evidence. Duff points to the confession that was


played for the jury, in which he described Riley and Hagan pulling multiple guns

on him and then opening fire, and argues the jury could have credited that version

of events. Indeed it could have. But the problem, at least for finding an obligation

to instruct on voluntary manslaughter, is that if believed, Duff’s version could lead

only to a finding of justifiable homicide and a total acquittal on the homicide

charges. The use of lethal force in response to being shot at repeatedly is perfect

self-defense and no crime. (§ 197; People v. Randle (2005) 35 Cal.4th 987, 991.)

While Duff argues the jury could have concluded he unreasonably misperceived

the situation, the circumstances described by Duff leave no room for such shades

of gray. Either he was attacked, in which case he committed no crime, or he was

not, in which case he committed murder.

Accordingly, it was not state law error to refuse an instruction on voluntary

manslaughter. Nor was it federal constitutional error. As Duff concedes, the

constitutional requirement that capital juries be instructed on lesser included

offenses extends only to those lesser included offenses supported by substantial

evidence. (See Schad v. Arizona (1991) 501 U.S. 624, 648; Beck v. Alabama,

supra, 447 U.S. at p. 627.) Here, none were.

7. Cumulative Guilt Phase Error

Duff contends that if we do not conclude that any individual guilt phase

error mandates guilt phase reversal, the cumulative effect of the guilt phase errors

nevertheless rendered his trial unreliable. We disagree. We have identified no

errors. In the absence of error, there is nothing to cumulate.


1. Use of Prior Crimes

The People’s penalty phase case consisted principally of evidence of Duff’s

extensive history of prior violent criminal acts. (§ 190.3, factor (b).) Duff


objected on Evidence Code section 352 and unspecified state and federal

constitutional grounds but conceded that settled law permitted the People to prove

these acts. The trial court deemed Duff’s objection a continuing one and over his

objection permitted extensive evidence of past bad acts.

On appeal, relying on a panoply of out-of-state decisions, Duff asks that we

reconsider whether the Legislature’s decision to permit penalty phase

consideration of unrelated, and occasionally unadjudicated, violent acts renders

death penalty decisions unreliable in violation of the Eighth and Fourteenth

Amendments of the federal Constitution. We have repeatedly reaffirmed the

constitutionality of section 190.3, factor (b), and Duff offers no persuasive reason

to overrule these decisions. (See, e.g., People v. Tully, supra, 54 Cal.4th at p.

1029; People v. Thomas, supra, 51 Cal.4th at p. 504; People v. Booker, supra, 51

Cal.4th at pp. 187-188; People v. Taylor (2010) 48 Cal.4th 574, 651-652.)

In the alternative, Duff argues that even if section 190.3, factor (b) is not

per se unconstitutional, to permit the jury to consider together a series of unrelated

incidents from a 20-year time period that in some instances resulted in neither

charges nor convictions was unconstitutional. The objection that the incidents

involved neither charges nor convictions is a rephrasing of the objection to the

Legislature’s decision to permit consideration of unadjudicated conduct under

factor (b) and fails in light of our long-standing reaffirmation of the

constitutionality of that factor. As for the objection that the incidents were

unrelated and covered a long time frame, “[t]he purpose of section 190.3, factor

(b) ‘is to enable the jury to make an individualized assessment of the character and

history of a defendant to determine the nature of the punishment to be imposed.’ ”

(People v. Tully, supra, 54 Cal.4th at p. 1029.) If permitting the jury to consider

the presence or absence of a prior pattern of violent misfeasance is constitutional,

it surely is no less constitutional to allow the jury to consider that factor where, as


here, a defendant has compiled a two-decade history of widespread and varied

misconduct. While some acts the People relied on were far removed in time from

the double homicide, “[r]emoteness of the prior criminal conduct affects the

weight of the evidence, not its admissibility.” (People v. Tafoya, supra, 42 Cal.4th

at p. 186.)

Finally, Duff argues that admission of his extensive prior misconduct was

enormously prejudicial and thus unfairly skewed the jury’s deliberations. But

“ ‘[p]rejudice’ in the context of Evidence Code section 352 is not synonymous

with ‘damaging’: it refers to evidence that poses an intolerable risk to the fairness

of the proceedings or reliability of the outcome. [Citation.] Although the

evidence of his violent criminal activity likely was damaging to defendant, he fails

to demonstrate how it was unduly prejudicial—the inference that he was

dangerous was entirely proper. Accordingly, the trial court did not abuse its

discretion in admitting this evidence, and defendant’s constitutional rights were

not violated.” (People v. Booker, supra, 51 Cal.4th at p. 188.)

2. Exclusion of Rebuttal Victim Impact Evidence

Before the start of the penalty phase, Duff moved to be permitted to

introduce rebuttal evidence of the decedents’ character in the event the People

presented positive victim impact evidence. The trial court agreed that to the extent

testimony opened the door to rebuttal, Duff should be permitted to introduce

evidence to controvert the picture the prosecution presented of Hagan and Riley

and the impact their deaths had on others. For example, testimony that Riley’s

children were saddened by his death would, in the court’s eyes, open the door to

testimony that the children had witnessed and/or been the victims of domestic

violence at Riley’s hand.


In light of the court’s comments, and to avoid extensive rebuttal, the People

confined their victim impact evidence to testimony that (1) Riley was survived by

grandparents, a mother, a sister, and two children; (2) it had been difficult for his

children’s mother, Marie Correa, to tell them of his death; (3) Hagan was likewise

survived by family; and (4) Hagan’s best friend had fainted when she learned of

his death and had kept some of his ashes and devoted a shelf in her bedroom to

mementos of him. The People also introduced without comment a photo of Correa

with her and Riley’s two daughters. Given an offer of proof as to this abbreviated

presentation, the trial court precluded Duff from presenting evidence of Riley’s

and Hagan’s criminal backgrounds and child support delinquency histories,

Riley’s domestic violence toward Correa, and a Correa statement reflecting her

relief that Riley was dead. Duff contends this exclusion violated his right to rebut

favorable victim impact testimony.

In the course of concluding that victim impact evidence is constitutionally

admissible at the penalty phase of a capital trial, the United States Supreme Court

has recognized that a defendant necessarily may have the opportunity to cross-

examine prosecution witnesses and submit contrary relevant evidence. (Payne v.

Tennessee (1991) 501 U.S. 808, 823; see also Booth v. Maryland (1987) 482 U.S.

496, 506-507, overruled on other grounds by Payne, at p. 830; Booth, at p. 518

(dis. opn. of White, J.).) The right to present rebuttal, or “negative,” victim impact

evidence to counter evidence offered by the People in their penalty case-in-chief is

subject to the usual evidentiary constraints that proffered evidence must be

relevant and more probative than prejudicial. (Evid. Code, §§ 350, 352; People v.

Rogers (2013) 57 Cal.4th 296, 346; People v. Harris (2005) 37 Cal.4th 310, 352-

353; see Harris, at pp. 374-375 (conc. & dis. opn. of Kennard, J.) [agreeing that

proffered evidence must be relevant while disagreeing with the majority over

whether the specific excluded evidence actually was].) We review the trial court’s


decision to limit or exclude rebuttal victim impact evidence on these grounds for

abuse of discretion. (Rogers, at p. 347; see also People v. Ramos (2004) 34

Cal.4th 494, 528.)

The admissibility of evidence as rebuttal depends on the nature of the case-

in-chief evidence a defendant seeks to rebut. In People v. Boyette (2002) 29

Cal.4th 381, 444-445, for example, we upheld exclusion of evidence of the murder

victims’ poor character the defendant sought to introduce as a rejoinder to

testimony from survivors about their grief and love for the decedents. Payne

endorses the introduction of two types of impact evidence: (1) “ ‘a quick glimpse

of the life’ which a defendant ‘chose to extinguish’ ” and (2) a demonstration of

“the loss to the victim’s family and to society which has resulted from the

defendant’s homicide” (Payne v. Tennessee, supra, 501 U.S. at p. 822)—what

may be thought of as decedent impact evidence and survivor impact evidence.

The prosecution in Boyette limited itself to survivor impact evidence in a way that

left no misleading portrayal of the victim to which the defendant’s proffered

negative impact evidence might offer relevant rebuttal; evidence of the victims’

character could do nothing to rebut the genuineness of any loss felt by survivors.

(Boyette, at p. 445.)

The same is true here. The prosecution called only two impact witnesses,

Marie Correa, the mother of Riley’s daughters, and Makala Tiller, a friend of

Hagan’s. In light of the trial court’s rulings, the prosecutor omitted any originally

intended questions that might have shed light on Riley’s and Hagan’s character,

questions the trial court made clear would have permitted the defense to elicit

testimony about their criminal conduct, Riley’s domestic abuse of Correa, and the

mixed emotions Correa felt at the death of her abuser. Given the very limited

scope of the actual direct examination, it was not an abuse of discretion for the

trial court to foreclose the defense from cross-examining Correa or Tiller about


domestic violence, child support, or criminal conduct. There was no misleading

favorable testimony of Riley’s and Hagan’s roles as family men to discredit, nor

was there testimony about survivors’ reactions that painted for the jury a

misleadingly incomplete picture. (See Evid. Code, §§ 761, 773, subd. (a) [scope

of cross-examination limited by scope of direct examination]; People v. Farley

(2009) 46 Cal.4th 1053, 1109 [cross-examination permitted to disabuse jury of

misimpressions created by direct examination].)

Duff relies heavily on People v. Rogers, supra, 57 Cal.4th 296, in which the

trial court, while excluding some evidence as cumulative or unduly prejudicial,

permitted considerable defense evidence concerning the murder victim’s

character. Rogers is inapposite; there, unlike here, the prosecution introduced

extensive victim impact evidence relating not only to survivor impact but to the

decedent’s character, and the defendant was accordingly afforded an opportunity

to respond. (Id. at pp. 345-347.)

3. Prosecutorial Misconduct: Penalty Phase Closing Argument

During penalty phase closing argument, the prosecution sought to defuse

defense expert testimony that Duff had a diminished IQ by illustrating the sorts of

books he read. Defense mental health expert Dr. Albert Globus had testified on

direct that Duff read novels and the Bible; on cross-examination, the prosecutor

elicited the names of particular authors Duff read, including Stephen King, John

Grisham, Dean Koontz, and L. Ron Hubbard. During closing, the prosecutor

displayed to the jury five novels and told the jury, “All these books, not

necessarily these particular books, but are books that apparently the defendant

likes to read. Doctor Globus told us that although [Duff] has this incredibly low

IQ, he actually enjoys reading novels. He reads these. [¶] He reads—some of his

favorite authors are, I don’t know, Grisham, Dean Koontz, and Stephen King, and


I think he mentioned L. Ron Hubbard also. Books he reads, books he can digest,

books he has the mental capacity to understand. [¶] Probably some or all of you

have read some of these authors, and what does that tell us[?] Really when you

come down to it, what does it say about his IQ[?] So his IQ is 87, upper end of

low normal. You make whatever you want out of his IQ.”

During a break between the prosecutor’s and defendant’s closing argument,

Duff’s counsel was for the first time able to see what books the prosecutor had

shown the jury: Dean Koontz’s Mr. Murder (1993) and The Bad Place (1990),

John Grisham’s The Runaway Jury (1996) and The Client (1993), and Stephen

King’s The Tommyknockers (1987). Counsel moved for a mistrial, arguing that

the titles prejudiced Duff and could impermissibly sway the jury. The prosecutor

argued that he had cautioned these were not necessarily books Duff himself had

read, and offered that the court could admonish the jury again that there should be

no suggestion Duff had ever read the particular books the prosecutor showed

them. The trial court took the matter under advisement, simultaneously asking

defense counsel to mull over the prosecution’s suggested admonishment.

After a break, the court denied the motion for mistrial. Off the record,

defense counsel apparently elected to waive admonishment in lieu of an

opportunity to directly respond during closing argument, and the court made note

of the fact that at the defense’s request the five novels remained on display in the

courtroom. During closing, Duff’s counsel addressed the issue and dismissed the

display of books as a cheap gimmick: “Then he brings up some books here. And

I have to comment on them because they were sitting here for about an hour. And

first one—Dean Koontz, The Bad Place—a good choice for the type of

environment here. The Bad Place. What we found out during the break here—

during lunch—is—all of these books here didn’t come from Mr. Duff obviously—

they came from [the prosecutor’s] personal library. So he’s—these selections


have nothing to do with Mr. Duff. But they’re interesting choices by [the

prosecutor] to put them here. So we have The Bad Place. We have Mr. Murder

by Dean Koontz. We have The Runaway Jury by John Grisham. And we have

Stephen King The Tommyknockers anyway.[16] [¶] I will say this. What you hear

the doctor say was when he talked to Mr. Duff he was reading the Bible. We

don’t have the Bible here. But—I guess that that should have been placed on there

by [the prosecutor]. But he chose not to. But this is what you do—kind of bolster

your case with little bitty gimmicks here—the books, the photos, which really

don’t have much to do with anything.”

Following the death verdict, Duff moved for a new trial based, inter alia, on

the display of the five novels to the jury. The trial court denied the motion,

explaining that Duff had waived the issue by electing to respond rather than have

the jury admonished and, in any event, “the remedy that was employed was far

more effective than whatever curative instruction I would have given, and that was

essentially to embarrass [the prosecutor] in front of the jury by having to admit

that all of those books were his.”

On appeal, Duff contends that the prosecutor’s misconduct deprived him of

a fair trial and a reliable penalty determination. (U.S. Const., 8th & 14th

Amends.) The claim is forfeited. Although Duff timely objected, he thereafter

elected to forego a curative instruction in favor of highlighting the prosecutor’s

argument and using it to argue that the case for death rested on a series of

gimmicks. To preserve a claim of prosecutorial misconduct, a defendant must

seek a jury admonition or show one would have been futile. (E.g., People v.


The fifth novel, The Client, had only author John Grisham’s name on the

spine. Because the jury had not been exposed to the title, counsel at the court’s
direction did not disclose it.


Blacksher, supra, 52 Cal.4th at p. 829; People v. Ledesma, supra, 39 Cal.4th at

p. 726.) Notwithstanding Duff’s “ ‘ritual incantation’ [citation] that a jury

admonition would have made no difference, [he] identifies nothing in the record to

suggest this would have been so.” (People v. Gamache, supra, 48 Cal.4th at

p. 388.)

In any event, we find no prejudicial misconduct. “A prosecutor commits

misconduct when his or her conduct either infects the trial with such unfairness as

to render the subsequent conviction a denial of due process, or involves deceptive

or reprehensible methods employed to persuade the trier of fact.” (People v. Avila,

supra, 46 Cal.4th at p. 711.) A defendant asserting prosecutorial misconduct must

further establish a reasonable likelihood the jury construed the remarks in an

objectionable fashion. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)

The prosecutor’s choice of books to show the jury was ill-considered. To

make the point that Duff was not especially low-functioning by illustrating the

sorts of “books that apparently the defendant likes to read,” the prosecutor surely

could have found novels with titles less inflammatory and potentially prejudicial

than Mr. Murder. But the prosecutor simultaneously cautioned that these

particular books were not necessarily ones Duff had read, and defense counsel

reiterated that the chosen novels were from the prosecutor’s personal collection,

not Duff’s. The prosecutor’s remarks are neither reprehensible nor alone a due

process violation and, considering everything that was said during closing

argument, there is no reasonable likelihood the jury was deceived into believing

Duff in fact read any of the proffered books.

4. Cumulative Prejudice from Errors

Duff contends that even if we do not conclude any individual error

mandates reversal, the cumulative effect of the penalty phase errors requires


reversal of the penalty verdict. We disagree. We have identified no errors; there

is, accordingly, nothing to cumulate.

5. Constitutionality of California’s Death Penalty

Finally, Duff raises a series of challenges to the constitutionality of

California’s death penalty. We have rejected each before. As Duff offers no

compelling arguments in favor of reconsidering any of these rulings, we do so


California’s special circumstances (see § 190.2) adequately narrow the

class of murderers eligible for the death penalty. (People v. Williams (2013) 56

Cal.4th 165, 201; People v. Homick, supra, 55 Cal.4th at p. 903; People v. Tully,

supra, 54 Cal.4th at p. 1067; People v. Lightsey (2012) 54 Cal.4th 668, 731;

People v. McDowell (2012) 54 Cal.4th 395, 443; People v. Streeter (2012) 54

Cal.4th 205, 267.) While Duff contends the ballot arguments in favor of

Proposition 7, “which became the current death penalty law, reflect an intent to

expose every murderer to the death penalty, we have rejected that assertion as a

misconstruction of the ballot arguments.” (People v. Bonilla, supra, 41 Cal.4th at

p. 358; People v. Gray (2005) 37 Cal.4th 168, 237, fn. 23.)

Section 190.3, factor (a), which permits the jury to consider the

circumstances of the crime in deciding whether to impose the death penalty, does

not license the arbitrary and capricious imposition of the death penalty. (Tuilaepa

v. California (1994) 512 U.S. 967, 975-976; People v. Williams, supra, 56 Cal.4th

at p. 201; People v. Valdez (2012) 55 Cal.4th 82, 179; People v. Tully, supra, 54

Cal.4th at p. 1067; People v. Thomas (2012) 54 Cal.4th 908, 949; People v.

Lightsey, supra, 54 Cal.4th at p. 731; People v. McDowell, supra, 54 Cal.4th at

p. 443.)


Nothing in the state or federal Constitution requires that the penalty jury

(1) issue written findings, (2) unanimously agree on any particular aggravating

circumstances, (3) find true beyond a reasonable doubt any particular aggravating

circumstances, or (4) find that aggravating factors outweigh mitigating factors

beyond a reasonable doubt. (E.g., People v. Homick, supra, 55 Cal.4th at pp. 902-

903; People v. Valdez, supra, 55 Cal.4th at pp. 179-180; People v. Gamache,

supra, 48 Cal.4th at pp. 406-407; People v. Loker (2008) 44 Cal.4th 691, 755.)

Duff argues we should reconsider these conclusions in light of Apprendi v. New

Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v.

Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S.

270, cases which impose procedural constraints on fact finding in criminal trials,

but we have repeatedly explained that this argument rests on a misconception of

the nature of California’s capital sentencing scheme. “[T]he ultimate

determination of the appropriateness of the penalty and the subordinate

determination of the balance of evidence of aggravation and mitigation do not

entail the finding of facts that can increase the punishment for murder of the first

degree beyond the maximum otherwise prescribed. Moreover, those

determinations do not amount to the finding of facts, but rather constitute a single

fundamentally normative assessment [citations] that is outside the scope of”

Apprendi and its progeny. (People v. Griffin (2004) 33 Cal.4th 536, 595; accord,

People v. Lightsey, supra, 54 Cal.4th at p. 731; People v. McDowell, supra, 54

Cal.4th at p. 443; People v. Jones, supra, 54 Cal.4th at p. 86; People v. Taylor,

supra, 47 Cal.4th at p. 899; Loker, at p. 755.)

The inclusion of the adjectives “extreme” and “substantial” in the list of

mitigating factors (§ 190.3, factors (d) & (g)) does not impermissibly constrict

consideration of mitigating evidence and is consistent with the state and federal

Constitutions. (People v. Valdez, supra, 55 Cal.4th at p. 180; People v. Tully,


supra, 54 Cal.4th at pp. 1068-1069; People v. Thomas, supra, 54 Cal.4th at p. 949;

People v. Lightsey, supra, 54 Cal.4th at pp. 731-732; People v. McDowell, supra,

54 Cal.4th at p. 444; People v. Hartsch (2010) 49 Cal.4th 472, 516.) Nor was the

trial court constitutionally required to instruct the jury that section 190.3’s

mitigating factors could be considered only as mitigating factors and that the

absence of evidence supporting any one of them should not be viewed as an

aggravating factor. (E.g., Lightsey, at p. 731; People v. Jones, supra, 54 Cal.4th at

p. 87; People v. Gamache, supra, 48 Cal.4th at p. 406.)

Neither the state nor the federal Constitution requires intercase

proportionality review, also known as comparative proportionality review. (E.g.,

People v. Homick, supra, 55 Cal.4th at p. 903; People v. Valdez, supra, 55 Cal.4th

at p. 180; People v. Tully, supra, 54 Cal.4th at p. 1068; People v. Thomas, supra,

54 Cal.4th at p. 950; People v. Lightsey, supra, 54 Cal.4th at p. 732; People v.

McDowell, supra, 54 Cal.4th at p. 444.)

Consideration by the jury of unadjudicated criminal conduct at the penalty

phase does not violate the state or federal Constitution. (E.g., People v. Tully,

supra, 54 Cal.4th at p. 1068; People v. Thomas, supra, 54 Cal.4th at p. 949;

People v. Streeter, supra, 54 Cal.4th at p. 268; People v. Loker, supra, 44 Cal.4th

at p. 756.) Nor do Apprendi v. New Jersey, supra, 530 U.S. 466 and its progeny

require the jury to unanimously agree beyond a reasonable doubt on any prior

criminal conduct before considering it; as previously discussed, these decisions are

inapplicable to California’s capital sentencing scheme. (People v. Bonilla, supra,

41 Cal.4th at p. 359; People v. Griffin, supra, 33 Cal.4th at p. 595; People v. Snow

(2003) 30 Cal.4th 43, 126, fn. 32.)

The equal protection clause does not require California to include in its

capital sentencing scheme every procedural protection provided noncapital

defendants. (People v. Valdez, supra, 55 Cal.4th at p. 180; People v. Tully, supra,


54 Cal.4th at p. 1069; People v. Thomas, supra, 54 Cal.4th at p. 949; People v.

Lightsey, supra, 54 Cal.4th at p. 732; People v. Loker, supra, 44 Cal.4th at p. 756;

People v. Manriquez, supra, 37 Cal.4th at p. 590.)

Duff’s “argument that the use of capital punishment ‘as regular punishment

for substantial numbers of crimes’ violates international norms of human decency

and hence the Eighth Amendment to the United States Constitution fails, at the

outset, because California does not employ capital punishment in such a manner.

The death penalty is available only for the crime of first degree murder, and only

when a special circumstance is found true; furthermore, administration of the

penalty is governed by constitutional and statutory provisions different from those

applying to ‘regular punishment’ for felonies. (E.g., Cal. Const., art. VI, § 11;

§§ 190.1-190.9, 1239, subd. (b).)” (People v. Demetrulias (2006) 39 Cal.4th 1,

43-44; accord, People v. Homick, supra, 55 Cal.4th at p. 904; People v. Tully,

supra, 54 Cal.4th at p. 1070; People v. Thomas, supra, 54 Cal.4th at p. 950;

People v. Lightsey, supra, 54 Cal.4th at p. 732.)

Finally, Duff’s sentence is not so disproportionate to his conduct, the

double murders of a virtual stranger and a second man over a possible $100 debt,

as to shock the conscience, offend fundamental notions of human dignity, and

violate the Eighth and Fourteenth Amendments. (See People v. Rountree, supra,

56 Cal.4th at pp. 860-862; People v. Loker, supra, 44 Cal.4th at p. 756.)

We thus adhere to our conclusion that, whether considered individually or

collectively, the aspects of California’s death penalty Duff challenges do not

render it unconstitutional.



The trial court’s judgment is affirmed in its entirety.




* Presiding Justice of the Court of Appeal, Fourth Appellate District, Division
One, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the
California Constitution.



I concur in the majority opinion, except for its analysis concerning the

exclusion of defendant’s rebuttal victim impact evidence. (Maj. opn., ante, at

pp. 42-45.) On that issue, I agree with the majority that the trial court did not err

in excluding the evidence defendant offered to rebut the prosecution’s victim

impact evidence, a conclusion that is consistent with the views I expressed in my

concurring and dissenting opinion in People v. Harris (2005) 37 Cal.4th 319, 372-

376. Defendant here did not seek to introduce the evidence in question as

evidence pertaining to the circumstances of the crime under Penal Code section

190.3’s subdivision (a), and it was not relevant to rebut the prosecution’s limited

victim impact evidence. (People v. Harris, supra, 37 Cal.4th at pp. 372-376

[conc. & dis. opn. of Kennard, J.].)


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

Name of Opinion People v. Duff

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: January 30, 2014

County: Sacramento
Judge: Thomas M. Cecil



Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Harry Joseph Colombo and John A.
Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jonathan P. Milberg
225 South Lake Avenue, Suite 300
Pasadena, CA 91101
(626) 432-5427

John A. Bachman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 322-5221

Document Outline

  • I. Factual and Procedural Background
    • A. Guilt Phase Trial
      • 1. Prosecution Evidence
      • 2. Defense Evidence
    • B. Penalty Phase Trial
      • 1. Prosecution Evidence
      • 2. Defense Evidence
    • C. Procedural History
  • II. Discussion
    • A. Jury Selection Issues
      • 1. Excusals Pursuant to Stipulation
      • 2. Excusal for Cause: Witherspoon-Witt
      • 3. Wheeler-Batson Motion
        • a. Legal Principles
        • b. Prospective Juror T.T.
        • c. Prospective Juror L.T.
        • d. Prospective Juror T.M.
    • B. Guilt Phase Issues
      • 1. Disposal of the Car in Which the Victims Were Shot
      • 2. Introduction of Duff
Opinion Information
Date:Docket Number:
Thu, 01/30/2014S105097