This automatic appeal follows from defendant Ennis Reed’s 1999
conviction and death sentence for the murders of Amarilis Vasquez and Paul
Moreland. Reed contends that several errors occurred during the guilt and penalty
phases of his trial. After carefully considering defendant’s claims, we find that
they do not merit reversal of the guilt or penalty verdicts. So we affirm the
judgment in its entirety.
Defendant Ennis Reed was charged in an amended information with two
counts of murder (Penal Code § 187, subd. (a)),1 two counts of attempted murder
(§§ 667/187(a)), the special circumstance of multiple murder (§ 190.2, subd.
(a)(3)), and various enhancements. The charges arose out of two separate
incidents, but were consolidated in a single trial.
All subsequent statutory citations are to the Penal Code unless otherwise
SEE DISSENTING OPINIONS
A. Guilt Phase
1. The Vasquez Murder
At around 8:00 p.m. on September 24, 1996, Carlos Mendez and his wife
Amarilis Vasquez took a meal break from their jobs at a plastics factory. The
couple headed to Tacos El Unico, a Mexican fast food restaurant on Long Beach
Boulevard in the City of Compton. Mendez and Vasquez parked in the
restaurant’s lot and ordered food to go. After they got back into their pickup
truck, the couple noticed a man walking toward the truck with a large pistol.
Mendez had never seen the man before. As Mendez started the truck, the man
started shooting at them from a distance of roughly 20 feet. Vasquez — sitting in
the passenger seat — was hit first, in the head. Mendez was then shot in the right
cheek. He got out of the truck and started running, but was hit again, this time in
the left thigh. Mendez fled about 15 feet from the truck before realizing that his
wife was still inside. By the time Mendez ran back to the passenger side of the
truck, the man had disappeared. Vasquez died from the gunshot wound to her
head, while Mendez survived.
Officer James Lewis of the Compton Police Department was one of the first
law enforcement officers to arrive on the scene. Officer Lewis interviewed
Mendez, who was clearly “very, very upset.” Mendez described the shooter as a
black male with a black jacket. Later that evening, Detective Michael Paiz of the
Compton Police Department interviewed Mendez at the hospital. Mendez
described the shooter as a black male “about 5’8” to 5’11” in height, 20 to 25
years in age, clean shaven, short black hair, wearing a black jacket and black
pants.” At trial, the parties stipulated that Officer Peters of the Compton Police
Department would have testified that, on the day of the incident, Mendez
described the shooter as “a male black adult, 25 years old, wearing black pants and
a black jacket, clean shaven, with short hair, 5’11”, 150 to 180 pounds, medium
In January of 1997, Detective Paiz showed Mendez a six-photo array that
included a photograph of defendant Reed. “[R]ight away,” Mendez picked the
photo of Reed. In May of 1998, Mendez identified Reed as the shooter at a
preliminary hearing that Reed attended. About two months later — on July 14,
1998 — Mendez attended a live lineup at the county jail.2 Mendez quickly
selected Reed because his face “look[ed] like the same as in the photo.” Mendez
also identified Reed in court during the trial.
2. The Moreland Murder
On November 22, 1996, Roy Fradiue was hanging out with his friend Paul
Moreland at Fradiue’s uncle’s house. The two started drinking sometime that
evening — or possibly earlier — and smoked marijuana as well. Moreland died
with phencyclidine (PCP) and cocaine in his system; a deputy medical examiner
opined he must have ingested the cocaine within hours of his death.
At around 11:00 p.m., Fradiue and Moreland left the house to walk to a
store on Long Beach Boulevard in the City of Compton. As the two were
walking, Fradiue noticed a man standing with several “dudes” in the yard outside
of a duplex on Glencoe Avenue. Fradiue had never seen the man before. He
noticed that the man was holding “some type of rifle” with the barrel resting on his
shoulder, pointing backward. The man said something to Moreland, but Fradiue
could not understand what. Once Fradiue and Moreland passed the duplex,
Fradiue heard a shot. He did not see the man fire the rifle but assumed that the
man fired into the air because “it didn’t hit nothing.” Then, the man started firing
It was Reed who requested the live lineup after the preliminary hearing.
at Fradiue and Moreland. Fradiue headed south on Temple Avenue, while
Moreland headed north. The man fired once at Fradiue, but the shot hit a pole
instead.3 Fradiue kept running and, a few minutes later, he heard “three or four
more shots.” Roland Darby was at his house near the intersection of Glencoe and
Temple at the time of the shooting and recalled hearing a series of shots, a pause,4
and then another series of shots. A few blocks away, Fradiue ran into another
friend, who drove him back to his uncle’s house.
Officer George Betor of the Compton Police Department was the first
officer to arrive on the scene. He found Moreland’s body at the corner of Glencoe
and Temple avenues. Moreland had been shot nine times. Officer Betor collected
three shell casings and bullet fragments from the area surrounding Moreland’s
The next night, Officer Betor and two colleagues chased a man named
Chico McLaine — a suspect in an unrelated matter — into a house near the scene
of Moreland’s murder. The officers encountered an unidentified man in the house
but did not arrest him. The officers also found an SKS rifle and magazine, both of
which Officer Betor seized because they fired the same caliber of bullet as the
shell casings that the officer had found the night before. A forensic expert
identified two of the three casings found near Moreland’s body as having been
fired by the SKS rifle. The third shell casing had been “worked through” the
weapon but not fired. Tests were inconclusive, however, as to whether the bullet
fragments came from the SKS rifle. Law enforcement also could not obtain any
Detective Paiz visited the scene during trial and found a rusty bullet hole in
a “No Parking” sign on Temple Street. He testified that the bullet that created the
hole was traveling in a “southwesterly direction.”
At trial, Darby estimated the length of the pause as “about five to ten
seconds” but was confronted with an interview report that indicated that he told an
officer on the night of the incident that the pause was “two to three minutes.”
fingerprints from the weapon or magazine. When shown the gun during his trial
testimony, Fradiue stated that it “look[ed] like” the weapon he saw on November
Officer Marvin Pollard of the Compton Police Department testified that —
earlier in the same night as officers pursued McLaine –– he had encountered Reed
and filled out a field interview card describing their interaction. The card
indicated that Officer Pollard encountered Reed near the intersection of Glencoe
and Temple avenues. Officer Pollard stated that other officers were present, but
that they did not enter any building during the encounter. The interview card
included a description of Reed’s tattoo, which Officer Pollard relied on to identify
the defendant in court. The card also described Reed as weighing 122 pounds,
although Officer Pollard could not recall if the information came from Reed
himself or his state ID card. In the “Persons with Subject” area of the interview
card, Officer Pollard wrote “I. McLaine.”
Fradiue never contacted the police after escaping from the shooting that
killed Moreland. In April 1997 — roughly six months after Moreland’s death —
Officer Paiz contacted Fradiue and showed him a six-photo array that included a
photo of Reed. Fradiue testified that he selected Reed’s photo after studying the
array for “10 minutes,” although Officer Paiz recalled that the identification took
roughly “10 seconds.” Fradiue thought that the shooter had “real short” hair, and
admitted that Reed was the only subject in the lineup with “real short hair.”
Fradiue also identified Reed at the same post-preliminary hearing lineup that
Mendez attended, as well as at trial.
3. Defense Evidence
Reed called a single witness, Foster Slaughter. Slaughter was sitting
outside the Zodiac motorcycle club at the time of the Vasquez murder. Slaughter
was about 50 feet from Tacos El Unico when someone started shooting at Mendez
and Vasquez. Slaughter saw the assailant only from the side but described him as
a black male with long hair and a “big long coat.” He estimated that the assailant
weighed 190 to 200 pounds, although he admitted that the coat could have given
him that impression. Slaughter testified that Reed did not “look like the one was
On rebuttal, the prosecution called Officer Kenneth Roller of the Compton
Police Department. Officer Roller interviewed Slaughter immediately after the
incident. Officer Roller’s report indicated that Slaughter had described the
assailant to him as a black male adult “wearing a three-quarter length black jacket
and dark jean pants.” The officer testified that he would have included additional
information in the description had Slaughter provided any.
The jury convicted Reed of both counts of murder (in the first degree) and
both counts of attempted murder. The jury also found true the special
circumstance of multiple murder.
B. Penalty Phase
The first penalty phase trial ended in a hung jury, with the jury voting seven
to five in favor of life without parole. The penalty phase retrial commenced on
July 30, 1999. The parties stipulated that Reed had been convicted of attempted
murder on September 12, 1992, “on an aiding and abetting theory . . . wherein he
was charged as being the driver in a drive-by shooting, not the shooter.” A parole
officer testified that Reed was released from prison on August 3, 1996, and
reported to the parole office two days later. The prosecution also introduced the
following evidence specific to the two murders.
1. The Vasquez Murder
Carlos Mendez recounted what happened on the day of his wife’s murder.
He also testified about the effect of her death on him. Defense counsel cross-
examined Mendez about the circumstances of his identification of Reed as the
shooter. Officer Robert Childs of the Compton Police Department arrived on the
scene and collected nine shell casings and two expended bullets from the area
surrounding Mendez’s truck. A forensic pathologist testified about the cause of
2. The Moreland Murder
Roland Darby heard gunshots on the night of Moreland’s murder. He also
looked out the window and saw Moreland’s dead body. Roy Fradiue recounted
the circumstances of Moreland’s murder. Defense counsel cross-examined
Fradiue on various factors relating to the strength of his identification of Reed as
the shooter: Fradiue had consumed alcohol and marijuana, it was dark out, and he
had never seen the shooter before. Detective Paiz described the rusty bullet hole
in the sign on Temple Street. Floyd Moreland — Paul’s father — testified about
his son’s life and that he missed Paul “terribly.” Officer Betor described the scene
of Moreland’s murder and recounted finding the SKS rifle in the nearby house. A
forensic pathologist testified about the cause of Moreland’s death.
3. Defense Case
Joe Galindo was at his girlfriend’s house near Tacos El Unico on the
evening of Vasquez’s murder.5 He was on her porch when he heard three
gunshots. He then saw a black, “somewhat stocky” man run past his girlfriend’s
house at a distance of roughly 50 feet. Galindo did not see the man’s face but did
not believe that Reed was the man. Galindo — who was 6’1” and weighed about
200 pounds — testified that the man he saw “must have been at least my height or
Galindo could not be located to testify during the guilt phase, and the trial
court denied defense counsel’s request for a continuance to allow the defense to
find him. (See, infra, Part II.A.2.
a little bit taller.” Defense counsel then read Slaughter’s testimony from the guilt
phase to the jury.
Dolores Sheen was the executive director and principal of the middle
school Reed attended for seventh grade. Reed displayed poor literacy and
performed at a third or fourth grade level. Reed was initially interested in school,
but his interest waned over time. Often tardy or absent, Reed began to exhibit
behavioral disorders. Sheen attempted to involve Reed’s mother in his education,
but his mother did not provide any “visible support system.” The school did not
promote Reed to eighth grade.
Dolores Churchill was Reed’s great-aunt. She testified that Reed’s father
and mother separated when Reed was in kindergarten. Reed had minimal contact
with his father and his relationship with his mother was “strained.” Reed always
manifested learning disabilities and stopped going to school after seventh grade.
Reed was always considerate, however, and tended toward “quietness” and
“withdrawing, rather than an explosion of temper.”
On rebuttal, Officer Lewis described his interview of Mendez immediately
after the shooting. Mendez then recounted how he had selected Reed in both a
photographic and live lineup. Officer Childs testified that, when he interviewed
Galindo on the night of Vasquez’s murder, Galindo told him only that the shooter
was a “black male adult in a plaid shirt.”
On August 4, 1999, the jury recommended imposition of the death penalty.
On September 29, the trial court denied Reed’s motion for a new trial and
sentenced him to death.
A. Jury Selection and Pretrial Claims
1. Batson/Wheeler Motion
Reed is African American. He contends the prosecutor violated his state
and federal constitutional rights to equal protection and a jury drawn from a fair
cross-section of the community by peremptorily excusing five black prospective
jurors at the guilt phase. (See Batson v. Kentucky (1986) 476 U.S. 79, 89
(Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We find
a. Factual Background
The trial court began voir dire on May 25, 1999. After exclusions for
hardship, the jury venire consisted of 123 people, including 42 black jurors, 49
white jurors, 16 Hispanic jurors, 14 Asian jurors, one “Middle East[ern]” juror,
and one juror whose race we are unable to determine. Once the parties excused
certain jurors for cause or by stipulation, 82 prospective jurors remained. The first
18 jurors to enter the jury box included nine white jurors, six black jurors, two
Hispanic jurors, and one Asian juror. Following a brief round of voir dire, the
prosecution exercised peremptory strikes against Corrine T. (a white woman), Bert
A. (a black man), Billie L. (a black woman), Betzaida C. (a Hispanic woman), and
Janice C. (a black woman). During a second round of peremptory strikes, the
prosecutor excused Bruno B. (a Hispanic man), Nickey W. (a black man), and
Mary C. (a black woman).
After the prosecutor struck Mary C., defense counsel raised a
Batson/Wheeler objection. Defense counsel noted that the prosecution had used
five of his eight strikes up to that point on black prospective jurors. Without
hearing from the prosecution, the trial court overruled the objection, stating “there
has not been a showing of a strong likelihood” that the prosecutor’s challenges
were racially motivated.
Before the jury was sworn, the prosecutor struck five additional jurors, one
of whom was a black woman. The prosecutor also exercised three peremptory
strikes during the selection of alternate jurors, one of which removed a black
woman from the panel. The resulting guilt phase jury initially consisted of three
black jurors, five white jurors, one Hispanic juror, two Asian jurors, and one
“Middle East[ern]” juror. During the trial, one black juror was excused for
hardship and replaced by a Hispanic alternate.
Both the United States and California Constitutions prohibit discriminatory
use of peremptory strikes. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22
Cal.3d at pp. 276-277; People v. Gutierrez (2017) 2 Cal.5th 1150, 1157-1159.) To
assess whether such prohibited discrimination has occurred, our inquiry under
Batson/Wheeler follows three distinct, familiar steps. First, the party objecting to
the strike must establish a prima facie case by showing facts sufficient to support
an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S.
162, 168 (Johnson).) Second, if the objector succeeds in establishing a prima facie
case, the burden shifts to the proponent of the strike to offer a permissible, non-
biased justification for the strike.6 (Ibid.) Finally, if the proponent does offer a
non-biased justification, the trial court must decide whether that justification is
In cases where the trial court has concluded no prima facie case has been
established, it is the better practice to “offer prosecutors the opportunity to state
their reasons so as to enable creation of an adequate record for an appellate court,
should it disagree with the first-stage ruling, to determine whether any
constitutional violation has been established.” (People v. Scott (2015) 61 Cal.4th
363, 388 (Scott).
genuine or instead whether impermissible discrimination in fact motivated the
The trial court denied Reed’s Batson/Wheeler motion at the first step of the
inquiry, finding Reed had not established a prima facie case. But it did so at a
time when California courts applied an unduly stringent standard for Batson
claims at step one. (See People v. Carasi (2008) 44 Cal.4th 1263, 1293.) In
Johnson, the United States Supreme Court rejected our previous standard —
requiring that it be “ ‘more likely than not’ ” that purposeful discrimination
occurred — as inconsistent with federal constitutional protections, and instead
favored a standard turning on whether the opponent of the strike has “ ‘produc[ed]
evidence sufficient to permit the trial judge to draw an inference’ ” of
discrimination. (Carasi, 44 Cal.4th at p. 1293, quoting Johnson, 545 U.S. at p.
170.) As the People concede, the trial court here denied the motion using the
“more likely than not” standard that Johnson disapproved. In these circumstances,
we conduct our own independent review of the record and apply the Johnson
standard to determine whether the record supports an inference that the prosecutor
excused a juror on a discriminatory basis. (People v. Bonilla (2007) 41 Cal.4th
313, 342 (Bonilla).
Although we examine the entire record when conducting our review,
certain types of evidence are especially relevant. These include whether a party
has struck most or all of the members of the venire from an identified group,
whether a party has used a disproportionate number of strikes against members of
that group, whether the party has engaged those prospective jurors in only
desultory voir dire, whether the defendant is a member of that group, and whether
the victim is a member of the group to which a majority of remaining jurors
belong. (Scott, supra, 61 Cal.4th at p. 384.) We may also consider
nondiscriminatory reasons for the peremptory strike that “necessarily dispel any
inference of bias,” so long as those reasons are apparent from and clearly
established in the record. (Ibid.
What Reed relies on primarily to advance his challenge is evidence of
disproportionate strikes against black jurors. The prosecutor used five of his first
eight peremptory strikes (roughly 63 percent) on black jurors, even though such
jurors constituted only 34 percent of the venire. Considered in the context of the
entire jury selection process, however, these initial strikes do not support an
inference of discriminatory intent. (See People v. Garcia (2011) 52 Cal.4th 706,
748 [considering ratio of stricken challenged jurors in context of overall strikes,
including those made after Batson/Wheeler motion].) The prosecutor’s next four
strikes all targeted non-black jurors, and taken together, his strikes did not target
black jurors in a particularly disproportionate manner. The prosecutor exercised
13 strikes during the selection of regular jurors, and three more while selecting
alternates. Six of the prosecutor’s thirteen regular juror strikes (46 percent) — and
seven of sixteen overall (44 percent) — targeted black jurors. Although these
figures exceed the 34 percent ratio of black jurors in the venire, they do so only
barely. Viewed in its overall context, the pattern of strikes by itself does not
suggest the inference of discrimination that might otherwise be drawn from the
prosecutor’s initial strikes.
What is more, the prosecutor first signaled his acceptance of a jury at a time
when it contained two black jurors, and three black jurors ultimately sat on the
jury. (See People v. Clark (2011) 52 Cal.4th 856, 906 [noting that prosecutor’s
repeated passing of “an African-American woman who ultimately served as a
juror in the guilt phase” helped dispel any inference of discriminatory motive].) It
is true that the prosecutor used his last strike on a black woman before the trial
court empaneled the jury. But another black juror replaced her, and the prosecutor
immediately accepted the panel. While acceptance of one or more black jurors by
the prosecution does not necessarily settle all questions about how the prosecution
used its peremptory challenges, these facts nonetheless help lessen the strength of
any inference of discrimination that the pattern of the prosecutor’s strikes might
otherwise imply. (See People v. Hartsch (2010) 49 Cal.4th 472, 487 [“The
prosecutor’s acceptance of a panel including these African-American prospective
jurors, while not conclusive, was ‘an indication of the prosecutor’s good faith in
exercising his peremptories . . . .’ ”].) Most notably, the prosecutor’s decision to
strike one black juror while accepting another who replaced her suggests that non-
race related differences between the jurors, rather than race, explain the
prosecutor’s actions. (See ibid.
Reed also argues that the prosecutor struck the challenged jurors without
asking them voir dire questions. Yet the prosecutor did in fact engage Billie L. in
a lengthy colloquy regarding her views on the death penalty. More important, the
attorneys received the jurors’ questionnaires prior to commencement of voir dire.
What we have held is that under these circumstances, an attorney’s failure to
engage jurors in voir dire is less significant than when the attorneys know nothing
about the jurors prior to striking them. (See People v. Taylor (2010) 48 Cal.4th
574, 615 (Taylor).) Accordingly, we accord no great weight to the prosecutor’s
limited voir dire.
We find further evidence dispelling any inference of bias in the struck
jurors’ questionnaires and answers during voir dire. (See People v. Sanchez
(2016) 63 Cal.4th 411, 435-439 (Sanchez) [considering nondiscriminatory reasons
for peremptory challenges that are apparent from and “clearly established” in the
record].) While we are not relying here solely on hypothesized prosecutor reasons
to strike a juror in assessing a Batson/Wheeler motion, a record devoid of any
support for race-neutral reasons justifying prosecutor strikes would raise further
concerns. In this case, however, the record is not devoid of support for race-
neutral reasons for excusing each of the jurors in question. Bert A. wrote that his
brother had a negative experience with law enforcement when he was convicted of
robbery in 1984. We have previously recognized a relative’s negative experiences
with law enforcement as a race-neutral hypothetical reason for a strike that dispels
any inference of discriminatory intent. (See People v. Harris (2013) 57 Cal.4th
804, 836 (Harris).) Moreover, Bert A. reported that he had previously served on a
criminal jury that hung. We have also recognized such a disclosure as the sort that
sufficiently dispels any inference of discrimination. (See People v. Farnam
(2002) 28 Cal.4th 107, 138 (Farnam).
Similarly, both Janice C. and Mary C. reported that their spouses had prior
contact with law enforcement. Janice C. wrote that her spouse had been convicted
of a drug offense in 1977, while Mary C. stated that her husband had been arrested
or charged with a crime 10 years prior to Reed’s trial. (See People v. Booker
(2011) 51 Cal.4th 141, 167 [“A negative experience with the criminal justice
system is a valid neutral reason for a peremptory challenge”]; Harris, supra, 57
Cal.4th at p. 836.
Billie L. stated in her questionnaire that she was “[s]trongly against” the
death penalty and, during voir dire, she repeated this view, commenting that “I
believe that maybe we should just not have a death penalty.” These statements
were later subject to a measure of equivocation, given her statement that “Each
case is unique. The death penalty must be considered very carefully.” Even so,
the prosecutor could have had a reasonable preference to strike Billie L. because
of the risk –– in light of her earlier statements –– that she would in fact refuse to
impose the death penalty. We have previously held that the declaration of
opposition to the death penalty, even when combined with some subsequent
equivocation, reasonably dispels any inference of discrimination. (See Scott,
supra, 61 Cal.4th at pp. 384-385; People v. Panah (2005) 35 Cal.4th 395, 440-
Finally, Nickey W. offered answers on his questionnaire that were
sufficiently conflicting to raise the possibility for reasonable concern by the
prosecutor. In response to a question about whether he understood and agreed that
the fact defendant had been charged with certain crimes was not evidence of his
guilt, Nickey W. wrote “no,” but then added “you are innocent until proven
[guilty].” Later, Nickey W. rejected the proposition that a defendant is not
required to prove that he is innocent, and elaborated that “the defendant has to
prove his [innocence].” The concerns raised by Nickey W.’s response to critical
aspects of the questionnaire provide a strong reason for the prosecutor to excuse
him. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 470.
Reed also contends that a comparison between the jurors struck by the
prosecution and the non-black jurors that ultimately served on the jury proves
these rationales could not have motivated the prosecutor’s strikes. In particular,
Reed suggests that, if the rationale for the prosecutor’s strikes against black jurors
Bert A., Janice C., and Mary C. was grounded in their relatives’ arrests or criminal
convictions, the prosecutor should have also challenged non-black jurors with
relatives who had comparable experience with the criminal justice system. We
have often declined to undertake comparative juror analysis at step one of the
Batson/Wheeler framework. (See, e.g., Sanchez, supra, 63 Cal.4th 411 at p. 439;
Taylor, supra, 48 Cal.4th at pp. 616-617; Bonilla, supra, 41 Cal.4th 313 at p. 350.
Nonetheless, such analysis can be helpful in certain circumstances to assess
whether a defendant established a prima facie case of bias. (See Scott, supra, 61
Cal.4th at p. 390; Harris, supra, 57 Cal.4th at 874-876 (conc. opn. of Liu, J.).
Reed’s comparisons in this case, however, are unavailing.
It is true that Bert A., Janice C., and Mary C. have family members who
were arrested or convicted of crimes. Nonetheless, the prosecution had additional,
independent reasons for striking these potential jurors aside from the fact that their
relatives had a criminal history. For one, Bert A. indicated that he previously
served on a criminal jury involving a murder charge that resulted in a hung jury.
(See Farnam, supra, 28 Cal.4th at p. 138 [concluding that sitting on a hung jury
“constitutes a legitimate concern for the prosecution”].) Mary C.’s questionnaire
answers, meanwhile, were frequently incomplete and, in particular, she failed to
answer critical questions related to her husband’s criminal history.
There is a further distinction in whether the relevant family members had
been convicted of their respective crimes. The relatives of Bert A. and Janice C.
had indeed been convicted. Bert A.’s brother was convicted and served time for
burglary, and Janice C.’s husband was convicted on drug charges. Although Reed
compares Bert A. and Janice C. with jurors whose family members had been
arrested, no evidence suggests these family members were convicted or served
time in prison. The prosecutor could have readily concluded that a criminal
conviction, or time spent in prison, was more significant than simply having a
family member arrested. (See People v. Lancaster (2007) 41 Cal.4th 50, 78
[“[N]o inference of group bias appears from the prosecutor’s decision to challenge
a prospective juror whose family members were serving or had served prison
Accordingly, Reed fails to demonstrate that the totality of relevant facts
give rise to an inference of discriminatory intent for the prosecutor’s strikes. (See
also People v. Gray (2005) 37 Cal.4th 168, 189 [a prosecutor may “excuse a
prospective juror for a variety of reasons, finding no single characteristic
2. Motion for a Continuance
On the first day of trial, Reed motioned to continue proceedings so he could
secure the presence of Joe Galindo as a defense witness. The trial court denied the
motion. Reed contends that the trial court’s decision was an abuse of discretion,
and that it violated his federal constitutional rights under the Sixth Amendment
and his right to due process under the Fourteenth Amendment. We reject the
During the first morning of trial, Reed’s attorney made an oral motion for a
continuance to secure the presence of Joe Galindo. Reed’s attorney stated only
that Galindo was a member of the National Guard who had been deployed,
“perhaps to Yugoslavia.” The prosecutor then objected to the continuance. He
explained to the trial court that Galindo did not witness the shooting of Vasquez
and Mendez but did see someone running away from the location of the shooting
shortly after it occurred. He further explained that Galindo could not identify the
fleeing individual but could offer a description of him that is “somewhat
consistent, somewhat inconsistent with the way the defendant looks.” Reed’s
attorney then stated that the prosecutor’s description of Galindo’s anticipated
testimony was “fair and accurate.” The trial court denied the motion without
hearing further argument. After the penalty phase retrial — at which Galindo
testified — Reed moved for a new trial based on the earlier denial of his motion
for a continuance. The trial court denied the motion.
A criminal trial may be continued only upon a showing of good cause.
Trial courts have wide discretion to determine whether such cause exists. (§ 1050,
subd. (e); People v. Doolin (2009) 45 Cal.4th 390, 450.) In making that
determination, courts consider whether the moving party has acted diligently, the
anticipated benefits of the continuance, the burden that the continuance would
impose on witnesses, jurors, and the court, and whether a continuance will
accomplish or hinder substantial justice. (Doolin, at p. 450.) On appeal, we
review all circumstances relevant to the motion to determine whether the trial
court’s decision was so arbitrary as to deprive the movant of due process. (Ibid.
We find no abuse of discretion here. Reed’s attorney requested a
continuance of unknown duration, and suggested to the trial court that Galindo
might not be available to testify for quite some time.7 Indeed the trial court was
understandably concerned that granting a continuance would delay the trial
indefinitely. Under these circumstances, the trial court did not act arbitrarily in
believing that any continuance would impose a significant burden on everyone
involved in the trial, not least the prospective jurors who had filled out lengthy
juror questionnaires and arrived at court that day for the beginning of juror
Nor did Reed’s attorney suggest Galindo’s testimony was particularly
beneficial to the defense. In fact, defense counsel expressly agreed with the
prosecutor’s contention that the anticipated testimony would only be partially
exculpatory, in that Galindo’s description of the individual would be “somewhat
consistent, somewhat inconsistent” with Reed. Reed argues that Galindo’s
testimony at the penalty phase retrial was more helpful to the defense than
suggested during the request for a continuance. While we consider all
circumstances relevant to a ruling on a motion for a continuance, we focus
particular attention on the reasons actually given for the request. (See People v.
Mungia (2008) 44 Cal.4th 1101, 1118 [“ ‘There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process.
We also note that defense counsel did not mention his efforts to secure
witness Galindo’s attendance until after the motion for a new trial. Although it
appears that counsel did go to some lengths in attempting to serve the witness, he
did not relay this information at the time the continuance was sought.
The answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at the time the request
is denied.’ ”], quoting Ungar v. Sarafite (1964) 376 U.S. 575, 589, italics added.
And the reasons presented to the trial judge were not particularly compelling.
Reed also cites numerous cases where reviewing courts have found an
abuse of discretion to have occurred after a trial court denied a continuance to
secure a witness. Yet none of those cases present the circumstances here: a
request for a continuance that would not only have been of indefinite duration but
also of limited apparent utility. (See Jennings v. Superior Court (1967) 66 Cal.2d
867, 871 [request for four day continuance]; People v. Buckey (1972) 23
Cal.App.3d 740, 744 [request for continuance until “next court day” for “highly
necessary” testimony]; Bennett v. Scroggy (1986) 793 F.2d 772, 775 [witness
“probably could have been located overnight”]; U.S. v. Flynt (1984) 756 F.2d
1352, 1360 [continuance “would not have resulted in any cognizable
inconvenience to the court or the government”]; Hicks v. Wainwright (1981) 633
F.2d 1146, 1149-1150 [witness available to give “critical” testimony “that evening
or at any time thereafter”]; U.S. v. Powell (1978) 587 F.2d 443, 446 [request for
four day continuance]; Johnson v. Johnson (1974) 375 F. Supp. 872, 876
[witnesses could have appeared “the next day”].
So we find no abuse of discretion.8
Although Reed’s briefing is unclear, he appears to challenge the trial
court’s denial of his motion for a new trial based on the denial of the motion for a
continuance. Because we hold that the denial of Reed’s motion for a continuance
did not deny him a fair trial, we also reject any challenge to the trial court’s ruling
on the motion for a new trial. Our rejection of the merits of Reed’s argument
regarding the continuance also suffices to reject any constitutional “ ‘gloss’ ” on
that claim. (See People v. Wallace (2008) 44 Cal.4th 1032, 1050 fn. 4.
B. Guilt Phase Claims
1. Sufficiency of the Evidence for the Murder of Amarilis Vasquez and
Attempted Murder of Carlos Mendez
Reed contends the prosecution introduced insufficient evidence to prove his
identity as the assailant of Vasquez and Mendez. He maintains that the
prosecution’s failure to carry its burden violated his right to due process under the
Fourteenth Amendment of the United States Constitution. (See Jackson v.
Virginia (1979) 443 U.S. 307, 315-316.) We find no error.
On appeal, the test for sufficiency of the evidence is whether evidence was
presented from which a reasonable trier of fact could conclude, beyond a
reasonable doubt, that the prosecution sustained its burden of proof. (People v.
Boyer (2006) 38 Cal.4th 412, 479 (Boyer).) Although we assess whether the
evidence is inherently credible and of solid value, we must also view the evidence
in the light most favorable to the jury verdict and presume the existence of every
fact that the jury could reasonably have deduced from that evidence. (Id. at p.
480.) Even identification of defendant by a single eyewitness may be sufficient to
establish, beyond a reasonable doubt, defendant’s identity as perpetrator of the
crime charged. (Ibid.
Mendez’s testimony and identification constitute the only evidence
introduced to prove Reed’s identity as the shooter in the Vasquez incident.
Nevertheless, when viewed in the light most favorable to the jury verdict, we find
that Mendez’s testimony provided sufficient evidence to sustain Reed’s
convictions. Mendez identified Reed as the shooter in two separate lineups and at
the preliminary hearing, and reiterated that identification at trial. There was
nothing “inherently improbable” about this testimony. (See Boyer, supra, 38
Cal.4th at p. 480.) Defense counsel also cross-examined Mendez about the factors
that might undermine the reliability of his identification: Mendez had never seen
the shooter before, and was understandably under substantial stress during the
incident. Under these circumstances, the jury could reasonably have weighed the
value of Mendez’s identification and relied on it to find that Reed was the shooter.
Reed argues that the identification procedures were unduly suggestive
because, Reed maintains, he was the only bald individual in the six-photo array
and the only person to appear in both the photo array and in-person lineup. But
defense counsel did not object to the identification procedures, and Reed does not
now argue the trial court erred when it admitted evidence that Mendez identified
Reed on those two occasions. Any other sufficiency argument based on the
identification procedures attacks the credibility of Mendez’s testimony, which we
do not question when considering sufficiency of the evidence so long as the
witness’s testimony is not inherently improbable. (See People v. Jennings (2010
50 Cal.4th 616, 638 (Jennings) [In considering the sufficiency of the evidence
“[w]e neither reweigh the evidence nor reevaluate the credibility of witnesses.”].
Reed also argues that several factors rendered Mendez’s identification not
credible, especially when compared to Slaughter’s exculpatory testimony. Once
again, however, these arguments go to the credibility of Mendez’s testimony and
its weight, which we cannot reconsider on appeal. 9 Accordingly, we find
sufficient evidence of Reed’s guilt for the murder of Amarilis Vasquez and
attempted murder of Carlos Mendez.
Reed also asks us to consider Galindo’s exculpatory testimony as part of
this claim. But when considering the sufficiency of the evidence, of course, we
are limited to considering the evidence actually presented to the jury. (See People
v. Horton (1961) 191 Cal.App.2d 592, 598 [“On a review of the sufficiency of the
evidence to sustain the judgment of conviction, an appellate court is not permitted
to go outside that record.”].
2. Sufficiency of the Evidence for the Murder of Paul Moreland and
Attempted Murder of Roy Fradiue
Reed next challenges the sufficiency of the evidence identifying him as the
shooter in the murder of Paul Moreland and attempted murder of Roy Fradiue.
We apply the same standard as to Reed’s challenge to his convictions for the
Vasquez/Mendez incident, and we reject the claim as well.
Fradiue’s testimony was the principal evidence of Reed’s involvement in
the Moreland/Fradiue shooting. Fradiue identified Reed as the shooter on three
occasions: from the photo array, in the in-person lineup, and during trial. And as
with Mendez’s testimony, Reed’s trial counsel cross-examined Fradiue on the
circumstances that might lead the jury to doubt his identification: Fradiue was
intoxicated, and he never reported the incident. Nothing rendered Fradiue’s
testimony inherently unreliable, so we hold that the jury could have reasonably
relied on it to conclude that Reed was the shooter. (See Boyer, supra, 38 Cal.4th
at p. 480.) What is more, the evidence put Reed very near the scene of the
shooting the night after it occurred, and with an individual whose last name
matched someone whom the police chased that same night into a home that
contained the murder weapon. Considering all this evidence in the light most
favorable to the guilty verdicts, the jury could reasonably have connected Reed to
the murder weapon as the unidentified man that Officer Betor encountered in the
house. (See ibid. [We “must presume every fact the jury could reasonably have
deduced from the evidence.”].
Reiterating arguments advanced in his previous claims, Reed contends here
that the identification procedures behind Fradiue’s testimony were suggestive. He
also offers several reasons why Fradiue’s testimony could be unreliable. Such
arguments fail to establish that Fradiue’s testimony was inherently improbable,
however, because they merely invite us to reweigh the evidence introduced at trial.
(See Jennings, supra, 50 Cal.4th 616 at p. 638.) Reed also cites People v. Trevino
(1985) 39 Cal.3d 667 and People v. Blakeslee (1969) 2 Cal.App.3d 83, but those
cases are inapposite. In Trevino, the eyewitness identification was highly
equivocal, in contrast to Fradiue’s consistent identification of Reed as the shooter.
(39 Cal.3d at p. 696 [“Mrs. Nyberg was never able to positively identify Rivas as
the second man at the apartment.”].) And in Blakeslee, the prosecution offered no
direct evidence of the defendant’s guilt at all. (2 Cal.App.3d at p. 838 [“No one
witnessed the shooting, no one placed defendant in the apartment at the time of the
shooting, no one saw defendant with a weapon, and no one identified defendant
with any particular weapon.”].) Because the circumstances of this case are
different, we reject Reed’s claim.
3. Mendez’s References to Reed as the “Devil”
During his testimony at the guilt phase, Mendez referred to Reed as “this
devil” or “that devil” on 13 occasions (for example when testifying “I saw this
devil coming with pistol, you know, against us”). Defense counsel did not object
at any point or move for a mistrial. Mendez also referred to Reed as “that devil”
or “this devil” three times during his testimony at the penalty phase retrial.
Defense counsel objected after the second of these outbursts and the trial court
admonished Mendez to refer to Reed as “the defendant” or “Mr. Reed.” Mendez
nevertheless referred to Reed as “this devil” once more, but defense counsel did
not object or request a mistrial. Reed argues that the trial court abrogated its duty
to protect the jury from improper influence by failing to control Mendez and
admonish the jury to disregard his outbursts. (See Sheppard v. Maxwell (1966
384 U.S. 333, 362 [due process requires an impartial jury free from improper
Courts indeed retain broad power to control their courtrooms and protect a
defendant’s right to a fair trial. (People v. Virgil (2011) 51 Cal.4th 1210, 1237;
see also People v. Merkouris (1956) 46 Cal.2d 450, 556 [“It is the duty of a judge
in the administration of justice to preserve the order of the court and see to it that
all persons whomsoever . . . indulge in no act or conduct calculated to obstruct the
administration of justice.”].) But we have never held that a trial court must sua
sponte admonish the jury to ignore a witness’s emotional outbursts. (See People
v. Medina (1995) 11 Cal.4th 694, 727 [A trial court “ ‘has no sua sponte duty to
exclude evidence or to remedy misconduct.’ ”], quoting People v. Freeman (1994
8 Cal.4th 450, 490.) In Medina, we reiterated that due process did not compel a
trial court to recognize and correct all instances of arguable prosecutorial
misconduct. (Ibid.) So too with a witness’s emotional outbursts. Reed was
represented at trial, so the responsibility fell to defense counsel to protest any
objectionable testimony. (See People v. Hinton (2006) 37 Cal.4th 839, 894 [A
defendant must object to allegedly inadmissible evidence to preserve the claim.].
Indeed it is not inconceivable that, in certain circumstances, defense counsel
would decide as a matter of strategy to allow a witness to engage in emotional
outbursts, perhaps to undermine that witness’s credibility. Imposing a duty on
trial courts to intervene in these situations risks unnecessarily enmeshing trial
courts in choices best left to defense counsel. (Cf. People v. Seumanu (2015) 61
Cal.4th 1293, 1312 [“[W]hether or not to object to evidence at trial is largely a
tactical question for counsel.”].
Reed likens Mendez’s conduct to the circumstances of Rodriguez v. State
(Fla.Dist.Ct.App. 1983) 433 So.2d 1273. Leaving aside that the case merely
constitutes potentially persuasive authority, it is easily distinguishable. In that
case, defense counsel had moved for a mistrial after a witness’s outbursts. (Id. at
p. 1274.) The circumstances were similar in Fuselier v. State (Miss. 1985) 468
So.2d 45, another case Reed cites. (Id. at pp. 52-53 [noting that defense counsel
repeatedly objected to the victim’s daughter being allowed to sit with the
prosecution during trial].) Accordingly, the cases do not support Reed’s theory
that the court had a duty to sua sponte intervene to control Mendez and admonish
the jury. We find no error.
4. Jury Instructions Related to Eyewitness Identification
At the time of defendant’s trial, CALJIC No. 2.92 was the model jury
instruction that addressed eyewitness identification factors. The trial court
proposed to give a version of the instruction that omitted two factors listed in the
model: “Whether the witness had prior contacts with the alleged perpetrator” and
“The witness’[s] capacity to make an identification.” Reed argues the trial court
erred reversibly in overruling defense counsel’s objection to these omissions.
Although we agree with Reed that the trial court erred in striking the omitted
factors, we do not think it reasonably probable that the Reed would have received
a more favorable result had the court given the complete instruction. (See People
v. Ward (2005) 36 Cal.4th 186, 214 (Ward) [reviewing potential error in substance
of CALJIC No. 2.92 under People v. Watson (1956) 46 Cal.2d 818 harmless error
a. Striking of CALJIC No. 2.92 Factors was Erroneous
A defendant is entitled to a specific “pinpoint” jury instruction if it relates
to particular facts or a theory of the defense and is supported by substantial
evidence. (People v. Nelson (2016) 1 Cal.5th 513, 542.) More specifically,
“CALJIC No. 2.92 or a comparable instruction should be given when requested in
a case in which identification is a crucial issue and there is no substantial
corroborative evidence.” (People v. Wright (1988) 45 Cal.3d 1126, 1144.) The
trial court clearly believed that eyewitness identification was a major issue in the
case, as it included CALJIC No. 2.92 in the instructions. But it nonetheless
overruled Reed’s request that it give an unmodified version of the instruction.
The trial court chose to omit any reference in the instructions to “[w]hether
the witness had prior contacts with the alleged perpetrator” because, it concluded,
no evidence existed that any “witnesses have ever had any contact with Mr.
Reed.” The People attempt to defend this rationale on appeal, arguing that Reed
had to supply substantial evidence of prior contacts between the defendant and
witnesses for the instruction to be relevant. But this argument ignores that a lack
of evidence of prior contacts with the eyewitness is also relevant to the strength of
an identification. As defense counsel explained to the trial court, the portion of
CALJIC No. 2.92 in dispute calls jurors’ attention to the fact that eyewitness
identifications are considered to be less reliable when the eyewitness has never
seen the suspect before. Indeed it would make no sense to condition a defendant’s
right to this portion of the instruction on a showing of prior contacts between the
witness and the defendant, because such evidence would tend to favor the
prosecution. Accordingly, we hold that the trial court should have included this
factor in the version of CALJIC No. 2.92 given to the jury.
For the factor concerning “[t]he witness’[s] capacity to make an
identification,” the trial court reasoned that its applicability is limited to “someone
who is of minor age” or similar circumstances. We read this to indicate that the
trial court believed the factor applicable only to capacity limitations that are innate
(e.g., age or mental disability) as opposed to exogenous (e.g., intoxication). There
is no apparent reason, however, to give the instruction this limited interpretation.
Although some contemporaneous definitions of “capacity” might suggest such a
limitation, others do not. (See Webster’s 9th New Collegiate Dict. (1987) p. 203
[including both “mental or physical ability” and “potential for . . . experiencing” as
definitions]; see also People v. Sanders (1995) 11 Cal.4th 475, 514 fn. 5 [noting
that CALJIC No. 2.92 was promulgated in 1984].) Evidence that Fradiue was
intoxicated when attacked — something that defense counsel brought to the
court’s attention when discussing jury instructions — justified leaving the
“capacity” factor in the instructions.
Nevertheless, defense counsel conceded — perhaps unnecessarily — that
an argument based on Fradiue’s intoxication was not “really a capacity argument.”
Counsel appeared to agree that this factor could be omitted if the instruction given
to the jury included the catchall “Any other evidence relating to the witness’
ability to make an identification.” We therefore hold that Reed forfeited any
challenge on appeal to the omission of this factor from the jury instructions. (See
People v. Fuiava (2012) 53 Cal.4th 622, 653 [objection to trial court’s voir dire is
forfeited where defense counsel submitted particular questions but then
“assent[ed]” to trial court’s alternate approach].
b. Any Error Related to the Modification of CALJIC No. 2.92 was
Although the trial court should have instructed the jury with a version of
CALJIC No. 2.92 that included the requested factors, its failure to do so was
harmless. The instruction the trial court did use included the catchall “Any other
evidence relating to the witness’ ability to make an identification,” which gave
defense counsel the latitude to offer arguments based on the lack of prior contacts
between Reed and the eyewitnesses and Fradiue’s intoxication. In fact, defense
counsel argued during closing that Fradiue’s identification was unreliable because
he had “been drinking all day.” And while defense counsel did not offer any
specific argument based on the lack of prior contacts, the trial court’s decision to
modify CALJIC No. 2.92 did not preclude defense counsel from doing so. We are
not persuaded, furthermore, that there is any reasonable probability that Reed
would have obtained a more favorable result if defense counsel had offered such
an argument. The focus of Reed’s attorney’s closing argument was the asserted
unreliability of Fradiue’s and Mendez’s identifications. Because “defendant
strongly attacked the accuracy of the eyewitness identifications,” there is no
reasonable probability that the inclusion of the omitted CALJIC No. 2.92 factors
— and any additional argument expressly connected thereto — would have led to
a more favorable verdict for the defendant. (Ward, supra, 36 Cal.4th at p. 214.
C. Penalty Phase Claims
1. Issues Relating to Lingering Doubt
Reed argues that the trial court erred in refusing to instruct the penalty
phase retrial jury on lingering doubt. (See People v. Gay (2008) 42 Cal.4th 1195,
1218 (Gay) [“’The lingering doubts of jurors in the guilt phase may well cast their
shadows into the penalty phase and in some measure affect the nature of the
punishment.’ ”], quoting People v. Terry (1964) 61 Cal.2d 137, 146.) He also
claims that other aspects of the trial court’s communications with the jury intruded
on defense counsel’s ability to argue lingering doubt, and essentially directed a
verdict of death. We find no error.
a. Factual Background
Before the penalty phase retrial, and again after the close of the evidence,
the trial court informed jurors that Reed’s guilt for Vasquez’s and Moreland’s
murders was to be “conclusively presumed” and had been “conclusively proven.”
After the end of the retrial, defense counsel requested two jury instructions
relating to lingering doubt. The prosecutor objected, and the trial court declined to
give the instructions. The instructions given addressed the section 190.3 factors to
determine a murder penalty, including factor (k), which directs the jury to consider
“[a]ny other circumstance which extenuates the gravity of the crime even though it
is not a legal excuse for the crime.” The jury instructions also stated that the
defendant had previously been convicted of first degree murder with a special
circumstance found true.
During closing argument, defense counsel argued at length that problems
with Mendez and Fradiue’s identifications of Reed should lead the jury to reject
the death penalty. After the jury deliberated for several hours, it asked the court
the following question:
If the jury agrees that one of the cases presented warrants the death penalty,
however, one of the cases contains some doubt, according to the
instructions, is it sufficient for awarding death?
Defense counsel argued that the trial court should respond “no” and inform the
jury that it could consider lingering doubt as a circumstance in mitigation. The
prosecutor argued that “legally the answer to the question is yes,” but expressed
concern that telling the jury “yes” would be “telling them how they should vote.”
The parties therefore settled on the following answer: “All things considered,
including whatever doubt you may have on one of the murders, all things
considered, you can chose one or the other.” The trial court then instructed the
jury as follows:
That all things considered in this case, in the context of your question, the
jury still may choose which of the two penalties is appropriate in this case.
The answer is yes.
After further deliberation, the jury returned a verdict of death.
We can readily address Reed’s contention that the trial court erred in
refusing to instruct the jury before it began deliberating on lingering guilt. We
have “put to rest” the “Cox dictum that a lingering doubt instruction may be
required as a matter of statutory law.” (Hartsch, supra, 49 Cal.4th at pp. 512-
513.) Rather, “the standard instructions on capital sentencing factors, together
with counsel’s closing argument, are sufficient to convey the lingering doubt
concept to the jury.” (Id. at p. 513; see also People v. Jackson (2016) 1 Cal.5th
269, 369-370 [“Neither state nor federal law requires a trial court to instruct a
penalty jury to consider lingering doubt as a factor in mitigation.”].) Reed does
not dispute that the trial court instructed using the standard sentencing factors and
that his attorney argued lingering doubt extensively during closing. We therefore
find no error.
Reed also challenges the trial court’s response to the jury’s query. As an
initial matter, the Attorney General argues that Reed has waived this claim
“because defense counsel both participated in the formulation of a response and
affirmatively approved of the response ultimately given.” But the response given
to the jury differed in two material respects from that to which the parties agreed:
The trial court omitted the proposed instruction’s reference to lingering doubt and
added “[t]he answer is yes” to the end of the response. Because the instruction
given materially differs from that to which Reed’s attorney acceded, Reed did not
waive the issue.
On the merits, we find no error. We reject the argument that the question’s
reference to “doubt” entitled Reed to his proposed lingering doubt instruction. In
People v. Brooks, the jury asked whether “one item in mitigation was enough for a
sentence of life without the possibility of parole,” a concept that we have
repeatedly held that a trial court does not need to specifically explain to the jury.
(People v. Brooks (2017) 2 Cal.5th 674, 768.) We did not embrace the
defendant’s contention that the jury’s question required the trial court to give his
proposed instruction on the issue. (Id. at pp. 768-769.) The circumstances here
are similar. The sheer fact that the jury appeared to be confused about lingering
doubt did not automatically entitle the defendant to his proposed instruction.
Instead, we review the trial court’s response for abuse of discretion to determine
whether it adequately satisfied the jury’s request for information. (Id. at p. 769.
Here, there was no abuse of discretion. The instruction was an accurate
statement of relevant law. Lingering doubt is but one factor a jury may consider
when determining the appropriate penalty. And no single section 190.3 factor
“determines which penalty — death or life without the possibility of parole — is
appropriate.” (Virgil, supra, 51 Cal.4th at p. 1279, quoting People v. Prieto
(2003) 30 Cal.4th 226, 263.) Accordingly, a jury may impose a death sentence
notwithstanding its belief that mitigating circumstances, including lingering doubt,
exist. (See CALJIC No. 8.88 [“To return a judgment of death, each of you must
be persuaded that the aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death instead of life without
parole.”].) The trial court’s statement that, even if the jury has some doubt, it “still
may choose which of the two penalties is appropriate” was therefore an accurate
statement of the significance of the existence of lingering doubt in jury’s penalty
determination. Reed seizes on the prosecutor’s comment that “telling [the jury]
yes they can” — something the trial court added to the end of the supplementary
instruction — “will be telling them how they should vote.” He argues that even
the prosecutor recognized that the court’s statement essentially directed a death
verdict. Read as a whole, however, the supplemental instruction did not direct a
verdict but instead advised the jury that it could impose a death sentence based on
“all things considered in this case” even if it found lingering doubt. We therefore
find no error.
Reed also takes issue with the trial court’s statements that his guilt was to
be “conclusively presumed” and had been “conclusively proven.” But we have
previously held that similar statements do not impede a defendant’s ability to
argue lingering doubt. (See People v. Streeter (2012) 54 Cal.4th 205, 265 [“The
trial court properly instructed the jury that the penalty phase jury
must conclusively accept the previous guilt phase jury’s findings on
defendant’s guilt and on the truth of the special circumstance allegations.”]; see
also People v. DeSantis (1992) 2 Cal.4th 1198, 1236, 1238 [holding that trial
court’s statement that defendant’s guilt “has already been decided” “did not
remove the question of lingering doubt from the jury, but only told it the truth: that
in the penalty phase defendant’s guilt was to be conclusively presumed as a matter
of law”].) Reed relies on Gay, supra, 42 Cal.4th 1195, but that case is
distinguishable. In Gay, the error was evidentiary: the trial court erroneously
precluded defense counsel from introducing evidence inconsistent with the prior
jury’s guilty verdict. (42 Cal.4th at p. 1218.) Here, by contrast, the defense
introduced considerable testimony during the penalty phase retrial asserting that
Reed was not the shooter. Gay did note that the trial court’s instructions to the
jury compounded its evidentiary error. (42 Cal.4th at p. 1224.) But those
instructions told the jury to “disregard” any statements or evidence that
contradicted the prior jury’s verdict. (Id. at p. 1225.) In contrast, the instructions
here did nothing of the sort. Because of this, the instructions were not erroneous.
Finally, Reed argues that the trial court erred by failing to inform the
penalty phase retrial jury of the first jury’s deadlock and that Galindo did not
testify during the first trial. Defense counsel did not request either of these
instructions. Any claim based on the trial court’s failure to instruct on these points
is therefore forfeited. (Cf. Jennings, supra, 50 Cal.4th at p. 675 [failure to request
pinpoint instruction forfeits claim on appeal].) On the merits, we have made clear
that “the fact of a first jury’s deadlock, or its numerical vote, is irrelevant to the
issues before the jury on a penalty retrial.” (People v. Hawkins (1995) 10 Cal.4th
920, 968, abrogated on other grounds in People v. Lasko (2000) 23 Cal.4th 101,
109-111.) As for information about Galindo’s absence during the guilt and first
penalty phases, it too bore no obvious relevance to the issue before the penalty
retrial jury. Reed argues that the information highlighted the weakness of the
prosecution penalty phase case, as the first penalty phase jury deadlocked even
without Galindo’s testimony. But this argument depends on information about the
first jury’s deadlock being admissible –– it is not. Any other argument based on
Galindo’s absence would serve only to attack the validity of the guilt phase
verdict, something a defendant cannot do when offering lingering doubt evidence.
(See Gay, supra, 42 Cal.4th at pp. 1223 [A “defendant may not ‘relitigate’ the
guilt verdict.”], quoting State v. Teague (Tenn. 1995) 897 S.W.2d 248, 252.
Accordingly, no error resulted from failing to inform the jury of that fact.
2. Alleged Coercion of Juror No. 1
At about 10:45 a.m. on the second day of deliberations, the penalty retrial
jury informed the trial court that it had reached a verdict. The trial court read
aloud a verdict of death signed by the jury foreman, and the jury collectively
affirmed that this was indeed its verdict. The trial court then individually polled
the jurors. When asked whether the verdict was in fact the juror’s verdict, Juror
No. 1 answered “No.” Asked again, Juror No. 1 reiterated “No.” The trial court
then polled Jurors No. 2 through No. 6, all of whom responded “Yes.” At this
point, the trial court stopped and instructed the jury as follows:
It appears that we do not have a unanimous verdict. I’m going to return the
verdict form to you and ask the jurors to go back into deliberations, please.
Just after 2:00 p.m. that afternoon, the jury returned a verdict of death. This time,
all jurors collectively and individually affirmed that the death verdict was their
true verdict. Reed argues that the trial court’s actions coerced Juror No. 1 to
acquiesce in a majority guilty verdict. Specifically, he argues that the court should
have admonished the jurors that each should arrive at his or her own decision and
that the jury was not required to reach any verdict. We are not persuaded.
The trial court’s comments were quite benign. They were not marred by
the problems we have recognized in other instructions in potential holdout juror
situations. (See People v. Valdez (2012) 55 Cal.4th 82, 162 [It is error for
instruction to deadlocked jury to “single out minority jurors or encourage those
jurors . . . to consider, along with the arguments and the evidence, ‘their own
status as dissenters.’ ”], quoting People v. Gainer (1977) 19 Cal.3d 835, 848;
People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples) [“Coercion occurs where
‘the trial court, by insisting on further deliberations, expresse[s] an opinion that
a verdict should be reached.’ ”], quoting People v. Rodriguez (1986) 42 Cal.3d
730, 775.) Reed argues that the lack of “cautionary instructions” implied that the
jury needed to reach a verdict. But before deliberations began the court instructed
the jury that “each of you must consider the evidence for the purpose of reaching a
verdict if you can do so” and that “each of you must decide the case for yourself.”
The instructions also told jurors not to “decide any question in a particular way
because a majority of the jurors, or any of them, favor that decision.” Under the
circumstances, the initial jury instructions adequately conveyed that jurors did not
need to reach a verdict, and that they should not acquiesce in a verdict with which
they did not agree. The trial court therefore did not err in not offering
supplemental instructions when it emerged that the jury’s verdict was not
3. Penalty Phase Retrial
Reed contends that retrying the penalty phase after the initial jury
deadlocked violated his rights under the United States and California
Constitutions. We have consistently rejected these claims, and see no reason to
reconsider in this case. (See, e.g., Peoples, supra, 62 Cal.4th at p. 751.
4. Assorted Instructional Errors
a. No Preference for the Death Penalty
Reed argues that the trial court erred when it denied his request for an
instruction that the law does not have a preference for death. We have repeatedly
held that trial courts need not include such an instruction in light of the standard
penalty phase jury instructions. (See, e.g., People v. Watson (2008) 43 Cal.4th
652, 699.) Reed offers no persuasive reason to rethink our precedent.
b. Deterrent Value and Monetary Cost of Death Penalty
Reed also argues that the trial court should have instructed the jury that it
could not consider the deterrent (or non-deterrent) effect of the death penalty, or
the cost of executing a defendant versus imprisoning him or her for life. These
instructions are unnecessary, however, when “such considerations are not raised at
trial.” (People v. McKinnon (2011) 52 Cal.4th 610, 696.) Reed does not contend
that either party raised arguments related to cost or deterrence, so we reject the
c. CALJIC No. 17.41.1
Reed faults the trial court for instructing the jury using CALJIC No.
17.41.1, which asked jurors to advise the court if “any juror refuses to deliberate
or expresses an intention to disregard the law or to decide the case based on
[penalty or punishment, or] any [other] improper basis.” We disapproved use of
this instruction in 2002 but have since rejected “claims that the instruction violates
a defendant’s federal constitutional rights.” (People v. Brady (2010) 50 Cal.4th
547, 587; see also People v. Wilson (2008) 44 Cal.4th 758, 805-806.) Reed’s trial
occurred prior to our 2002 opinion, and he fails to persuade that we should
reconsider our precedent.
d. CALJIC No. 8.85
Reed argues that the trial court erred by instructing the jury with a version
of CALJIC No. 8.85 that included inapplicable factors and failed to specify
whether each factor was aggravating, mitigating, or potentially either. But we
have long held that the state and federal constitutions do not require trial courts to
provide such a gloss on CALJIC No. 8.85. Reed has not demonstrated why we
should overturn settled law on the question. (See, e.g., People v. Thomas (2011
51 Cal.4th 449, 505 [“ ‘[T]he jury is capable of deciding for itself which factors
are “applicable” in a particular case.’ ”], quoting People v. Ghent (1987) 43 Cal.3d
739, 777; People v. Rogers (2009) 46 Cal.4th 1136, 1178-1179 [rejecting claim
that instructions must advise whether CALJIC No. 8.85 factors are aggravating,
mitigating, or potentially either].
e. CALJIC No. 8.88
Reed argues that CALJIC No. 8.88 is unconstitutional in various respects.
As he recognizes, we have repeatedly rejected these claims. (See, e.g., People v.
Linton (2013) 56 Cal.4th 1146, 1211; People v. Coffman (2004) 34 Cal.4th 1,
124.) Reed offers no reason to conclude otherwise.
5. Multiple Murder Special Circumstance
The only special circumstance alleged and found true in this case was that
set forth in section 190.2, subdivision (a)(3) — the so-called “multiple murder”
special circumstance. Reed argues that the criterion violates the Eighth
Amendment of the federal Constitution by failing to “genuinely narrow” the
category of defendants eligible for the death penalty. We have consistently
rejected this argument, however, and see no reason to rethink those decisions.
(See, e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 934 [citing past cases].
6. Other Challenges to California’s Death Penalty Law
Reed lodges several other challenges to the constitutionality of California’s
capital sentencing scheme, all of which he concedes we have previously rejected.
We are not persuaded to reconsider our precedent. Specifically, we reaffirm that
the state’s death penalty scheme does not violate the federal Constitution by
failing to sufficiently narrow the class of offenders eligible for the death penalty
(People v. Winbush (2017) 2 Cal.5th 402, 488); permitting arbitrary and capricious
sentencing (id. at p. 489); allowing for a death sentence without the jury finding
beyond a reasonable doubt the existence of aggravating factors, that aggravating
factors outweigh mitigating ones, or that death is the appropriate penalty (ibid.);
not requiring written jury findings regarding aggravating factors (id. at p. 490);
forgoing inter-case proportionality review (ibid.); allowing prosecutors to use
unadjudicated criminal activity as a factor in aggravation (id. at p. 489);
employing restrictive adjectives such as “extreme” or “substantial” to describe
factors in mitigation (People v. Martinez (2010) 47 Cal.4th 911, 968); not
identifying which factors are aggravating and which are mitigating (ibid.); or
providing different procedural safeguards to capital and non-capital defendants
(Winbush, 2 Cal.5th at p. 490). Last, we reaffirm that the state’s use of the death
penalty does not violate international norms or evolving standards of decency in
violation of the Eighth and Fourteenth Amendments. (Ibid.
7. Reliability of California’s Criminal Justice System
Reed argues that the state’s criminal justice system is too unreliable to
allow for the imposition of the death penalty. To the extent that Reed challenges
the strength of the eyewitness identifications of him, we have already rejected the
claim. (See Sections II.B.1-2, supra.) To the extent he argues that the state’s
criminal justice system allows for an unconstitutionally high chance of a wrongful
conviction, we recently discussed that claim at some length and rejected it. (See
People v. Williams (2013) 58 Cal.4th 197, 296.) We see no reason to reconsider.
8. Method of Execution
Reed argues that California’s use of lethal injection in the administration of
the death penalty violates the Eighth Amendment. But a “challenge to the method
of a future execution is not cognizable on appeal, because such a claim does not
impugn the validity of the judgment.” (People v. Burney (2009) 47 Cal.4th 203,
9. Cumulative Error
Reed argues that the cumulative effect of the errors at his trial requires
reversal. Because we have found but one error — which was harmless — there is
no prejudice to cumulate. (See Section II.B.4, supra.) We therefore reject the
We affirm the judgment.
CANTIL-SAKAUYE, C. J.
Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
DISSENTING OPINION BY LIU, J.
After the prosecutor used five of his first eight peremptory strikes to excuse
five of the six black prospective jurors in the jury box, counsel for defendant Ennis
Reed raised a challenge under Batson v. Kentucky (1986) 476 U.S. 79, 89 and
People v. Wheeler (1978) 22 Cal.3d 258, 276–277. This pattern of strikes,
considered in the totality of circumstances, easily raised an inference of
discrimination, and the trial court should have asked the prosecutor to give his
reasons for the strikes. I respectfully disagree with the contrary conclusion in
In addition, this case provides another example of the problematic nature of
eyewitness identification evidence, particularly where such evidence is the sole or
principal evidence against the defendant. (See People v. Sánchez (2016) 63
Cal.4th 411, 494–498 (conc. opn. of Liu, J.) (Sánchez).) As explained further
below, it is time to consider rules that assign the trial court a stronger gatekeeping
role in this context.
As today’s opinion notes, the trial court erred in requiring Reed to show a
“strong likelihood” that the disputed strikes were racially motivated. (Maj. opn.,
ante, at p. 10.) In Johnson v. California (2005) 545 U.S. 162 (Johnson), the high
court rejected this court’s rule that a prima facie case under Batson requires a
showing that it is “ ‘more likely than not’ ” the strikes were based on
impermissible bias. (Johnson, at p. 168.) The high court explained: “[W]e
assumed in Batson that the trial judge would have the benefit of all relevant
circumstances, including the prosecutor’s explanation, before deciding whether it
was more likely than not that the challenge was improperly motivated. We did not
intend the first step to be so onerous that a defendant would have to persuade the
judge—on the basis of all the facts, some of which are impossible for the
defendant to know with certainty—that the challenge was more likely than not the
product of purposeful discrimination. Instead, a defendant satisfies the
requirements of Batson’s first step by producing evidence sufficient to permit the
trial judge to draw an inference that discrimination has occurred.” (Id. at p. 170.
The showing required to establish an inference of discrimination at
Batson’s first step is a “low threshold.” (People v. Scott (2015) 61 Cal.4th 363,
384 (Scott); accord, Sorto v. Herbert (2d Cir. 2007) 497 F.3d 163, 170
[“The first step of the Batson analysis, requiring the showing of a prima facie case,
is not meant to be onerous.”]; Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083,
1092 (Paulino) [the showing required at Batson’s first stage “ ‘ “is not
onerous” ’ ”]; Stacey v. State (Ga. 2013) 741 S.E.2d 881, 841 [same]; People v.
Hecker (N.Y. 2010) 942 N.E.2d 248, 264 [same]; Valdez v. People (Colo. 1998
966 P.2d 587, 596 [same].) The threshold is low because “[t]he Batson framework
is designed to produce actual answers to suspicions and inferences that
discrimination may have infected the jury selection process. See [Batson,] 476
U.S., at 97–98, and n. 20. The inherent uncertainty present in inquiries of
discriminatory purpose counsels against engaging in needless and imperfect
speculation when a direct answer can be obtained by asking a simple question.”
(Johnson, supra, 545 U.S. at p. 172.) The finding of a prima facie case is not
tantamount to proof or even a presumption of unlawful discrimination; it simply
prompts inquiry into the prosecutor’s actual reasons for a peremptory strike.
The court observes that the factors “especially relevant” to the first-stage
inquiry “include whether a party has struck most or all of the members of the
venire from an identified group, whether a party has used a disproportionate
number of strikes against members of that group, whether the party has engaged
those prospective jurors in only desultory voir dire, whether the defendant is a
member of that group, and whether the victim is a member of the group to which a
majority of remaining jurors belong.” (Maj. opn., ante, at p. 11.) Almost all of
these factors point to the existence of a prima facie case here. At the time of the
Batson motion, the prosecutor had used five of his first eight peremptory
challenges to strike five of the six black prospective jurors in the jury box. The
prosecutor engaged in voir dire with only one of the five black jurors whom he
struck. And Reed himself is black. It is evident — and the court does not dispute
— that these circumstances gave rise to an inference of discrimination. (Cf.
Paulino, supra, 371 F.3d at pp. 1090–1092 [finding prima facie case where the
defendant was black and the prosecution had used five out of six peremptory
strikes to excuse five out of six black jurors while accepting one black juror].
Today’s opinion nonetheless affirms the trial court’s first-stage ruling by
resorting to two arguments. First, the court says that the totality of the record,
including events after the trial court ruled on the Batson motion, dispels “the
inference of discrimination that might otherwise be drawn from the prosecutor’s
initial strikes.” (Maj. opn., ante, at p. 12.) Second, the court hypothesizes reasons
for each of the strikes and concludes that the prosecutor could have had
“objectively strong reasons for dismissing the prospective jurors.” (Id. at p. 16.
Neither argument is persuasive.
While acknowledging that “[t]he prosecutor used five of his first eight
peremptory strikes (roughly 63 percent) on black jurors, even though such jurors
constituted only 34 percent of the venire,” the court says we cannot limit our
analysis to the circumstances at the time the trial court ruled on the Batson motion.
(Maj. opn., ante, at p. 12.) Instead, we must look to “the entire jury selection
process,” which reveals that “[s]ix of the prosecutor’s thirteen regular juror strikes
(46 percent) — and seven of sixteen overall (44 percent) — targeted black jurors.”
(Ibid.) In addition, “the prosecutor first signaled his acceptance of a jury at a time
when it contained two black jurors, and three black jurors ultimately sat on the
As an initial matter, I note that this approach — considering events that
occurred after the trial court ruled on the Batson motion — is at odds with our
recent statement that “the question at the first stage concerning the existence of a
prima facie case depends on consideration of the entire record of voir dire as of the
time the motion was made . . . .” (Scott, supra, 61 Cal.4th at p. 384, italics added,
citing People v. Lenix (2008) 44 Cal.4th 602, 624.) It is also in tension with our
holding in People v. Chism (2014) 58 Cal.4th 1266 that analysis of postruling
developments is “forfeited” on appeal if the defendant did not bring those
developments to the trial court’s attention by “renew[ing] his Batson/Wheeler
claim.” (Id. at p. 1319.) Chism, like Scott, relied on Lenix’s statement that
“appellate review is necessarily circumscribed. . . . [T]he trial court’s finding is
reviewed on the record as it stands at the time the [Batson/Wheeler] ruling is
made.” (Lenix, at p. 624, quoted in Chism, at p. 1319.) Today’s opinion cuts
against this statement. Although Chism and Lenix were addressing third-stage
Batson analysis, there is no reason to think today’s recognition of our obligation to
“examine the entire record” (maj. opn., ante, at p. 11) should apply only to review
of first-stage rulings and not to review of third-stage rulings as well. (See Chism,
at pp. 1350–1352 (conc. & dis. opn. of Liu, J.) [appellate review of third-stage
ruling requires consideration of postruling developments].
In appellate review of a first-stage ruling, postruling developments can be
relevant in assessing the significance of a pattern of strikes. “[T]he percentage of
potential black jurors struck can change depending on when the defendant objects.
If a black juror ‘is the first person called, and thus the first person struck, all (or
100%) of the prosecutor’s peremptory challenges will have been exercised against
African-Americans,’ whereas if the same juror is ‘called at the end of the voir
dire, the percentage may be far lower.’ ” (Paulino, supra, 371 F.3d at p. 1091.
And “the time at which a statistical pattern is pointed out . . . may be relevant to
the weight of the apparent disparity” between the percentage of strikes used
against black jurors and the percentage of black jurors in the venire. (Ibid.
Today’s opinion applies this line of reasoning. (Maj. opn., ante, at p. 12.
But it is perhaps inaccurate to say that such reasoning sheds light on
whether the trial court’s first-stage ruling was correct. The first step in the Batson
framework is to decide whether the prosecutor must state reasons for a disputed
strike, and the trial court must decide (and can only decide) that question based on
the circumstances up to that point. Postruling developments, such as the final
percentage of strikes used on black jurors, are better understood as going to the
ultimate issue of whether the prosecutor acted with discriminatory intent, not to
the preliminary issue of whether the prosecutor should have been required to state
reasons for a strike at the time the challenge was made. Postruling developments
can provide a basis for denying a Batson claim on appeal — whether or not the
first-stage ruling was correct when made — if the totality of the record, including
such developments, permits no reasonable inference that the prosecutor acted with
In support of this approach, the court cites People v. Garcia (2011) 52
Cal.4th 706 (Garcia). There, the prosecutor used her first three strikes against
female jurors, and the defendant filed a Wheeler motion. The trial court found no
prima facie case of discrimination. On appeal, we said the three strikes comprised
too small a sample for us to infer gender discrimination. (Garcia, at p. 747.) We
observed that women comprised 56 percent (42 out of 75) of the jury pool, 50
percent (7 out of 14) of the jurors ultimately struck by the prosecutor, and —
“[m]ost telling” — 83 percent (10 out of 12) of the seated jury. (Id. at p. 748.
These circumstances overwhelmingly indicated that the prosecutor did not act with
The postruling developments in this case are not nearly so compelling. The
fact that three black jurors ultimately sat on the jury is certainly relevant. But I
would not say the final percentage of strikes used on black jurors (46 percent in
the process of selecting the 12-person jury and 44 percent overall, including
selection of alternates) “only barely” exceeds the percentage of black jurors in the
venire (34 percent). (Maj. opn., ante, at p. 12.) In any event, the more telling
comparison is not to the percentage of black jurors in the venire, but to the
percentage of blacks among those jurors who reached the jury box and could have
been struck. When selection of the 12-person jury had concluded, 38 jurors had
been considered; nine of them, or 24 percent, were black. Ten additional jurors,
including one black juror, were considered in the selection of alternates. So when
the entire jury selection process had concluded, a total of 48 jurors had been
considered; 10 of them, or 21 percent, were black. Thus, the final percentage of
strikes used on black jurors was substantially greater than the percentage of blacks
among the jurors whom the prosecutor could have struck, whether in the selection
of the 12-person jury (46 percent versus 24 percent) or in the entire process (44
percent versus 21 percent). In the end, the prosecutor struck seven of the 10 black
jurors whom he could have struck. These statistics do not dispel the inference of
discrimination arising from the initial pattern of strikes.
It is true that the prosecutor, after initially using five out of eight strikes to
remove five out of six black jurors, thereafter used only two out of eight further
strikes to remove two out of four black jurors. But there is a potential ambiguity
in the inference to be drawn from postruling behavior that is apparently
nondiscriminatory. Such behavior may indicate that the prosecutor was acting
without discriminatory intent all along, or it may indicate that the prosecutor
shifted his approach after a Batson challenge was made. In some cases, like
Garcia, the postruling evidence of nondiscrimination is so strong, and the
preruling evidence of discrimination is so weak, that there is no ambiguity. But
the ambiguity is certainly present here, where the prosecutor’s pattern of strikes
before the Batson challenge differs markedly from his strikes afterward.
In light of this ambiguity and the other considerations above, I do not find
the postruling developments in this case to be so probative as to permit no
reasonable inference that the prosecutor acted with discriminatory intent. The trial
court erred in finding no inference of discrimination from the initial pattern of
strikes, and subsequent developments in jury selection do not dispel that inference.
The other tack the court takes to find no prima facie case of discrimination
is to hypothesize reasons for each of the disputed strikes. We have said that
“nondiscriminatory reasons for a peremptory challenge that are apparent from and
‘clearly established’ in the record . . . and that necessarily dispel any inference of
bias” are relevant to first-stage analysis. (Scott, supra, 61 Cal.4th at p. 384,
citations omitted.) But the reasons hypothesized by the court fall far short of
“necessarily dispel[ling] any inference of bias.” (Ibid.
It is worth noting at the outset that although our case law has often
hypothesized reasons for a disputed strike as part of first-stage Batson analysis, the
United States Supreme Court has never approved this practice. (Cf. Williams v.
Louisiana (2016) 579 U.S. __, __ [136 S.Ct. 2156, 2157] (conc. opn. of Ginsburg,
J., joined by Breyer, Sotomayor & Kagan, JJ.) [state rule permitting the trial court
instead of the prosecutor to supply a race-neutral reason at Batson’s second step
“does not comply with this Court’s Batson jurisprudence”].) In Johnson, the high
court found an inference of discrimination based on the prosecutor’s removal of all
three black prospective jurors in a case where a black defendant was charged with
killing his white girlfriend’s child. (Johnson, supra, 545 U.S. at pp. 164–165.
The trial judge’s “own examination of the record had convinced her that the
prosecutor’s strikes could be justified by race-neutral reasons. Specifically, the
judge opined that the black venire members had offered equivocal or confused
answers in their written questionnaires.” (Id. at p. 165.) But the high court
assigned no weight to the trial court’s hypothesized reasons for the strikes.
Johnson made clear that “[t]he Batson framework is designed to produce
actual answers to suspicions and inferences that discrimination may have infected
the jury selection process. [Citation.] The inherent uncertainty present in
inquiries of discriminatory purpose counsels against engaging in needless and
imperfect speculation when a direct answer can be obtained by asking a simple
question.” (Johnson, supra, 545 U.S. at p. 172.) On this point, Johnson quoted
the Ninth Circuit’s statement in Paulino that “ ‘[i]t does not matter that the
prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason
they were stricken.’ ” (Johnson, at p. 172, quoting Paulino, supra, 371 F.3d at
p. 1090, italics omitted by Johnson.) Paulino said that “[w]hile we may consider
whether ‘the record contains entirely plausible reasons, independent of race, why’
a prosecutor may have exercised peremptories, [citation], such reasons have
usually helped persuade us that defendant made no prima facie showing where
defendant challenged the excusal of just one juror.” (Paulino, at pp. 1091–1092.
Where there is “a pattern of strikes that raises a plausible inference of
discrimination,” such reasons have less persuasive value. (Id. at p. 1092.) In
Paulino, as in this case, the prosecutor struck five out of six black jurors. The trial
court, at Batson’s first step, had engaged in “detailed” evaluation of each strike
and had found “ ‘objective reasons for all of these jurors to be excused.’ ” (Id. at
p. 1089.) But Paulino, like Johnson, assigned no weight to such reasons. (Id. at
“Of course, there may be circumstances where the explanation for a
prosecutor’s strike of a particular juror is so obvious that there is little or no reason
to think anything else could have motivated the strike. (See, e.g., People v.
Jones (2013) 57 Cal.4th 899, 982–983 (conc. opn. of Liu, J.) [‘[The struck juror]
was married to a convicted murderer. None of the seated or alternate jurors had
anything remotely similar in their backgrounds.’].) In such cases, trial courts need
not and should not subject prosecutors to idle inquiry; they may swiftly and
justifiably reject ‘a spurious claim interposed simply for purposes of harassment or
delay.’ ” (People v. Harris (2013) 57 Cal.4th 804, 872–873 (conc. opn. of Liu, J.
(Harris).) But “[b]ecause it is all too easy to comb the record and find some
legitimate reason the prosecution could have had for striking a minority juror,
dispelling an inference of discrimination otherwise arising from the totality of
circumstances ‘requires more than a determination that the record could have
supported race-neutral reasons for the prosecutor’s use of his peremptory
challenges.’ (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1110.) . . . .
‘[I]n light of [Johnson v. California], an inquiry into apparent reasons is relevant
only insofar as the strikes are so clearly attributable to that apparent, non-
discriminatory reason that there is no longer any suspicion, or inference, of
discrimination in those strikes.’ (United States v. Stephens (7th Cir. 2005) 421
F.3d 503, 516.)” (Ibid.
Here, the court’s hypothesized reasons for the strikes of Janice C. and Mary
C. are underwhelming. Janice C., a systems engineer, was married with one child
and was “neutral” on the death penalty. Mary C., a retired clerk, was married with
two children and believed the death penalty “is OK in some case[s].” The court
posits that the prosecutor might have struck them because Janice C.’s spouse had
been convicted of a drug offense in 1977 and Mary C.’s husband had been arrested
or charged with a crime 10 years before Reed’s trial. (Maj. opn., ante, at p. 14.
The court also notes that Mary C., on her questionnaire, did not “answer critical
questions related to her husband’s criminal history.” (Id. at p. 16.) But the
prosecutor did not ask either Mary C. or Janice C. about these matters during voir
dire. (Cf. Miller-El v. Dretke (2005) 545 U.S. 231, 250, fn. 8 [“. . . Warren [a
struck juror] had a brother-in-law convicted of a crime having to do with food
stamps for which he had to make restitution. [Citation.] [The prosecutor] never
questioned Warren about his errant relative at all; . . . the failure to ask undermines
the persuasiveness of the claimed concern.”].
Reed observes that if the prosecutor’s concern about Janice C. and Mary C.
had to do with their family members’ arrests or criminal convictions, then the
prosecutor should have struck similarly situated non-black jurors. It is notable that
the court addresses this contention not by dismissing the appropriateness or
relevance of such comparison, but by engaging in comparative juror analysis.
(Maj. opn., ante, at pp. 15–16.) Today’s opinion is the third time in recent years
that the court has engaged in such analysis at step one of the Batson inquiry. (See
Sánchez, supra, 63 Cal.4th at pp. 439–440; Harris, supra, 57 Cal.4th at pp. 836–
838.) This emerging practice implicitly disavows our prior statements that
comparative juror analysis in evaluating hypothesized reasons at stage one “is
inappropriate” (Sánchez, at p. 439) or “has little or no use” (People v. Bonilla
(2007) 41 Cal.4th 313, 350). As I have explained elsewhere, such analysis is part
of what it means to consider all relevant circumstances at Batson’s first stage; no
other jurisdiction has rejected the relevance of comparative juror analysis in
testing a hypothesized reason for a contested strike; and our case law declining to
engage in such analysis defies “a mountain of contrary authority.” (Sánchez, at
p. 492 (conc. opn. of Liu, J.) [collecting cases]; see Harris, at pp. 874–876 (conc.
opn. of Liu, J.).
Here, at least three non-black jurors seated on the final jury had relatives
who had been arrested: Juror No. 2801’s daughter had been arrested for
possession of drugs; Juror No. 9716’s brother-in-law had been arrested for an
unspecified misdemeanor; and Juror No. 1923’s brother had been arrested for an
“unknown” offense. In addition, two alternate jurors had more direct encounters
with law enforcement than either Janice C. or Mary C.: Juror No. 8989 was
arrested for disturbing the peace, and Juror No. 0402 was arrested, convicted, and
sentenced to a fine and probation for possession of an illegal knife. Whether a
prosecutor would regard these jurors’ experiences with law enforcement as more
or less disqualifying than a spouse’s 20-year-old conviction on drug charges
(Janice C.) or a spouse’s 10-year-old arrest or charge for an unspecified crime
(Mary C.) is a matter of speculation — precisely the kind of “needless and
imperfect speculation” disapproved by the high court. (Johnson, supra, 545 U.S.
at p. 172.
People v. Lancaster (2007) 41 Cal.4th 50 does not support the court’s view.
There, the juror in question had a nephew who was convicted of robbery murder
and sentenced to life imprisonment without possibility of parole, and another
nephew who had been imprisoned for drug offenses. (Id. at pp. 77–78.) Further,
the defendant’s showing of discrimination was “meager,” with three black jurors
excused but four black jurors remaining impaneled at the time the Batson
challenge was made. (Id. at p. 76.) We said that “on this record no inference of
group bias appears from the prosecutor’s decision to challenge a prospective juror
whose family members were serving or had served prison terms.” (Id. at p. 78,
italics added.) The court overreads Lancaster by quoting the previous sentence
without the italicized words. (Maj. opn., ante, at p. 16.
The reasons posited by the court for the strike of Nickey W. are also
questionable. Nickey W. was a 45-year-old black man employed by Burlington
Northern Railway; he was married with two children. The court says the
prosecutor could have been concerned with Nickey W.’s “conflicting” answers
regarding the proper burden of proof. (Maj. opn., ante, at p. 15.) But in Johnson,
the high court assigned no weight to the trial court’s finding that “the black venire
members had offered equivocal or confused answers in their written
questionnaires.” (Johnson, supra, 545 U.S. at p. 165.) Here, moreover, Juror No.
1923 gave an answer to a critical question that was no less confused and
contradictory than Nickey W.’s. Asked if he will follow the trial court’s
instructions on the law that applies to the case even if he disagrees with it, Juror
No. 1923 responded “yes” but further explained: “Because I am instructed to
follow the court instructins [sic] not the law.” The prosecutor accepted this juror
without seeking clarification in voir dire.
The court cites People v. Sattiewhite (2014) 59 Cal.4th 446 (Sattiewhite),
but the prosecutor in that case “engaged Prospective Juror P.M. in an in-depth voir
dire, covering more than five pages of transcript, in which P.M. displayed
confused, rambling, and incoherent thinking.” (Id. at p. 470.) That juror, we said,
“exhibit[ed] obvious signs of being unsuitable for the jury.” (Ibid.) Here, the
prosecutor did not engage Nickey W. in voir dire, and the court does not say his
questionnaire answers were so confused or incoherent that he was obviously
unsuitable for the jury.
The court’s hypothesized reasons could have given the prosecutor
“reasonable concern” (maj. opn., ante, at p. 14) or “ ‘legitimate concern’ ” (id. at
p. 15), and “[t]he prosecutor could have readily concluded” that the black jurors
should be removed for those reasons (id. at p. 16). But in order to dispel an
inference of discrimination at Batson’s first step, more is required. The posited
reasons must be ones “that are apparent from and ‘clearly established’ in the
record and that necessarily dispel any inference of bias.” (Scott, supra, 61 Cal.4th
at p. 384, citations omitted.) The court’s loose reasoning in support of its
hypothesized reasons includes citation to cases decided under the wrong (i.e., pre-
Johnson) legal standard for first-stage analysis. (Maj. opn., ante, at pp. 13–15,
citing People v. Panah (2005) 35 Cal.4th 395, 440–441, and People v. Farnam
(2002) 28 Cal.4th 107, 138.) And today’s opinion is devoid of the confident
language we have used in other cases relying on hypothesized reasons. (See, e.g.,
Scott, at p. 385 [“we doubt that any prosecutor would have kept R.C. on the jury”
because the prosecutor “had successfully prosecuted R.C.’s son a year or two
earlier and had committed her son to prison — with the assistance of the same lead
investigator who would be testifying in the current prosecution”]; ibid. [“The
record also established compelling reasons to excuse H.R., who in his
questionnaire said he was so opposed to the death penalty as to be unwilling to
impose it under any circumstances.”]; People v. Taylor (2010) 48 Cal.4th 574, 644
[“the record . . . shows obvious race-neutral reasons for the excusal of all three of
the prospective jurors in question”]; Sattiewhite, supra, 59 Cal.4th at p. 470 [the
juror “exhibit[ed] obvious signs of being unsuitable”].) Today’s opinion does
exactly what the high court says we should not do: it indulges “the imprecision of
relying on judicial speculation to resolve plausible claims of discrimination.”
(Johnson, supra, 545 U.S. at p. 173.
In sum, at the time the Batson challenge was made, the trial court should
have asked the prosecutor to state his reasons for striking five out of six black
jurors. In some cases, an available remedy for first-stage Batson error is a remand
for the trial court to complete the Batson analysis. (See, e.g., Madison v.
Commissioner, Ala. Dept. of Corrections (11th Cir. 2012) 677 F.3d 1333, 1339;
Paulino, supra, 371 F.3d at p. 1092.) But a remand likely is not practical here
because the trial occurred almost 20 years ago. (Cf. Snyder v. Louisiana (2008
552 U.S. 472, 486 [no “realistic possibility” that the question of whether
discriminatory intent was the determinative cause of the disputed strike “could be
profitably explored further on remand at this late date, more than a decade after
petitioner’s trial”].) I acknowledge that reversal of the judgment is a severe
remedy for this kind of error. But there are no other options for giving meaningful
effect to Batson’s mandate. As a result of the trial court’s error, we cannot be
confident that Reed was convicted by a jury selected without regard to race.
In challenging the sufficiency of the evidence as to both murders, Reed
contends that the Vasquez murder conviction was wholly based, and the Moreland
murder almost wholly based, on unreliable eyewitness testimony. As the court
notes, the sufficiency standard is not a high bar; as long as the evidence can
reasonably support the verdict, we defer to the jury’s credibility determinations
and weighing of the evidence. (Maj. opn., ante, at pp. 20–22.
But reliance on uncorroborated eyewitness testimony remains problematic.
“[M]istaken eyewitness identifications have played a role in a substantial number
of wrongful convictions and unsolved crimes.” (Sánchez, supra, 63 Cal.4th at
p. 498 (conc. opn. of Liu, J.), citing Garrett, Convicting the Innocent: Where
Criminal Prosecutions Go Wrong (2011) p. 48 [finding that 190 of the first 250
inmates exonerated by DNA testing since 1989 were misidentified by an
eyewitness].) The limited nature of sufficiency-of-the-evidence review is poorly
suited to detect or prevent miscarriages of justice that may result from erroneous
eyewitness identification. Such review is premised on our trust in jurors’ ability to
make sound credibility determinations. But the jury’s ability to perform that
function with regard to eyewitness testimony is questionable. “We presume that
jurors are able to detect liars from truth tellers. But as scholars have cautioned,
most eyewitnesses think they are telling the truth even when their testimony is
inaccurate, and ‘[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he
or she will not display the demeanor of the dishonest or biased witness.’
[Citation.] Instead, some mistaken eyewitnesses, at least by the time they testify at
trial, exude supreme confidence in their identifications.” (State v. Henderson (N.J.
2011) 27 A.3d 872, 889 (Henderson).
The limitations of sufficiency-of-the-evidence review suggest that the
problem needs to be addressed upstream. One possible solution is to revise
eyewitness jury instructions to more closely align with research into the
limitations of eyewitness evidence. (See, e.g., Sánchez, supra, 63 Cal.4th at
pp. 495–498 (conc. opn. of Liu, J.) [arguing that the part of CALJIC No. 2.92 that
links reliability of eyewitness testimony to the witness’s degree of certainty should
be reexamined in light of research demonstrating a lack of such correlation];
Henderson, supra, 27 A.3d at pp. 925–926 [urging modification of jury
instructions in accordance with generally accepted scientific evidence].) But
given the documented problems with eyewitness testimony and the extent to
which jurors rely on it (see Henderson, at p. 889 [“ ‘there is almost nothing more
convincing [to a jury] than a live human being who takes the stand, points of
finger at the defendant and says, “That’s the one” ’ ”], I am not sure we can rely
solely on jury instructions to adequately address the issue.
The adoption of best, or at least better, practices by law enforcement can
help prevent false eyewitness identification. For example, there is a general
consensus that identifications made through photo lineups or live lineups should
be videotaped and that the person operating the lineup should not be aware of who
the suspect is in order to avoid consciously or unconsciously cuing the witness.
(California Commission on the Fair Administration of Justice, Final Report (2008
p. 27.) But there is little that courts can do to induce law enforcement to adopt
these practices unless courts themselves subject such evidence to greater scrutiny.
Fortunately, there is a substantial body of high-quality research on visual
perception and memory to inform such scrutiny by courts, including a 2014 report
by the National Academy of Sciences. (Nat. Research Council, Identifying the
Culprit: Assessing Eyewitness Identification (2014).
The problematic nature of eyewitness evidence has led some state high
courts to assign trial courts a stronger gatekeeping role in the admission of such
evidence. Of course, courts have the power to exclude evidence when its
probative value is substantially outweighed by its prejudicial effect (Evid. Code,
§ 352), and courts can exercise the power to exclude eyewitness evidence when,
for example, blatantly suggestive lineup procedures make the identification
unreliable. But the New Jersey and Oregon high courts, recognizing the special
problems posed by eyewitness evidence, have gone further.
In Henderson, the New Jersey Supreme Court held that defendants can
obtain a pretrial hearing on the admissibility of eyewitness evidence if they can
show some evidence of suggestiveness that could lead to mistaken identification.
If the defendant makes that showing, then the state must offer proof on the
reliability of the identification, with the defendant carrying the ultimate burden to
prove “a very substantial likelihood of irreparable misidentification.” (Henderson,
supra, 27 A.2d at p. 920.) If the defendant meets the burden, then the evidence
should be suppressed. (Ibid.
The Oregon Supreme Court has taken a somewhat different approach based
on Oregon’s Evidence Code. When a defendant has filed a pretrial motion to
exclude eyewitness evidence, the trial court must determine by a preponderance of
the evidence whether the eyewitness identification was “rationally based” on the
witness’s perceptions. (State v. Lawson (Or. 2012) 291 P.3d 673, 693 (Lawson).
The court may consider evidence of close observation of the suspect’s face
supporting such a determination. (Ibid.) On the other hand, observations of non-
facial features like race, height, weight, clothing, or hair color “generally lack the
level of distinction necessary to permit the witness to identify a specific person as
the person whom the witness saw.” (Ibid.) If the state meets this threshold but the
defendant introduces competing evidence to undermine the reliability of the
identification, then the state “must establish by a preponderance of the evidence
that the identification was based on a permissible basis rather than an
impermissible one, such as suggestive police procedures.” (Ibid.
Although I express no definitive view on the merits of these approaches or
others, I continue to believe the issue of eyewitness identification “deserves our
careful attention.” (Sánchez, supra, 63 Cal.4th at p. 498 (conc. opn. of Liu, J.).
This case illustrates some of the problems. There were several features of the
identifications that called their reliability into question: the witnesses were under
a high level of stress; in the case of the Vasquez murder, the witness’s attention
was likely focused on the gun threatening him; the assailant was viewed under
poor lighting conditions and at a considerable distance; there are questions about
whether the witnesses viewed Reed’s face clearly; cross-racial identification was
involved; the time between the occurrence of the crime and the identification of
the photo lineup was several months; and the witness in the Moreland murder was
intoxicated. (See Henderson, supra, 27 A.3d at pp. 921–922 [discussing factors
affecting reliability of eyewitness identifications]; Lawson, supra, 291 P.3d at
pp. 688–689 [same].
The eyewitness evidence in this case could have benefited from the kind of
screening that New Jersey and Oregon have adopted before it was allowed to go to
the jury. The facts of this case illustrate both the stakes involved in eyewitness
identification and the challenges such evidence presents. The time has come for
the Legislature, the Judicial Council, or this court to develop principles that guide
the admissibility of eyewitness identification evidence.
DISSENTING OPINION BY KRUGER, J.
I respectfully dissent from the court’s judgment for the reasons expressed in
Justice Liu’s dissenting opinion. (See dis. opn. of Liu, J., ante, pt. I.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Reed
Original Appeal XXX
Opinion No. S082776
Date Filed: May 7, 2018
County: Los Angeles
Judge: John Joseph Cheroske
Gail Harper, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Sharlene A. Honnaka and William H. Shin, Deputy Attorneys General, for Plaintiff and
Counsel who argued in Supreme Court (not intended for publication with opinion):
P.O. Box 330057
San Francisco, CA 94133
William H. Shin
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013