People v. Banks (2014) · DecisionDepot

People v. Banks

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Supreme Court Aug 14, 2014 No. S080477Published

Before: Liu

Filed 8/14/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S080477 v. ) ) KELVYN RONDELL BANKS, ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. BA109260 ____________________________________)

Defendant Kelvyn Rondell Banks was convicted by a jury in 1998 of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated), one count of attempted murder (§§ 187, subd. (a), 664), one count of forcible rape (§ 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)), one count of first degree residential robbery (§ 211), one count of first degree residential burglary (§ 459), and one count of attempted second degree robbery (§ 211). The jury also found true the special circumstances allegations of multiple murder, robbery murder, and burglary murder (§§ 190.2, subd. (a)(3), (l7)(A) & (G)); the allegations that defendant personally used a firearm in the commission of each offense (former § 12022.5, subd. (a)); and the allegation that the attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)). Defendant was acquitted of a third murder count related to the killing of Michael Haney in a separate incident.

The first penalty phase trial ended in a mistrial. After a penalty phase retrial, a jury returned a verdict of death in 1999. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)), sentenced defendant on the noncapital counts and enhancements, and imposed a sentence of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) As explained below, the conviction on count 2 of willful, deliberate, and premeditated attempted murder must be reduced to attempted murder. In all other respects, we affirm the judgment. I. FACTS

A. Guilt Phase 1. Prosecution Evidence

a) Crimes against Charles Coleman and Latasha W.

(1) Latasha W. Latasha W. testified that during the early morning hours of July 1, 1996, defendant raped her, shot her, and murdered Charles Coleman. At 2:00 a.m., her friend Charles Coleman, a parapalegic confined to a wheelchair but able to drive, was driving her in his car to his house on Halldale Avenue in Los Angeles. Latasha W., who was 17 years old at the time, began taking shopping bags from the car to the house. As she was returning to the car, Latasha W. saw defendant and another man approach Coleman‘s car from an alley around the corner of the street. Coleman appeared to know defendant and the other man. At Coleman‘s request, defendant pulled Coleman and his wheelchair up the three or four steps that led to the house. Once inside the house, defendant stood directly behind Coleman and pointed a gun at the back of his head. Defendant pulled the gun trigger twice, but the weapon did not discharge. Defendant pulled the trigger a third time, firing a

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Manzanares. Dr. Cotton testified on cross-examination that the Cellmark database used to compute the probability of a specific set of genes occurring in a member of the African-American population contained a sample of 100 African-Americans living across the United States; that the database did not account for inter-racial or mixed race ethnic groups; that the database included only samples from Caucasians, African-Americans, and Hispanics (not Asians or Native Americans); and that the true frequency of the combination of genes occurring in a given population could be 10 times greater or 10 times less than the estimated frequency. Dr. Cotton further testified that the Cellmark analysts who performed the DNA testing prepared two reports, one on June 2,1997, and one on June 30, 1997. In preparing the first report, Cellmark tested five loci and found that the DNA from the sperm sample and the DNA from defendant‘s blood sample was identical at each locus tested. The probability that a member of the African-American population would have the same combination of alleles found in both the sperm sample and blood sample at each of the five loci would be one in 8,000. In preparing the second report, Cellmark tested an additional four loci and again found a perfect match between the sperm sample and defendant‘s blood sample. The probability that a member of the African-American population would have the same combination of alleles found at each of the nine loci tested would be one in 17 million. Yvonne McGill acknowledged on cross-examination that ―most of [defendant‘s] face was covered‖ when she saw him; that she had stated during her grand jury testimony that she had only gotten a ―glimpse‖ of the gunman; and that she had told Officer Weber that the gunman had a dark complexion, whereas she would describe defendant as ―[l]ight skinned.‖ Patricia Manzanares acknowledged on cross-examination that the jacket worn by the gunman is common among African-American men in her

Indicator Profile, a test designed to measure whether the test taker is malingering; and (3) the Wechsler Memory Scale, a test used to assess the test taker‘s memory. Defendant was cooperative during the interviews and testing. Defendant scored a 94 on the Wechsler Adult Intelligence Scale, indicating normal intelligence. However, Dr. Osborne found that defendant seemed to have significant difficulty with three tasks that comprise ―working memory,‖ which is the ability to store information in one‘s brain and manipulate that information on a short-term basis. Defendant appeared eager to do the best he could on the Validity Indicator Profile test, but the results of that test suggested that defendant was not paying close attention to what he was doing. Dr. Osborne concluded that defendant suffered from several severe and chronic mental illnesses. He diagnosed defendant as suffering from intermittent explosive disorder. Individuals suffering from this disorder experience periods during which tensions or emotions build up until they ―explode‖ in the form of aggressive or violent behavior. An explosive episode is followed by a period of quiescence, during which the pressure builds anew. Dr. Osborne also opined that defendant probably suffers from substance dependence. According to Dr. Osborne, defendant‘s test results were consistent with Dr. Gold‘s theory of underlying brain damage. In particular, a diagnosis of intermittent explosive disorder would be consistent with temporal lobe damage because the temporal lobe affects impulse control and intermittent explosive disorder is an impulse control disorder. Similarly, a problem with working memory would be consistent with Dr. Gold‘s diagnosis of temporal lobe damage. Dr. Osborne opined that defendant‘s behavior throughout his life was influenced by the following factors: (1) his mother was a drug addict who neglected him; (2) his early life was very chaotic; (3) his mother took him away from his aunt‘s home where he was happy; (4) his father was absent from his life

a) Factual Background The prosecutor exercised five of his first 11 peremptory challenges against black prospective jurors. Defense counsel did not object to the first four of those challenges. After the prosecution exercised a preemptory challenge against a fifth black prospective juror, defense counsel made a motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). She pointed out that the prosecutor had struck five black jurors. Defense counsel argued: ―It appeared to me that certain jurors were very neutral on everything.‖ The trial court noted that it was ―an interesting time to bring the motion‖ because the last prospective juror, Prospective Juror A.I., had been excused for an obvious reason, i.e., she had said that she was not sure she could be fair because defendant was so young. Defense counsel replied that youth is a mitigating factor and added that she ―couldn‘t see the reason for the peremptory on the first woman who was excused which was Juror [J.R.].‖ Defense counsel then listed the specific prospective African-American jurors that the prosecutor had excused. When the trial court inquired if there was ―anything else that [defense counsel] wish[ed] to add,‖ defense counsel responded: ―Nothing at this time.‖ Shortly thereafter, defense counsel acknowledged that the challenged prospective jurors had expressed ―some degrees [sic] of hesitation‖ about their ability to impose the death penalty, but suggested that other prospective jurors who had not been challenged had expressed some degree of hesitation as well. The prosecutor at first declined to comment because no prima facie case of discrimination had been shown. He took the opportunity, however, to clarify the record. The prosecutor noted that he had exercised 11 peremptory challenges: six against women, five against men, five against black jurors, two against white jurors, three against Hispanic jurors, and one against an Asian-American juror. The trial court added that defense counsel had peremptorily struck 10 prospective

jurors, comprised of two Hispanics, three Asian Americans, three whites, one black, and one man from the Philippines. The prosecutor said the current panel included four blacks, two white men, an Armenian man, two white women, an Asian-American woman, and a man of uncertain racial background. Defense counsel agreed that there were four blacks on the jury panel but classified the Armenian man as white and the man of uncertain race as Hispanic. The trial court concluded that no prima facie showing had been made. It noted that defense counsel had exercised 10 peremptory challenges, only one of which was against a black prospective juror. Defense counsel‘s strikes were relevant, the trial court reasoned, ―not because there is anything impermissible, but [because] it artificially skews things.‖ ―[W]hen the defense does not excuse jurors of a particular sex or race, or what have you, the other side is left in a situation where mathematically as a matter of probability the chances will rise dramatically that the prosecution will exercise challenges [against members of the group in question].‖ ―If you take out the green socks out of the drawer and leave the blue ones in,‖ the trial court explained, ―any challenge will be made to a blue sock.‖ The trial court further observed that each of the challenged black prospective jurors ―gave answers in their questionnaire that present[ed] an ample ground in this case for the prosecution to exercise peremptories.‖ While it was true that all the prospective jurors had ―passed the cause muster, which is not that difficult to do,‖ the trial court found that there were ―things in the questionnaire‖ that could legitimately ―bother‖ the prosecution. The trial court then informed the prosecutor that he was permitted, but not required, to indicate his reasons for striking the five black prospective jurors. The prosecutor responded, ―I think it is creating a problem for me to justify when there is no prima facie showing. [¶] I would say that the questionnaires speak for

under the Fourteenth Amendment to the United States Constitution.‘ ‖ (People v. McKinzie (2012) 54 Cal.4th 1302, 1319; see Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); Wheeler, supra, 22 Cal.3d at pp. 276–277.) Although defense counsel invoked only Wheeler, a Wheeler objection preserves a Batson claim. (People v. Yeoman (2003) 31 Cal.4th 93, 117−118.) A Batson/Wheeler objection triggers a three-step inquiry. ―First, the defendant must make out a prima facie case ‗by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.‘ [Citation.] Second, once the defendant has made out a prima facie case, the ‗burden shifts to the State to explain adequately the racial exclusion‘ by offering permissible race- neutral justifications for the strikes. [Citations.] Third, ‗[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.‘ [Citation.]‖ (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted; see People v. Thomas (2011) 51 Cal.4th 449, 473.) Here, the trial court first found that there was no prima facie case with respect to any of defendant‘s Batson/Wheeler claims. Nonetheless, after initially hesitating, the prosecutor accepted the court‘s invitation to explain his strikes and stated that all three jurors were struck because of what he perceived to be their reluctance to impose the death penalty. The trial court agreed with the prosecution that the challenged jurors had demonstrated reluctance about the death penalty. ―We have characterized such a circumstance as a ‗first stage/third stage Batson hybrid,‘ which renders ‗ ―moot‖ ‘ whether defendant established a prima facie showing of a discriminatory purpose. [Citations.] ‗Accordingly, we express no opinion on whether defense counsel established a prima facie case of discrimination and instead skip to Batson‘s third stage to evaluate the prosecutor‘s

reasons for dismissing [the] African-American prospective jurors.‘ ‖ (People v. Riccardi (2012) 54 Cal.4th 758, 786–787.) At the third stage of Batson, the ―critical question . . . is the persuasiveness of the prosecutor‘s justification for his peremptory strike.‖ (Miller-El v. Cockrell (2003) 537 U.S. 322, 338–339.) Usually, ―the issue comes down to whether the trial court finds the prosecutor‘s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor‘s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.‖ (Id. at p. 339.) ― ‗As with the state of mind of a juror, evaluation of the prosecutor‘s state of mind based on demeanor and credibility lies ―peculiarly within a trial judge‘s province.‖ ‘ ‖ (Ibid.) Thus, in reviewing a trial court‘s reasoned determination that a prosecutor‘s reasons for striking a juror are sincere, we typically defer to the trial court and consider only ―whether substantial evidence supports the trial court‘s conclusions.‖ (People v. Lenix (2008) 44 Cal.4th 602, 627 (Lenix).) In this case, defendant challenges the trial court‘s ruling with respect to three of the five black jurors struck by the prosecutor: J.R., R.W., and A.I. Defendant first argues that the trial court erred in considering the fact that defendant‘s decision to strike only one black juror rendered it statistically more probable that the prosecutor would strike black jurors at a higher rate than the rate at which such jurors were represented in the venire. We disagree. In deciding whether substantial evidence supports a trial court‘s determination that a peremptory challenge was not motivated by race, we must consider the ―entire record‖ before the court. (Lenix, supra, 44 Cal.4th at p. 621.) In this case, as the trial court explained, the manner in which defense counsel exercised her peremptory challenges provided relevant context. Because black jurors comprised roughly a third of the venire, the fact that defense counsel had exercised only one

of her 10 peremptory challenges against a black juror increased the percentage of blacks remaining on the panel, thus increasing the likelihood that the prosecutor would exercise a disproportionate share of his peremptory challenges against black jurors for entirely permissible reasons. Moreover, the disparity between the percentage of blacks in the entire jury pool and the percentage of peremptory challenges the prosecutor exercised against black prospective jurors is not very significant. The prosecutor used about 45 percent of his peremptory challenges to remove black jurors. Had he removed one fewer black juror, that percentage would have fallen to about 36 percent, almost equal to the percentage of blacks in the entire jury pool. And at the time defendant made his Wheeler motion, four of the 12 prospective jurors on the panel — exactly one-third — were black. Given the small sample size at issue, the trial court reasonably refused to infer a discriminatory intent on the basis of these statistics. (See People v. Cleveland (2004) 32 Cal.4th 704, 734 (Cleveland) [where the jury‘s minority composition is ultimately ―either slightly higher or slightly lower‖ than the venire‘s, such statistics are ―probative‖ although not necessarily ―dispositive‖ of a lack of discriminatory intent].) Second, defendant argues that the prosecutor‘s stated reason for excusing each of the three prospective jurors — their ―inability to impose the death penalty‖ — is belied by the record. He further argues that the prosecutor‘s initial reluctance to explain the reasons for his challenges is ―suspect.‖ If the prosecutor ―had valid, race-neutral reasons for challenging each of the jurors,‖ defendant argues, ―then logically it would create no problem for him to justify those challenges in a succinct statement to the court.‖ As an initial matter, the prosecutor was not obliged to state his reasons for challenging any prospective juror because the trial court concluded that defendant had not made a prima facie case of discrimination. (People v. Carasi (2008) 44

Cal.4th 1263, 1292.) Thus, there is nothing suspect about any reluctance the prosecutor may have had to state his reasons. In any event, the trial court‘s conclusion that defendant did not carry his burden of demonstrating that the prosecutor acted with discriminatory intent is supported by substantial evidence. The prosecutor offered valid race-neutral reasons for excusing each of the three prospective jurors. All three prospective jurors answered the written questionnaire in a manner that suggested a significant degree of confusion or hesitation regarding their ability to impose the death penalty. Prospective Juror J.R. circled both ―yes‖ and ―no‖ in response to question 31(f) of the questionnaire, which asked: ―Regardless of your views on the death penalty, would you as a juror, be able to vote for the death penalty on another person if you believe after hearing all the evidence, that the penalty was appropriate?‖ During voir dire, J.R. explained that the question ―didn‘t have an ‗I don‘t know‘ so I put a yes and no.‖ When asked if ―don't know‖ was her answer, J.R. stated, ―Well, I understood it, but my answer to that is I don‘t know anything much about the death penalty.‖ Similarly, J.R. selected ―don‘t know‖ in answer to questions 33 and 34. Question 33 asked, ―In this penalty phase would you automatically, in every case, regardless of the evidence, vote for life in prison without the possibility of parole?‖ And question 34 asked, ―Do you have any conscientious objections to the death penalty which you believe might impair your ability to be fair and impartial in a case in which the prosecution is seeking the death penalty?‖ Prospective Juror R.W. responded to question 30 of the questionnaire by writing: ―I have never given a serious thought to the death penalty I would have to say I honestly don‘t know if I could vote on putting some one to death.‖ Question 31(e) of the questionnaire asked, ―Do you feel California should have the death penalty?‖ to which Prospective Juror R.W. responded, ―I don't know. I don‘t see it

as a way to stop crime because we don‘t kill everybody who commits a crime.‖ She also wrote, in answer to a later question: ―I don't know what the purpose [of the death penalty] is because it still doesn‘t stop crime!‖ In response to question 34, she selected ―don‘t know‖ as to whether she had any conscientious objections to the death penalty. During voir dire, when questioned by the court about her answers to these questions, R.W. twice stated only that she ―th[ought]‖ she would be able to impose the death penalty if she found the aggravating factors to outweigh the mitigating factors. Prospective Juror A.I.‘s written and oral answers also revealed that she had qualms about the death penalty and wasn‘t sure she could serve as an impartial juror because of defendant‘s age. In response to question 33, A.I. selected, ―don‘t know.‖ When asked at voir dire if she could ―think of any reason [she] would tend to favor one side or the other,‖ A.I. hesitated to answer and then at the court‘s urging replied, ―I don‘t know. He seems very young. I might hesitate.‖ Prospective Juror A.I. also told the trial court that she would have difficulty looking at pictures of ―autopsies‖ and the ―murder scene.‖ Defendant correctly observes that none of these three prospective jurors would have been excusable for cause because each expressed a willingness to follow the law if selected for the jury. However, ―[a] prosecutor‘s reasons for exercising a peremptory challenge ‗need not rise to the level justifying exercise of a challenge for cause.‘ ‖ (People v. Hamilton (2009) 45 Cal.4th 863, 901 (Hamilton).) ―Moreover, even when jurors have expressed neutrality on the death penalty, ‗neither the prosecutor nor the trial court [i]s required to take the jurors‘ answers at face value.‘ [Citation.] If other statements or attitudes suggest that the juror has ‗reservations or scruples‘ about imposing the death penalty, this demonstrated reluctance is a race-neutral reason that can justify a peremptory

challenge, even if it would not be sufficient to support a challenge for cause.‖ (People v. Lomax (2010) 49 Cal.4th 530, 572.) In sum, substantial evidence supports the trial court‘s determination that the prosecutor‘s strikes of Prospective Jurors J.R., R.W., and A.I. were motivated by the answers on their juror questionnaires indicating ambivalence about the death penalty. Our determination is additionally supported by the fact that at the time defendant made his Batson motion, the jury‘s racial composition exactly matched the venire‘s and by the fact that half of the jurors ultimately seated were black, a higher ratio than in the venire. This is a significant ― ‗indication of the prosecution‘s good faith in exercising his peremptories.‘ ‖ (People v. Huggins (2006) 38 Cal.4th 175, 236; see Cleveland, supra, 32 Cal.4th at p. 734.) For the first time on appeal, defendant identifies over two dozen unchallenged prospective jurors, three of whom ultimately served on the jury, who circled at least one ―don‘t know‖ answer to questions 32, 33, and 34. Assuming that defendant has not forfeited this argument by waiting until his reply brief to raise it, the comparative juror analysis he urges does not demonstrate that the strikes at issue were based on the jurors‘ race. First, the answers of the prospective jurors who never made it into the jury box are irrelevant because they do not prove that the prosecutor would have accepted such jurors. Nor is it relevant whether a prospective juror circled ―don‘t know‖ with respect to question 32, which asked whether a juror would always vote to impose the death penalty. Second, with respect to the three jurors who ultimately served on the jury, none circled ―don‘t know‖ in answer to both questions 33 and 34, and none took the step of indicating uncertainty in response to question 31(f), as Prospective Juror J.R. did. None wrote explicit comments akin to R.W.‘s indicating that he or she doubted the efficacy of the death penalty, nor did any give repeated equivocal

The Attorney General responds that defendant forfeited his claim that he was not properly charged in the indictment by failing to raise it at trial. Alternately, defendant impliedly consented to being tried with that enhancement by not objecting to the jury verdict form. The Attorney General also argues that the indictment reflects a mere ―technical inadequacy‖ because defendant was on notice of the prosecution‘s intent to charge him with willful, deliberate, and premeditated murder, both because count 2 alleged that defendant acted ―willfully‖ and because the grand jury transcript revealed the prosecutor‘s theory. As to the trial court‘s failure to properly instruct the jury, the Attorney General concedes the error but argues that the error was harmless beyond a reasonable doubt. Because we find that the trial court prejudicially erred in failing to instruct the jury on the meanings of ―willful,‖ ―deliberate,‖ and ―premeditated,‖ we do not address whether defendant consented to having those allegations placed before the jury. Assuming without deciding that defendant was properly charged with willful, deliberate, and premeditated murder, the trial court was required to instruct the jury on what those terms mean. The willful, deliberate, and premeditated nature of an attempted murder is ― ‗the functional equivalent of an element‘ ‖ of the offense insofar as it increases the punishment for an attempted murder. (People v. Seel (2004) 34 Cal.4th 535, 548.) As such, it must be submitted to a jury and proved beyond reasonable doubt. (Id. at p. 549; see Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) In turn, because the willful, deliberate, and premeditated nature of an attempted murder is the functional equivalent of an element of the offense, the trial court was required to instruct the jury on those elements even though defendant did not request such an instruction. (See, e.g., People v. Montoya (1994) 7 Cal.4th 1027, 1047 [―It is settled that, even in the absence of a request, a trial court must

instruct on general principles of law that are commonly or closely connected to the facts before the court and that are necessary for the jury‘s understanding of the case.‖].) Thus, the trial court erred in permitting the jury to consider the charge of attempted willful, deliberate, and premeditated murder without a proper instruction on what those terms mean. The failure to instruct the jury on an element of an offense is federal constitutional error because it violates the defendant‘s due process and Sixth Amendment rights to have a jury adjudicate guilt beyond a reasonable doubt. (People v. Gonzalez (2012) 54 Cal.4th 643, 662–663; People v. Bolden (2002) 29 Cal.4th 515, 560.) Such error is ―harmless only if, after conducting a thorough review of the record, the court determines beyond a reasonable doubt that the jury verdict would have been the same absent the error.‖ (Bolden, at p. 560; see Gonzalez, at p. 663; Chapman v. California (1967) 386 U.S. 18, 24.) On the facts here, we cannot be certain beyond a reasonable doubt that the jury would have found defendant guilty of attempted willful, deliberate, and premeditated murder had it been properly instructed. In order to find defendant guilty of that charge, the jury would have had to conclude that his acts were the result of ― ‗ ― ‗careful thought and weighing of considerations‘ ‖ ‘ ‖ rather than an ― ‗ ―unconsidered or rash impulse.‖ ‘ ‖ (People v. Manriquez (2005) 37 Cal.4th 547, 577 (Manriquez); see People v. Anderson (1968) 70 Cal.2d 15, 26–27; see also CALJIC No. 8.67.) That standard is not met by showing only that a defendant acted willfully and with specific intent to kill. ―By conjoining the words ‗willful, deliberate, and premeditated‘ in its definition and limitation of the character of killings falling within murder of the first degree the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a

specific intent to kill.‖ (People v. Thomas (1945) 25 Cal.2d 880, 900, italics added.) Latasha W. testified that defendant shot Coleman in the head at point-blank range shortly after entering Coleman‘s house and again before departing. But defendant did not take equally deliberate steps toward killing Latasha W. Instead, one of his confederates tied her up with a telephone cord. Then, only as defendant was on the verge of leaving the house, did he fire a shot at Latasha W. that grazed her ear. No doubt there is sufficient evidence from which a rational factfinder could infer that defendant acted with deliberation and premeditation. But the pertinent question here is whether there is no reasonable possibility that the jury could have concluded otherwise had it been properly instructed. The manner in which defendant shot Coleman and later, for good measure, shot him a second time plainly indicates that defendant killed him with deliberation and premeditation. But the manner in which defendant shot at Latasha W., while sufficient to support a finding of intent to kill, does not necessarily compel a finding that defendant fired the single shot at her as a result of ― ‗ ―careful thought and weighing of considerations‖ ‘ ‖ as opposed to an ― ‗ ― ‗unconsidered or rash impulse‘ ‖ ‘ ‖ just before exiting the home as his two accomplices waited outside. (Manriquez, supra, 37 Cal.4th at p. 577.) On these facts, we cannot say it would have been unreasonable for the jury, had it been properly instructed, not to find deliberation and premeditation. The Attorney General‘s argument that the jury likely relied upon the definition of the terms ―willful,‖ ―deliberate,‖ and ―premeditated‖ contained in the instructions regarding the murder of Haney is not persuasive. The court specifically instructed the jury to consider that instruction as ―to the Haney homicide charge only.‖ (Italics added.) We ―presume the jury followed the court‘s instructions.‖ (People v. Letner and Tobin (2010) 50 Cal.4th 99, 172.)

Furthermore, because the jury found defendant not guilty of the Haney murder, in which defendant was charged with both first degree and second degree murder, the jury would have had little cause to consider what the critical terms ―deliberate‖ and ―premeditated‖ mean in connection with that charge. Thus, when the jury was deliberating on the attempted murder charge, the only instructions it likely would have considered are the ones the court gave regarding regular attempted murder, which did not explain the standard for a finding of deliberation and premeditation. The Attorney General is similarly unpersuasive in her contention that the court‘s instructional error was harmless because the jury verdict form told the jurors that they should only find willfulness, deliberation, and premeditation if they could do so beyond a reasonable doubt. This contention simply begs the question as to what legal question the jury thought it was answering. Because the instructional error with respect to count 2 was not harmless beyond a reasonable doubt, we reverse the penalty enhancement under section 664, subdivision (a) for ―willful, deliberate, and premeditated‖ attempted murder. Defendant‘s conviction for attempted murder remains intact. Rather than remand for resentencing on the attempted murder conviction, we impose the lower term sentence of five years and permit the prosecution to request resentencing before the superior court within 60 days after the filing of our remittitur should it choose to do so. We recently followed the same approach in People v. Boyce (July 24, 2014, S092240) __ Cal.4th __. There, as here, we found an error that affected the noncapital portion of the sentence imposed upon a capital defendant. Recognizing that the length of the noncapital sentence would ―have little practical significance given our affirmance of the special circumstances and death sentence‖ and that there is considerable ―time and expense involved in resentencing a capital prisoner‖ (id. at p. ___ [p. 73]), we imposed the lower term sentence but permitted the prosecution to request resentencing (id. at pp. __, __

Defendant contends that the mere fact that the homicide occurred at an ATM is insufficient evidence to infer he had the specific intent to steal. He says there is no evidence that he demanded or reached for any of Foster‘s property either before or after the shooting. Thus, he contends, inferring the specific intent element of robbery is entirely speculative. We disagree. Time-lapse photographs from two cameras show defendant interacting with Foster for approximately 25 seconds before raising his gun to fire. During that time, defendant touched Foster‘s arm, brandished his gun, and stood by as Foster attempted to use the ATM. A trier of fact could reasonably infer from the totality of these circumstances that defendant had the specific intent to steal from Foster. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1129–1130 [jury‘s finding of an attempted robbery sufficiently evidenced by the totality of circumstances, even though attackers had not specifically demanded money or drugs], citing People v. Gilbert (1963) 214 Cal.App.2d 566, 567−568 [―where two armed men appeared in market shortly after closing time and simultaneously displayed their weapons,‖ lack of phrases such as ― ‗hand over your money‘ ‖ does not bar the reasonable inference that a forceful taking of property was intended‖].) (Rodrigues, at pp. 1129-1130.) For example, the jury could have reasonably inferred that defendant intended to rob Foster but fled after shooting him, knowing that Johnson and McGill would be summoning the police. (See People v. Zapien (1993) 4 Cal.4th 929, 984 [affirming a jury‘s reasonable inference that the defendant fled without completing the robbery because he knew someone had telephoned the police].) Alternatively, the jury could have reasonably found that defendant shot Foster because Foster refused to give him money, as evidenced by the possible argument between the two men, or because defendant realized that, having failed to use the ATM, Foster likely had no money to steal. (Cf. People v. Carroll (1970) 1 Cal.3d 581, 584−585 [finding that robbery and shooting of victim

The Attorney General does not argue that defendant invited any error by declining the trial court‘s offer to instruct on second degree murder. We therefore do not address whether counsel‘s conduct amounted to invited error. ― ‗ ― ‗[I]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury‘s understanding of the case.‘ [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]‖ ‘ ‖ (People v. Valdez (2004) 32 Cal.4th 73, 115 (Valdez).) The rule that juries must be instructed on lesser included offenses ― ‗prevents either party, whether by design or inadvertence, from forcing an all-or- nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither ―harsher [n]or more lenient than the evidence merits.‖ ‘ ‖ (People v. Smith (2013) 57 Cal.4th 232, 239–240 (Smith).) Because instructing on lesser included offenses serves to increase the accuracy of verdicts, the requirement to do so applies ― ‗even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.‘ [Citation.]‖ (Valdez, supra, 32 Cal.4th at p. 115.) ―On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.‖ (People v. Souza (2012) 54 Cal.4th 90, 113 (Souza).) ―For purposes of determining a trial court‘s instructional duties, we have said that ‗a lesser offense is necessarily included in a

greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.‘ ‖ (Smith, supra, 57 Cal.4th at p. 240, italics added.) When applying the accusatory pleading test, ―[t]he trial court need only examine the accusatory pleading.‖ (Id. at p. 244.) ―[S]o long as the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and so long as there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense.‖ (Ibid.) Here, under the accusatory pleading test, second degree murder was plainly a lesser included offense of felony murder as charged in count 8. Count 8 charged defendant with willfully killing Foster with malice aforethought. ― ‗Second degree murder is the unlawful killing of a human being with malice, but without the additional elements . . . that would support a conviction of first degree murder.‘ ‖ (People v. Taylor (2010) 48 Cal.4th 574, 623 (Taylor).) Thus, it is evident that second degree murder was a lesser included offense of felony murder as charged in count 8, which alleged not merely that defendant killed in the course of a robbery but that he did so willfully and maliciously. Accordingly, the trial court was required to instruct the jury on second degree murder so long as substantial evidence would have supported such a finding. We therefore need not and do not reach the question raised by the Attorney General of whether second degree murder is a lesser included offense of felony murder under the statutory elements test. The evidence of second degree murder in the Foster shooting, though not particularly strong, was sufficient to obligate the trial court to instruct on second degree murder. The ―substantial evidence requirement is not satisfied by ‗ ―any

evidence . . . no matter how weak‖ ‘ but rather by evidence from which a reasonable jury could conclude ‗that the lesser offense, but not the greater, was committed.‘ ‖ (People v. Avila (2009) 46 Cal.4th 680, 705.) The ATM video and witness testimony in this case established that a gunman approached Foster at the ATM. The two engaged in some sort of discussion (perhaps an argument), and Foster turned toward the ATM before being shot. As noted, this evidence was sufficient for the jury to infer that defendant was attempting to commit robbery. However, Manzanares testified that Foster and the gunman were arguing, and there was no evidence that defendant took any property or money from Foster after the shooting. As the trial court observed, ―I think a logical inference to be drawn is that the fellow was killed at the A.T.M. to try to get money. [¶] But that is not necessarily the only inference. [¶] You have some evidence, how strong it is is up to the jury, but you have evidence of some sort of an argument taking place, verbal argument.‖ Thus, the evidence permitted the inference that defendant shot Foster with malice in the course of an argument or fight, not necessarily in the course of a robbery. Because the evidence was sufficient to support a theory of second degree murder, the trial court should have instructed the jury on that theory. We nonetheless find the error harmless. Our precedent holds that an erroneous failure to instruct the jury on a lesser included offense is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837, and that evidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given. (See People v. Beames (2007) 40 Cal.4th 907, 970–971; People v. Breverman (1998) 19 Cal.4th 142, 176.) Here, there is no reasonable probability that the evidence of an argument between defendant and Foster, minimal as it was, would have led the jury, had it been

Officer Martinez first encountered Latasha W. at approximately 3:00 a.m. as she was ―running in the middle of the street yelling frantically . . . in hysterics . . . crying.‖ In response to defense questioning, Officer Martinez also testified that ―over the course of the two hours [Latasha W.] was able to calmly relate descriptions and things that went on in the house‖ in ―a chronological time and sequence of events. However, by the end of the two hours, she was ―shocked still‖ and was crying and shaking from the ordeal. Concluding that the prosecution had established that Latasha W.‘s statements were excited utterances or spontaneous declarations, the trial court overruled four hearsay objections to Officer Martinez‘s testimony. b) Analysis Under the spontaneous declaration hearsay exception, hearsay testimony is admissible if it ―(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.‖ (Evid. Code, § 1240.) ― ‗To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.‘ ‖ (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) ―When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.] But . . . ‗[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the

statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.‘ ‖ (Id. at p. 319.) ―Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity.‖ (Ibid.) ―Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.]‖ (Poggi, supra, 45 Cal.3d at p. 318.) Thus, if supported by substantial evidence, we must uphold the trial court‘s determination of preliminary facts. (People v. Brown (2003) 31 Cal.4th 518, 541.) Defendant argues that Latasha W.‘s statement to Officer Martinez did not meet the second Poggi requirement, i.e., the declaration was not made while Latasha W.‘s reflective powers remained in abeyance. We disagree. When Officer Martinez first encountered Latasha W., after she had run from Coleman‘s residence, she was ―crying,‖ ―flinging her arms [and] screaming loud[ly],‖ ―[f]rightened,‖ ―[h]ysterical,‖ ―[v]ery emotional,‖ and ―[s]peaking very rapidly.‖ At the end of the approximately two hours she spent with Officer Martinez, Latasha W. ―was shocked . . . [a]nd still shaking by the ordeal.‖ Thus, the trial court did not abuse its discretion in finding that the two-hour period of time during which Latasha W. made her statements did not deprive them of their spontaneity. (See, e.g., People v. Brown, supra, 31 Cal.4th at p. 541 [statements made two and one-half hours after event held spontaneous where ―the declarant continued to labor mightily under the emotional influence of the disturbing events he perceived, so much so that he could not stop his body from shaking nor stem the flow of tears‖].) Defendant relies on People v. Lynch (2010) 50 Cal.4th 693, where we held that a victim‘s statements made approximately two hours after she was attacked

Second, Dr. Cotton testified that her conclusions were the same as those reached by the analysts who prepared the X-ray films, although no reports by those analysts were introduced into evidence. In Crawford, supra, 541 U.S. 36, the high court held that criminal defendants have a constitutionally protected right to cross-examine any witness whose testimonial hearsay is offered against them. (See id. at pp. 50–56.) In a series of decisions applying Crawford to the introduction of scientific evidence, shifting majorities of the high court have variously defined what makes hearsay testimonial. (See Melendez-Diaz, supra, 557 U.S. at pp. 310–311 [lab analysts‘ affidavits describing results of testing they performed were testimonial hearsay]; Bullcoming, supra, __ U.S. at p. __ [131 S.Ct. at p. 2717] [lab analyst‘s certification as to his lab results, which complied with specific state laws for admission of lab reports into evidence, was testimonial hearsay]; Williams, supra, __ U.S. at p. __ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.); id. at p. __ [132 S.Ct. at p. 2225 (conc. opn. of Thomas, J.) [holding that an expert witness could testify based on her assumption that unsworn results received from a DNA lab were accurate, but disagreeing as to whether the unsworn nature of the data relied on by the witness or the fact that the testimony was conveyed by an expert was the reason the lab tests were not testimonial].) Like many courts around the country, we have struggled to interpret and apply the high court‘s confrontation clause cases. Nonetheless, a few rules emerge from our cases. First, the introduction of machine-generated data does not implicate the confrontation clause because ―unlike a person, a machine cannot be cross-examined.‖ (People v. Lopez (2012) 55 Cal.4th 569, 583 (Lopez).) Second, an expert witness‘s reliance on statements or reports by other individuals that ―merely record objective facts‖ do not implicate the confrontation clause because ―[s]uch observations are not testimonial in nature.‖ (People v. Dungo (2012) 55

Cal.4th 608, 619 (Dungo) [holding that a pathologist‘s ―statements describing . . . anatomical and physiological observations about the condition‖ of a body upon which an autopsy was being performed were not testimonial].) Finally, we have held that a lab technician‘s act of initialing a report describing actions he or she has taken with respect to a particular lab test is insufficient to convert that report into a testimonial statement because initialing lacks the requisite formality, absent (at the least) a signature, certification, or other form of swearing to the truth. (Lopez, at pp. 584–585.) Dr. Cotton‘s testimony regarding the opinions of the other analysts may have violated defendant‘s right to confront those analysts, although it is difficult to assess this claim because those analysts‘ reports are not in the record. However, any error that may have occurred would be harmless because Dr. Cotton testified that she independently reviewed the X-ray films and concluded from those films that defendant could not be excluded as a match to the sperm portion of the sample. Dr. Cotton testified as an expert witness observing objective scientific data — the X-ray film output of a DNA test. Defendant does not suggest that the X-ray films that Dr. Cotton relied on, which were not introduced into evidence, were formally attested to by the Cellmark analysts or that they conveyed anything other than objective scientific data. Thus, under Lopez and Dungo, defendant has not demonstrated that Dr. Cotton‘s testimony as to her own conclusions based on the X-ray films violated defendant‘s right to cross-examination. (See Dungo, supra, 55 Cal.4th at p. 619; Lopez, supra, 55 Cal.4th at pp. 570–571.) Although Dr. Cotton‘s testimony about her own conclusions may have been slightly bolstered by the constitutionally dubious portion of her testimony about other analysts‘ conclusions, any error that may have occurred was harmless beyond a reasonable doubt. Defendant was unable to seriously impeach Dr. Cotton‘s expert

Defendant was absent from another pretrial conference on April 21, 1998. The bailiff informed the trial court that defendant had ―overdosed on something.‖ The court then denied a defense motion to delay trial, which appears to have been based not on defendant‘s overdose but on defense counsel‘s needing to do ―some other things . . . that I have just found out about.‖ On May 4, 1998, defendant was absent from yet another pretrial conference. Defense counsel informed the court that defendant had recently been hospitalized after another suicide attempt, although the bailiff informed the court that defendant was in his cell but refusing to come to court. Seemingly in response to the similarity between the judge‘s name (Horan) and the last name of an officer at the jail (Herran) who spoke to the bailiff, the trial court quipped, ―I was working last night over there [at the jail]‖ and ―Who else is going to think there is a conspiracy going on with Mr. Banks?‖ On August 3, 1998, the day pretrial preparations were scheduled to begin, defendant was absent. The bailiff informed the court that defendant ―took 20 pills and they had to pump his stomach this morning and . . . he will be listed day to day.‖ The court stated that defendant ―seems to want to come to court when he wants to come to court and when he does not, he doesn‘t. [¶] He either injures himself, although none of his injuries are life threatening. [¶] He comes sometimes and other times he does not. [¶] The sad fact is that we have to try this case at some point.‖ Defense counsel told the court she was ―concerned about the court‘s characterization. [¶] Mr. Banks is mentally ill. [¶] He is brain damaged and mentally ill and he doesn‘t understand and work on the same level that we do and most of the other defendants do. [¶] He has had a long, long history of suicide attempts, not just since this case has happened. [¶] He has had a long history of doing damage to himself.‖

―Apparently unsuccessfully,‖ the court responded. After another brief colloquy with defense counsel, the court discussed defendant‘s ―attempts, as you want to characterize them, I would not characterize them as suicide attempts. [¶] If a guy has been trying to kill himself his entire life, one would suspect that one would succeed. [¶] I am not trying to minimize your client‘s problems. I assume he has problems. But when he has a court date that he does not want to make, his so-called attempts seem to coincide with my court calendar.‖ The court then told defense counsel to inform her client that ―the court will consider his next medical problem that is self-induced to be an attempt to delay this trial.‖ And ―if the law — if I conclude that the law allows me to proceed [in defendant‘s absence], I will.‖ Otherwise, ―what I will do is explain to the jurors the reason for their inconvenience and use the same bunch and tell them that: ‗The defendant will not come to court from jail and, therefore, folks, we have dragged you down here and will have to ask your indulgence,‘ because I am not going to play a game wherein we keep ordering up and have — go to the trouble of bringing 150 — I think it is 150 — people into the courtroom while we wait patiently for the defendant to feel like coming.‖ The next day, defendant was transported to court and made it as far as lockup. But the bailiff explained to the court that when he went to bring defendant to the courtroom, defendant told the bailiff ―he needs his medication and that his jaw is locking up because he needs his medication and he needs to go and he requested paramedics.‖ Defense counsel then informed the court that she had relayed the court‘s warnings to defendant and that he had told counsel that he was ―starting to feel ill‖ and explained that ―when they pumped his stomach, they give him certain medications and it locks up his jaw and it was starting — and he was starting to get dizzy and did not feel well.‖

The court stated: ―It seems that while I don‘t doubt that the defendant may have some problems that are beyond the ability of this court to diagnose, it seems, again, that the bulk of his problems revolve around his court dates. [¶] His ‗suicide attempts,‘ all of which have been fruitless, revolve around his court dates. [¶] His refusal to come to court on certain occasion, it has not been the matter of a suicide attempt or medication or anything else other than Mr. Banks notifying deputies at the county jail that he refuses to come in and I have not ordered a cell extraction.‖ Counsel noted that defendant had made additional suicide attempts, not coinciding with his court dates, of which the court had not been apprised, and she requested that defendant be seen by a psychologist at the University of Southern California (USC). The court responded that ―[t]here is not a thing wrong with this fellow when he is in court. [¶] He is responsive and is like any other defendant that I have ever seen. [¶] The problem is getting him into a courtroom. [¶] Once he is in court he is controllable. [¶] Nothing will happen in this courtroom, guaranteed.‖ After hearing argument from the prosecution, the court concluded by noting that the jury was set to arrive the following day and ordered defendant to be there. The court said that it would ―contact the county jail and explain that we are going to have [defendant] here tomorrow.‖ The following morning, August 5, 1998, defendant was not present because, according to the bailiff, he ―was saying that he is too sick to come to court.‖ The court stated that it ―spent about three hours yesterday, after counsel left, speaking to the doctors at the county jail, specifically the medical doctor who is in charge of the county jail medical system, Dr. Clark. [¶] He, at the court‘s request, became personally involved in the case and spoke directly to Dr. Ortego . . . at the men‘s central jail health staff. [¶] It is the opinion of Dr. Ortego that in spite of his suicidal gestures that Mr. Banks is not a serious threat, i.e., re suicide,

overdose that required his stomach to be pumped) as malingering or recalcitrance, and threatened to inform the jury accordingly, without consulting a mental health expert. When the court eventually did consult a mental health professional, the court reported information from ex parte off-the-record conversations with prison medical staff without indicating whether the physicians in question were directly responsible for defendant‘s care. A better course would have been to conduct a hearing on the issue or to have defendant examined by a court-appointed psychiatrist, as urged by defense counsel. (Cf. People v. Lewis (2006) 39 Cal.4th 970, 994 [court properly concluded defendant was feigning mental incompetence where such a finding ―w[as] supported by the record, including expert testimony introduced at a hearing on [the defendant‘s] competence‖].) Nevertheless, defendant does not argue that the court violated state or federal law in its attempts to secure defendant‘s attendance, or that it violated state or federal law by holding preliminary hearings in his absence or by engaging in ex parte communications with prison medical staff. His only argument is that the court‘s comments demonstrate bias against defendant that infected the entire trial. We do not agree that the court‘s skepticism as to the reasons for defendant‘s pretrial absence demonstrated bias toward any facet of defendant‘s guilt phase case, in which defendant did not assert any mental health-based defenses. (See People v. Guerra (2006) 37 Cal.4th 1067, 1112 [―adverse or erroneous rulings, especially those that are subject to review, do not establish a charge of judicial bias‖].) Rather, the court‘s comments reflected frustration with the disruptions caused by defendant‘s repeated absences. Nothing suggests that the court developed a generally antagonistic stance toward defendant that bled into some other facet of the guilt phase trial. Equally important, defendant does not demonstrate any way in which the court‘s pretrial comments impacted the jury. (See People v. Sturm (2006) 37

she posed to Dr. Cotton. Defense counsel defended her conduct but did not object to the court‘s comments to the jury or request a specific admonition with respect to them. As to any claim that the particular remark, on its own, constituted judicial misconduct sufficient to warrant reversal, that claim is forfeited by defendant‘s failure to object. A claim of pervasive judicial bias does not necessarily require an objection to be preserved because such an objection may be futile, but ―[a]s a general rule,‖ isolated ―judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial.‖ (Sturm, supra, 37 Cal.4th at p. 1237.) We therefore consider defendant‘s claim only for purposes of determining whether it demonstrated pervasive judicial bias against defendant. A trial court must avoid making ―comments implying that defense counsel was behaving unethically or in an underhanded fashion‖ in front of the jury. (Sturm, supra, 37 Cal.4th at p. 1241.) Here, when defense counsel alleged that ―the prosecution indicated they didn‘t like the statistics‖ from the initial test, the court properly admonished defense counsel against assuming facts not in evidence. However, the court‘s remark — ―They tested several loci and stopped, were asked to do more and said fine and kept going and kept up with their results. [¶] So please, counsel, I assume you understand and please do not ask questions that misstate the evidence in the case . . . .‖ — arguably implied that defense counsel made an allegation that she knew to be specious, when in fact there had been no evidence up to that point, one way or the other, as to why Dr. Cotton‘s lab had been ―asked to do more.‖ But whether or not this particular admonition of defense counsel was improper, this isolated incident does not support defendant‘s claim that the trial court was pervasively biased against him. Defendant relies primarily on Sturm, where we reversed a conviction due to the trial court‘s pervasive misconduct.

The contents of the bag wound up on the counsel tables and on the bench. According to the court, defendant said, ― ‗I‘m done,‘ or ‗That‘s it,‘ or some words indicating that he was not interested in fighting and he went with the bailiff into lock up.‖ The court then said that ―this is a long history with Mr. Banks, not this particular behavior, but coming to court when he pleases and things of this nature and refusing to come and the court having to get orders to remove him from the cell and playing those games with him. [¶] We will not continue to play the games with Mr. Banks. [¶] My intention is to have Mr. Banks far removed from the proceedings until concluded.‖ The next day the court reiterated this ruling after hearing defense counsel‘s argument that defendant‘s behavior may have been attributable to his not being medicated. In reaching this conclusion, the court determined that it could not ―think of a restraint, short of absolute mummification, which I don‘t propose, that would protect the participants and the integrity of the trial.‖ Later that day, the court had defendant brought to the courtroom, explained its ruling, and asked defendant if he wished to have speakers installed in the lockup to allow him to hear the proceedings. The court allowed defendant to confer with counsel but denied his request for ―a few minutes alone‖ with her. When defendant then refused to answer whether he wanted a speaker, the court ordered him escorted out of the courtroom, at which point defendant responded ―Shut up‖ and spat on the trial judge from approximately 12 feet away. The trial court said that if either party believed appellant‘s presence to be necessary in order to give testimony or to be identified by other witnesses, that party could so move, and the court would hear arguments on whether and how to make appropriate arrangements. Defense counsel never moved for defendant to be readmitted to the courtroom during the penalty phase retrial, and defendant did not

or not a broadly worded, general warning to a defendant at the outset of trial is ordinarily sufficient to justify excluding the defendant for any subsequent misconduct, the trial court did not abuse its discretion in failing to give defendant additional warnings under these unique and egregious circumstances. It is difficult to imagine conduct more repugnant to the orderly conduct of a trial or more disrespectful of the dignity of the courtroom and its participants than defendant‘s act of throwing a bag of excrement and urine at the trial judge. Moreover, we agree with the trial court‘s observation that the degree of premeditation involved in creating and hiding the projectile in question belies any claim that his actions reflected a momentary lapse of impulse control. Any remaining doubt as to defendant‘s ability or willingness to control his behavior was dispelled the next day, when defendant spat on the judge from 12 feet away. Defendant‘s purposeful defilement of the courtroom went much farther than more typical types of misconduct, such as verbal disruptions or abusive language, that might call for a specific warning before a defendant is excluded from trial. (Cf. People v. Medina (1995) 11 Cal.4th 694, 739 [defendant was properly excluded for verbal disruptions where ―[t]he court repeatedly made it clear to defendant that he would continue to be removed if his disruptive conduct persisted . . . .‖].) Defendant cannot seriously claim that he lacked ―full knowledge and appreciation‖ that his extreme misconduct would likely result in his exclusion from the courtroom. (People v. Sully (1991) 53 Cal.3d 1195, 1239.) We also reject defendant‘s suggestion that the trial court erred in failing to consider less restrictive measures such as shackling. That claim is forfeited because defense counsel never asked the court to consider such measures. Instead, counsel suggested a delay of trial to determine what medications her client was taking. But even if the claim were not forfeited, Allen makes clear that a trial court does not commit constitutional error when it opts to exclude a defendant

have said that at the penalty phase of a capital case ―evidence [i]s relevant and admissible insofar as it suggest[s] that defendant had sought and/or been denied treatment which might have controlled the same dangerous personality disorder that purportedly contributed to the instant crimes. The jury could reasonably view such fact as bearing on defendant‘s moral culpability. (See People v. Ramirez (1990) 50 Cal.3d 1158, 1173.)‖ (People v. Mickle (1991) 54 Cal.3d 140, 193; see People v. Thornton (2007) 41 Cal.4th 391, 457–458 [recognizing defendant‘s institutional failure defense]; In re Lucas (2004) 33 Cal.4th 682, 718–719 [similar].) Thus, the trial court abused its discretion in prohibiting defendant from presenting evidence that the correctional facilities in which he was housed failed to diagnose and treat his neurological problems. However, the Attorney General is correct that this error was harmless. The following testimony was excluded as a result of the court‘s erroneous order: (1) Dr. Weisberg was not allowed to answer a question posed by counsel as to whether CYA followed his recommendations that defendant receive neurological testing and intensive treatment; (2) defense counsel was not allowed to elicit testimony from Dr. Mansoori that he recommended neurological testing that would have been available at a different CYA facility than the one where defendant was housed; and (3) defendant did not elicit testimony from protective services worker Juanita Terry about any possible institutional failure. But defendant made no offer of proof that any of the witnesses would testify that had he received the recommended testing and treatment, he might have turned out to be a less violent adult. Nor did defendant proffer such evidence from Dr. Gold, the neurological expert who diagnosed his organic brain damage. In fact, the only evidence on the subject was to the contrary. Another defense expert, Dr. Osborne, testified that defendant had often failed to take medication prescribed to him over the years. Dr. Osborne also testified that

Here, the prosecutor clearly elicited expert testimony from Dr. Osborne as to defendant‘s future dangerousness and then relied on defendant‘s future dangerousness in closing argument. However, the Attorney General suggests that such questioning was proper because defense counsel opened the door by eliciting expert testimony that defendant might behave well in prison. We agree. ― ‗While the prosecution is prohibited from offering expert testimony predicting future dangerousness in its case-in-chief [citation], it may explore the issue on cross-examination or in rebuttal if defendant offers expert testimony predicting good prison behavior in the future.‘ ‖ (People v. Jones (2003) 29 Cal.4th 1229, 1260.) Here, defense counsel did not necessarily open the door to questions about defendant‘s future dangerousness by asking merely whether any medication existed to treat defendant‘s condition. Nor can we say that defendant opened the door to questions about his dangerousness in prison based on the court’s own questioning as to whether defendant might receive treatment in prison. But instead of objecting to the court‘s line of questioning, defense counsel extended it by asking Dr. Osborne what type of medication would be made available to defendant and eliciting testimony that he might receive Haldol, a medication referred to as the ―baseball bat.‖ Because the clear implication of this testimony was that defendant‘s behavior could be controlled in prison, the trial court did not abuse its discretion in allowing the prosecution to elicit testimony about defendant‘s future dangerousness in prison. (See People v. Gates (1987) 43 Cal.3d 1168, 1211, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459 [cross-examination on future dangerousness permitted because the ―clear implication‖ of the expert‘s direct testimony was that defendant would be a well-behaved prisoner]; see also Jones, supra, 29 Cal.4th at pp. 1260–1261; People v. Ochoa (1998) 19 Cal.4th 353, 462.) For the same

to his right temporal lobe. Dr. Osborne concluded that his own diagnosis was ―completely consistent with the theory of underlying brain damage.‖ Furthermore, ―[t]emporal lobe damage is also consistent with antisocial personality disorder type behavior that Mr. Banks exhibits. [¶] They interact together. . . . [¶] What happens with the kind of physical damage, brain damage, that we are talking about is it affects broadly impulse control. [¶] It affects aggressive impulses and sexual impulses. And these are the kinds of behaviors, sexual behaviors, aggressive behaviors, that also contribute to a diagnosis of antisocial personality disorder. [¶] So you get an added effect one on top of the other.‖ Dr. Osborne also explained the procedures he used when diagnosing defendant with APD. He relied on the documentation of defendant‘s past behavior since age nine, including defendant‘s behavior while in protective services and group homes. Defense counsel then asked whether defendant was born with APD. Dr. Osborne responded: ―That is a new answer for me to be able to give. [¶] We have suspected for a long time, in fact the [fourth edition of the Diagnostic and Statistical Manual of the American Psychiatric Association], as I said was published in 1994 and has several statements that say: [¶] We believe this, or it is assumed or presumed that this travels in families. [¶] In 1995, there was a cluster of research articles that was published in Archives of General Psychiatry, which I find very persuasive, that shows that, in fact, this is a genetically inherited problem.‖ Defense counsel then asked, ―What was it about Kelvyn‘s genetic make up [sic] that you felt that that was part of the diagnosis?‖ Although the prosecution did not object, the court interrupted the testimony, excused the jury, and instructed counsel that it would hold a Kelly/Frye hearing the following day to determine the admissibility of evidence that APD is hereditary. (See People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013 (Frye).)

At the Kelly/Frye hearing the next day, the prosecution for the first time raised its own concerns about Dr. Osborne‘s testimony that APD may be hereditary. The court then heard testimony from Dr. Osborne regarding the acceptance in the psychological community of the view that APD is hereditary. After reviewing numerous articles and reports on APD‘s inheritability, the court ruled that the heritability testimony was inadmissible. The court explained its ruling: ―This testimony is inadmissible, I believe, on a number of grounds. [¶] When I say ‗this testimony‘, I am referring to this testimony having to do with A.P.D., its inheritability, opinions by your expert of its potential heritability, opinions by your expert that your client may have inherited to some degree the propensity for this condition, i.e., to commit criminal conduct, the opinions that his parents suffered from this [¶] . . . [¶] disorder. [¶] The opinions that Kelvyn‘s parents suffered or suffer from this same malady since there is absolutely no foundation whatsoever in this record showing that opinion and any testimony having to do with this witness‘ opinions on those areas seem to me to be wholly without foundation, without relevance, to be so vague as to invite rampant speculation in the jury to have the great potential to mislead this not educated for the most part jury.‖ The court continued: ―It does nothing but tell the jury what everybody knows. If you come from a bad background or have bad parents, you may turn out that way yourself. [¶] If the doctor wants to testify that oftentime if a person comes from a background that may be seen as less than ideal, i.e., a father who is not there, as apparently Mr. Banks‘ father was absent, that seems to be the great correlator in my experience, but if he wants to testify that Mr. Banks‘ father was not there, his mother was inept, and I would concur, she was inept in the extreme, a drunk and drug abuser and just does not have it together, if he wants to testify

struck because Dr. Osborne lacked any foundation for his view that APD is hereditary and because that belief infected his entire diagnosis. A claim that expert opinion testimony was improperly admitted or excluded is reviewed on appeal for abuse of discretion. (See People v. Catlin (2001) 26 Cal.4th 81, 131.) The Kelly/Frye rule ―conditions the ‗admissibility of expert testimony based upon the application of a new scientific technique‘ on a ‗preliminary showing of general acceptance of the new technique in the relevant scientific community.‘ ‖ (People v. Rowland (1992) 4 Cal.4th 238, 265, quoting Kelly, supra, 17 Cal.3d at p. 30; see Frye, supra, 293 Fed. at p. 1014.) However, we have said that expert psychological testimony diagnosing a defendant as suffering or not suffering from a particular disorder after conducting standard personality testing ―is not subject to Kelly/Frye,‖ at least ―absent some special feature which effectively blindsides the jury.‖ (People v. Stoll (1989) 49 Cal.3d 1136, 1157 (Stoll); see People v. Smithey (1999) 20 Cal.4th 936, 967; People v. Eubanks (2011) 53 Cal.4th 110, 140.) If some portion of the expert‘s diagnosis is based on an unacceptable procedure or technique, ―the witness may be allowed to ‗state his opinion after excluding from consideration the matter determined to be improper.‘ ‖ (Stoll, at p. 1155, fn. 19.) Here, the trial court held a Kelly/Frye hearing to determine only whether the heritability of APD is an established scientific theory or process. The prosecution told the court it had no issue with the remainder of Dr. Osborne‘s APD testimony. The trial court concluded that testimony regarding APD‘s heritability would not satisfy the Kelly/Frye test. As noted, defendant does not challenge that ruling. In subsequently striking Dr. Osborne‘s entire APD diagnosis, the trial court abused its discretion. A diagnosis of APD involves no ―special feature which effectively blindsides the jury.‖ (Stoll, supra, 49 Cal.3d at p. 1157.) To the

contrary, both Dr. Osborne and Dr. Weisberg before him testified that APD is a well-recognized form of mental illness that was included in the then-current edition of the Diagnostic and Statistical Manual of Mental Disorders, the leading treatise on psychological conditions. We have recognized that such testimony is routinely presented in capital cases. (See People v. Hines (1997) 15 Cal.4th 997, 1065 [collecting cases].) The Attorney General acknowledges that psychological diagnoses are not typically subject to exclusion under Kelly/Frye but argues that Dr. Osborne‘s APD diagnosis ―rel[ied] on a genetic component, which is a new scientific basis for the diagnosis.‖ Contrary to the Attorney General‘s assertion, however, it is not clear that Dr. Osborne‘s diagnosis relied on genetics. He testified that his diagnosis was based primarily on defendant‘s ―past behavior.‖ He later agreed with the statement that ―in com[ing] to that diagnosis,‖ he ―look[ed] at the type of people [defendant‘s] parents were.‖ But that testimony does not establish whether Dr. Osborne‘s diagnosis was based on nature or nurture. As the trial court recognized, parental influence is a proper basis for reaching a psychological diagnosis. It is true that after initially stating that he had relied on defendant‘s past behavior in reaching his diagnosis, Dr. Osborne further testified that there was new scientific evidence that APD is hereditary. But nowhere did he indicate that his diagnosis was based on that new scientific evidence. The record does not indicate one way or the other whether Dr. Osborne relied on genetics in diagnosing APD because the trial court struck his testimony about APD in its entirety instead of allowing him to answer a question by defense counsel that might have clarified the matter: ―What was [sic] some of the characteristics that his parents had that had an influence on Kelvyn?‖ Moreover, even if Dr. Osborne‘s diagnosis had been based in part upon defendant‘s genetic makeup, Dr. Osborne should have been permitted to ― ‗state his opinion after

excluding from consideration the matter determined to be improper.‘ ‖ (Stoll, supra, 49 Cal.3d at p. 1155, fn. 19.) In other words, Dr. Osborne should have been allowed to testify whether he would have diagnosed defendant with APD in the absence of any assumptions about its heritability. Thus, the trial court‘s order striking all of Dr. Osborne‘s APD testimony was an abuse of discretion. The error, however, was harmless. First, Dr. Weisberg gave very similar testimony. He defined APD and explained that defendant had ―antisocial personality traits.‖ Dr. Weisberg was unable to diagnose defendant with APD due to defendant‘s age at the time of the examination. But he had diagnosed defendant with a conduct disorder that is the analog of APD for juveniles. Second, the jury heard the rest of Dr. Osborne‘s testimony that defendant suffered from other mental illnesses. It also heard Dr. Gold‘s testimony that defendant had organic brain damage. The jury did not find that evidence to outweigh the aggravating factors in this case. It is not plausible that the jury would have reached a different conclusion had it been able to consider testimony that defendant also suffered from one additional nonhereditary mental illness, an illness that, according to Dr. Osborne, is characterized primarily by the fact that the individual engages in ―a pervasive pattern of disregard for and violation of the right of others‖ and affects ―80 percent of the people in the prison systems.‖ In fact, it is often the case that prosecutors seek to establish that a defendant suffers from APD. (See, e.g., People v. Mills (2010) 48 Cal.4th 158, 207 (Mills); People v. Alfaro (2007) 41 Cal.4th 1277, 1327.) Here, at the first penalty phase trial, it was the prosecutor who attempted to elicit testimony that defendant had APD. We therefore conclude that there is no reasonable possibility that defendant was prejudiced by the trial court‘s exclusion of Dr. Osborne‘s testimony that defendant suffered from APD.

the offense, is admissible at a penalty retrial as a factor in mitigation under section 190.3.‖ (Hamilton, supra, 45 Cal.4th at p. 912.) In applying section 190.3, we have cautioned that a defendant may not ― ‗relitigate‘ ‖ the guilty verdict during the penalty phase, meaning that ―a defendant may not contest ‗the legality of the prior adjudication.‘ ‖ (People v. Gay (2008) 42 Cal.4th 1195, 1223 (Gay).) But the fact that ― ‗the defendant cannot relitigate the issue of guilt or innocence . . . does not preclude the admission of evidence relating to the circumstances of the crime or the aggravating or mitigating circumstances, including evidence which may mitigate a defendant‘s culpability by showing that he actually did not kill the victim.‘ ‖ (Ibid.) Thus, at least in cases in which the jury that decides the penalty did not adjudicate the defendant‘s guilt, we have said it ― ‗ ―is certainly the rule that if the evidence would have been admissible on the trial of the guilt issue, it is admissible on the trial aimed at fixing the penalty.‖ ‘ ‖ (Id. at p. 1221, quoting People v. Terry (1964) 61 Cal.2d 137, 143, fn. 1.) Under this rule, the trial court erred in concluding that defendant was not permitted to introduce lingering doubt evidence as to whether he was correctly identified by eyewitnesses in the Foster and Coleman crimes. Indeed, the Attorney General concedes that the trial court erred. The error, however, is not one of federal constitutional dimension. (See Hamilton, supra, 45 Cal.4th at 911; Oregon v. Guzek (2006) 546 U.S. 517, 525–526.) Nor was the error prejudicial in this case. We have said as a general matter that ― ‗residual doubt is perhaps the most effective strategy to employ at sentencing.‘ ‖ (Gay, supra, 42 Cal.4th at p. 1227.) But here, the evidence of defendant‘s innocence was so weak as to be nearly nonexistent. As to the killing of Coleman and the Latasha W. crimes, defendant could have introduced evidence that Latasha W. inconsistently described his complexion and the color of his shoes, and that she initially identified another individual as

Thus, his objection is forfeited. (See Carter, supra, 30 Cal.4th at pp. 1203–1204.) Similarly, defendant‘s objection to Deputy Penate‘s testimony about the graffiti in his cell is forfeited because defendant did not object to that testimony. Defendant did object to Deputy Penate‘s testimony regarding his conversations with defendant prior to and following the assault and his testimony that defendant routinely manipulated prison guards. We therefore address the merits of those claims. We agree with the Attorney General that the testimony about defendant‘s conversations with Deputy Penate was admissible. Clearly, Deputy Penate‘s testimony about defendant‘s assault upon him with a container filled with urine and feces was admissible. Deputy Penate‘s testimony about his conversations with defendant revealed defendant‘s motive for that assault and showed that defendant acted intentionally and with forethought. Specifically, the testimony established that defendant had a grudge against Deputy Penate and that defendant viewed the assault as a way to teach Deputy Penate to respect him. This evidence was relevant because it informed the jury‘s determination of what weight to assign to defendant‘s prior violent criminal conduct. (See People v. Kipp (2001) 26 Cal.4th 1100, 1135; People v. Lewis (2001) 25 Cal.4th 610, 672; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1013–1014, disapproved of on other grounds by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; People v. Tuilaepa (1992) 4 Cal.4th 569, 588.) Contrary to defendant‘s contention, admitting this testimony does not ―open the door to essentially unlimited, speculative testimony about defendant‘s behavior and character in the guise of ‗circumstances‘ of any factor (b) offense offered as aggravation.‖ The admissible portion of Deputy Penate‘s testimony was not a freewheeling discussion of defendant‘s conduct in prison. It merely described the discrete interactions that directly led to defendant‘s assault against Deputy Penate.

However, we agree with defendant that Deputy Penate‘s testimony about defendant‘s attempts to manipulate prison officers was inadmissible bad character evidence and should have been excluded. This testimony bore no relation to the circumstances of defendant‘s assault against Deputy Penate. Indeed, the prosecutor‘s questioning makes clear that he repeatedly sought to have Deputy Penate testify to defendant‘s general reputation and behavior as an inmate. For example, the prosecutor asked: ―This [manipulating people] isn‘t an infrequent thing with Mr. Banks?‖ ―If he does not get what he wants, he acts out in some fashion?‖ ―You say that he continuously manipulates and tries to control other deputies[?]‖ ―Does Mr. Banks do particular things on days he is supposed to go to court to get additional favors?‖ These broad questions were not calculated to elicit information about the circumstances leading up to the assault. The Attorney General contends that this testimony was admissible because it was rebuttal to defense counsel‘s cross-examination of Deputy Penate, in which counsel asked Deputy Penate whether he was aware that defendant had been diagnosed as mentally ill. But Deputy Penate repeatedly testified that he knew nothing about defendant‘s mental health, and the court struck a question by defense counsel that assumed defendant suffered from organic brain damage. Thus, at the time of cross-examination, there was no testimony by Deputy Penate about defendant‘s mental health to rebut. To the contrary, Deputy Penate had testified that he had no access to defendant‘s medical files and was not qualified to speak to his mental health in any case. Thus, the trial court abused its discretion in permitting Deputy Penate to testify at length about defendant‘s manipulative character. (See, e.g., Boyd, supra, 38 Cal.3d at p. 778 [finding error in trial court‘s admission of testimony about a defendant‘s reputation for violence even though that ―reputation may be well deserved‖ and ―the result of one‘s behavior in the community‖].) But the error

childhood thefts would not likely prejudice defendant given his extensive violent criminal history. We agree with defendant that the testimony about his nonviolent childhood criminal acts should not have been admitted. We have repeatedly held that ―[e]vidence that a defendant suffered abuse in childhood generally does not open the door to evidence of defendant‘s prior crimes or other misconduct. [Citations.] We do not believe that evidence of specific acts of abuse inflicted on [defendant] in early childhood would permit rebuttal with evidence of his subsequent misconduct . . . . And evidence and argument intended to demonstrate that [the defendant] justifiably was abused in the manner he was, because he was a bad boy at the age of five or six years, would be unlikely to carry much weight in the prosecution‘s favor with the jury.‖ (In re Lucas, supra, 33 Cal.4th at p. 733; see People v. Loker (2008) 44 Cal.4th 691, 709; People v. Ramirez (1990) 50 Cal.3d 1158, 1193 [holding that defendant did not open the door to the prosecutor questioning defendant‘s mother about his teenage criminal conduct by eliciting testimony about abuse during his early childhood].) Likewise here, defendant introduced evidence that he was abandoned and abused by his mother during his early childhood. This testimony did not open the door to the prosecutor‘s introduction of evidence that defendant committed nonviolent offenses three to four years later. (See, e.g., In re Lucas, supra, 33 Cal.4th at p. 733.) Nor does the trial court‘s reasoning that the testimony in question was not overly prejudicial provide a basis for admitting the testimony. The Attorney General correctly does not defend this logic. Our case law prohibiting admission of nonviolent childhood criminal conduct does not exempt evidence that a trial court deems not prejudicial. We therefore conclude that the trial court abused its discretion in allowing the prosecutor to elicit evidence of defendant‘s nonviolent childhood criminal offenses.

imposed would constitute emotional responses ‗untethered to the facts of the case‘ [citation], not proper factors for consideration.‖ (People v. Harris, supra, 37 Cal.4th at p. 355.) However, defendant contends that by suggesting that counsel was acting illegally and unethically, the trial court‘s reprimand unnecessarily disparaged counsel, thereby denying defendant his state and federal constitutional rights to a fair trial, due process, and a reliable penalty determination. As noted earlier, a trial court must refrain from making ―comments implying that defense counsel was behaving unethically or in an underhanded fashion‖ in front of the jury. (Sturm, supra, 37 Cal.4th at p. 1241; see People v. Fatone (1985) 165 Cal.App.3d 1164, 1175 [―When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client.‖].) In Sturm, we held that the trial court acted inappropriately when it admonished counsel in front of the jury for ― ‗trying to sneak‘ in improper evidence . . . and by admonishing the jury that defense counsel‘s questions were not evidence ‗as much as he would like them to be evidence,‘ ‖ thereby ―impl[ying] to the jury that defense counsel was deliberately asking improper questions in order to place inadmissible evidence in front of the jury.‖ (Sturm, at p. 1240.) We found that the trial court‘s disparaging remarks were improper even though the court was ―[u]nderstandably frustrated by defense counsel‘s persistent attempts to push the boundaries of the trial court‘s evidentiary rulings . . . .‖ (Ibid.) Here, the court was understandably frustrated by counsel‘s repeated attempts to make the jurors feel guilty about the prospect of imposing a death sentence. And it was appropriate for the court to interrupt defense counsel and to admonish the jury that there was no dishonor in making the sentencing decision lawfully entrusted to them. Nonetheless, by accusing counsel of unethical and unlawful conduct in front of the jury, the court overstepped the bounds of

propriety. The court admonished counsel to ―sit down and formulate your thoughts to keep them ethical and lawful arguments‖ even though the prosecutor had not objected and even though defense counsel had made virtually identical remarks before the same trial judge, without objection, during her closing argument in the first penalty phase trial. But this conduct, on its own, does not require reversal of the conviction. In each of the cases cited by defendant in which we have reversed a conviction as a result of intemperate remarks by the trial court, the trial court had engaged in a persistent or pervasive course of disparaging counsel and the defense. Defendant relies heavily on Sturm, but as discussed above, Sturm reversed a death verdict where the trial judge intervened throughout trial, engaged in lengthy and hostile questioning of defense witnesses, made sarcastic remarks about the defense‘s evidence, and belittled multiple defense witnesses and defense counsel. (Sturm, supra, 37 Cal.4th at pp. 1233–1243.) Similarly in People v. Jackson (1955) 44 Cal.2d 511, 518, the trial judge ―[c]ontinually‖ interrupted defense counsel on behalf of the prosecution, appeared to refer to some of its decisions as being made on behalf of both the court and the prosecution, repeatedly denigrated defense counsel, read the jury only three of the 81 instructions requested by the defendants, and remarked on the source of those instructions in a way ―as to create the impression they were not charges by the court‖ (id. at p. 520; see also People v. Mahoney (1927) 201 Cal. 618, 627 [trial court ―persist[ed] in making discourteous and disparaging remarks to a defendant‘s counsel and witnesses and utter[ed] frequent comment from which the jury [could] plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredit[ed] the cause of the defense‖].) Here, the court‘s intervention was an isolated reaction to an inappropriate emotional appeal during closing argument by defense counsel. The court‘s

outweigh the mitigating circumstances, or that death is the appropriate penalty.‖ [Citation.] Nor does the federal Constitution require that the jury be unanimous on which aggravating factors apply. [Citation.] Nothing in the high court‘s decision in Apprendi v. New Jersey [(2000)] 530 U.S. 466, or its progeny, compels a different result. [Citation.] [¶ ] There is no requirement that the trial court instruct the jury that life imprisonment without the possibility of parole is the presumed sentence unless proven otherwise.‘ ‖ (People v. Duenas (2012) 55 Cal.4th 1, 27– 28.) ―Written findings by the jury during the penalty phase are not constitutionally required and their absence does not deprive defendant of meaningful appellate review.‖ (People v. Mendoza (2011) 52 Cal.4th 1056, 1097.) ―Review for intercase proportionality is not constitutionally compelled.‖ (People v. Williams (2013) 58 Cal.4th 197, 295.) ―At the penalty phase, the jury properly may consider a defendant‘s unadjudicated criminal activity and need not agree unanimously or beyond a reasonable doubt that the defendant committed those acts.‖ (People v. Martinez (2010) 47 Cal.4th 911, 968.) ―The use of restrictive adjectives, such as ‗extreme‘ and ‗substantial,‘ in the statute‘s list of potential mitigating factors does not render it unconstitutional.‖ (People v. Martinez, supra, 47 Cal.4th at p. 968.) ― ‗[T]he phrase ―whether or not‖ in section 190.3, factors (d) through (h) and (j)‘ does not allow ‗the absence of a mitigating factor to be considered as an aggravating circumstance . . . .‘ ‖ (People v. Homick (2012) 55 Cal.4th 816, 903.) ―Because capital defendants are not similarly situated to noncapital defendants, California‘s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.‖ (People v. Williams, supra, 58 Cal.4th at p. 295.)

People v. Banks

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