People v. Woodruff (2018) · DecisionDepot

People v. Woodruff

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Supreme Court Jul 19, 2018 No. S115378Published

Before: Chin

Filed 7/19/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S115378 v. ) ) STEVE WOODRUFF, ) ) Riverside County Defendant and Appellant. ) Super. Ct. No. RIF095875 ____________________________________)

A jury convicted defendant of the first degree murder of Riverside Police Officer Charles Douglas Jacobs and the attempted murder of Police Officer Benjamin Baker. (Pen. Code, §§ 187, 664.)1 It found true three special circumstances allegations: murder to avoid or prevent a lawful arrest, intentional killing of a peace officer engaged in the performance of his or her duties, and murder by means of lying in wait. (§§ 190.2, subd. (a)(5), (7), (15).) It also found true allegations of personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) and personal discharge of a firearm (§ 12022.53, subd. (c)). After finding that defendant did not have an intellectual disability, and following a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed a judgment of death. It also imposed a prison sentence on the other counts and

1 All further statutory citations are to the Penal Code unless otherwise stated.

enhancement allegations. This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death because of the erroneous exclusion of a prospective juror during jury selection and remand the case for a new penalty trial. We affirm the judgment in all other aspects. I. THE FACTS

A. Guilt Phase

1. Overview Police responded to a neighbor’s call that defendant’s mother, who lived in a two-unit house upstairs from defendant, was playing a loud radio outside, which had been a longstanding source of conflict. Because the mother refused to turn down the radio, officers began to arrest her. During the process, defendant, who had retrieved a gun from his house and was watching and listening from his porch, leaned into the outdoor stairwell leading up to the mother’s apartment, and, as observed by Officer Benjamin Baker and by a neighbor, fired up at the officers, killing Officer Douglas Jacobs. That evening, defendant admitted to the police that he shot Jacobs. At trial, however, he denied killing Jacobs, and he also presented evidence to contest the required mental state. The parties also presented contested evidence as to whether defendant had an intellectual disability and a brain injury.

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harassing Carr. Defendant felt the police were harassing his family because of where he grew up. He described what he had observed of the incident concerning Jimmy Taylor. Defendant later saw his mother crying and upset about the incident. He knew Tyisha Miller’s mother and felt that the police had murdered Miller and had no regard for Black people. John also testified that the police had come to the house three or four times and that he had filed a complaint with the police. Defendant could read and write “[a] little” and reached the tenth grade in school. He was an electrician by trade and did plumbing and Sheetrock work and worked on cars. He had worked for the Press-Enterprise newspaper as a driver and would count, stack, and bundle the papers. He had a “learning problem” and was in special education classes. He was in the process of purchasing the house he lived in and knew about escrow. Defendant had been knocked unconscious three times in his life, including in 1985 when a car ran over him. He lost consciousness, suffered spinal injuries and a split skull, and had to learn to walk again. Dr. Joseph Wu, a physician and clinical director of the University of California, Irvine School of Medicine’s Brain Imaging Center, evaluated defendant for brain injury by administering a PET (positron emission tomography) scan, which shows activity in the brain. Wu compared defendant’s scan to that of 56 “normal” patients, meaning patients who did not have identified brain disease. Specifically, Wu compared defendant’s scan to an image generated from the 56 normal patients that was also “normalized” for differences in age, gender, brain size, and shape. Wu observed abnormalities in defendant’s temporal lobe, interior cortex, and central cortex. The abnormalities observed would affect the ability to regulate emotion, to think “appropriately or correctly,” and to make abstract inferences. Based on his review of the PET scan and defendant’s medical records,

was “almost an obsolete machine,” would not have accounted for variation in skull thickness and would have produced a lot of image “noise.” Two colleagues performed a blind comparison of defendant’s brain to the 56 normal brains and found defendant’s brain to be one of the more “normal” brains, with fewer irregularities and asymmetries. Waxman concluded defendant’s brain was a “normal brain.” Waxman did not perform any tests on defendant’s brain using his own brain imaging machine. Dr. Craig Rath, a clinical psychologist, evaluated defendant. Rath had performed evaluations in over 6,500 court cases, including approximately 400 court-appointed defense evaluations on intellectual disability, and had testified mostly for the defense. Rath met with defendant three times, reviewed his records, and readministered the WAIS-III. Defendant had a full-scale IQ of 78, a verbal quotient of 80, and a performance quotient of 79. Rath readministered the WAIS- III because defendant said he had not tried hard the first time. Rath would have accounted for “practice effects” of retaking the test within five months but defendant’s areas of improvement would not have been due to test familiarity. According to Rath, it is not possible for an intellectually disabled individual to fake more aptitude than his true capacity. Defendant scored 86 on the Vineland Adaptive Behavior Scales test (Vineland test), administered by Rath, and a 65 on the communication portion of the test. Based on his experience with approximately 1,000 intellectually disabled individuals, Rath had no doubt that defendant was not intellectually disabled. Defendant had a learning disability. Rath, however, observed defendant to be communicative, providing detailed information, understanding the questions posed by Rath, and recalling his personal history with general accuracy. Defendant recalled he had worked as an electrician through the temporary agency Manpower, at a factory assembly, and at the Press-Enterprise newspaper, where he had

responded to the trial court’s suggestion that he listen to its review of pertinent case law with “I don’t understand nothin’ you sayin’, Judge. . . . I’m not a lawyer, you know. I’m listening. I just don’t understand.” Later, when the court asked if defendant wanted to continue with Blankenship’s representation, defendant explained, “Yes. I’ll assure you, Judge, that, you know, there is a higher up that sent Mr. Blankenship to me, and he must be the one to represent me, you know, because there’s someone over you and that you work for. So, I really don’t understand what is really going on here, anyway, you know.” Further discussion with the court resolved defendant’s comprehension difficulties. When defendant said he was listening but did not understand, the court responded that it would explain in nonlegal language. The court explained to defendant that it was his choice whether to proceed with Blankenship, that he had the right to an attorney, that the court would appoint one for him if he could not afford an attorney, and that the public defender’s office had many experienced attorneys who had handled capital cases. The court emphasized Blankenship’s lack of familiarity with the criminal justice system. The court admonished defendant to listen carefully, explained further that it had serious concerns about Blankenship’s failure to request defense investigation funds, and told defendant again that if he could not afford an attorney, the court would appoint a qualified, experienced death penalty attorney to represent him. The trial court asked defendant if he understood, and defendant replied affirmatively. The court asked if he still wished to proceed with Blankenship, and defendant said that he did. Regarding defendant’s comment that a “higher up” had sent Blankenship to represent defendant, and that he did not understand what was “going on here,” the court further explained that defendant needed to carefully consider his legal representation because he was facing a potential sentence of death. Nevertheless, the court reassured defendant that it could not later remove Blankenship against

defendant’s wishes. When defendant expressed confusion about Blankenship’s failure to request money, the court explained that money was available for the investigation of defendant’s defense under state law. Defendant said that he understood. Defendant’s desire to proceed with Blankenship’s representation because a “higher up” had sent Blankenship did not suggest an inability to understand the proceedings. On the contrary, it reflected defendant’s desire to accept Blankenship as his attorney and thus defendant’s ability to assist in his defense. Simply because, as defendant characterizes it, his comment indicated “a belief that his volunteer attorney was a gift from God,” it does not follow that he was not competent to understand the proceedings. (See People v. Mendoza (2016) 62 Cal.4th 856, 895 [“[R]eligion-infused comments,” without more, are not indicative of mental illness and do not suggest the need for a competency determination].) Second, defendant contends that his request for bail, despite his attorney’s explanation that bail was not available in capital prosecutions, was another indication of his incompetence. But the fact that defendant, a nonlawyer, did not understand the unavailability of bail did not suggest incompetence. Neither defendant’s confusion about bail nor his inability to understand the court’s discussion of case law was evidence of inability to understand the proceedings against him. (People v. Bradford (1997) 15 Cal.4th 1229, 1364 [“ ‘technical legal knowledge’ ” is irrelevant for determining competency].) Reviewed in their entirety, defendant’s comments at the hearing support a finding that he understood the proceedings and could communicate how he wanted to try his case. For example, defendant asked the court, “You, the Judge, is going to be doing this trial, too, right?” After the judge’s affirmative response, he asked further, “They not gonna change you, right?” When the court responded affirmatively again, defendant stated, “Well, I’m satisfied.” Defendant’s questions

and comments showed that he could discuss his confusion with the court and express his concerns, and thus showed that he was able “ ‘to conduct his own defense in a rational manner.’ ” (People v. Pennington, supra, 66 Cal.2d at p. 515.) As further evidence of incompetence, defendant next points to his trial testimony that he “somewhat” understood what was happening at trial that day, that he could read and write a “little bit,” and that he did not understand what he was reading at the jail law library. We have reviewed defendant’s testimony at trial and cannot conclude that defendant lacked understanding of the proceedings. Defendant answered questions coherently. On direct examination, he explained his protective relationship towards his mother and his family’s negative experiences with law enforcement, and gave his account of what happened on the day of the shooting. On cross-examination, he was able to adhere to his version of events despite persistent questioning from the prosecutor. Similarly, he was able to appropriately state when he did not understand a question. Defendant “testified, in a completely rational manner, in his own defense.” (People v. Rundle (2008) 43 Cal.4th 76, 180.) Finally, defendant notes that defense evidence showed he had an IQ score of 66 and a verbal comprehension index score of 61. The prosecution expert testified defendant’s full-scale IQ score was 78 and his verbal quotient was 80. As we have previously explained, the “evidence, which addressed defendant’s alleged intellectual disability, did not pertain to the question of competence to stand trial. Although a defendant’s incompetence to stand trial might, in some cases, be inferred from evidence of severe intellectual disability, the . . . evidence of possible incompetence presented here was not so substantial as to deprive the trial court of discretion. Therefore, we defer to the trial court, which heard the . . . evidence, observed defendant and the witnesses, and did not form a doubt

comes to minorities and law enforcement.” Blankenship provided similar explanations regarding other motions he declined to file. In reliance on our decision in Smith v. Superior Court (1968) 68 Cal.2d 547, the trial court decided not to remove Blankenship, concluding he had “set forth in an articulate fashion and demonstrate[d] clearly that [he had] considered these issues” and made strategic decisions after consultation with defendant. The court explained to defendant two areas of concern. First, with a month remaining before trial, Blankenship had done little penalty phase investigation. Second, Blankenship had not applied for indigent defense funds. Blankenship responded he needed more time to prepare. The court informed defendant that he had the right to representation by an attorney at no cost, and that the Riverside County Public Defender’s Office had death penalty experienced attorneys. The court told defendant to “listen to me carefully” because it had “very, very serious concerns” that Blankenship had not sought defense funds. The court repeated, “If you cannot afford to hire an attorney, I will appoint an experienced death penalty qualified attorney to represent you.” Defendant said that he understood. As previously noted, defendant told the court, “I’ll assure you, Judge, that, you know, there is a higher up that sent Mr. Blankenship to me, and he must be the one to represent me, you know, because there’s someone over you and that you work for. So, I really don’t understand what is really going on here, anyway, you know.” The court explained that if the jury found just one of the special circumstances true, defendant would die in prison whether by a life sentence or by the death penalty. The court cautioned, “So it is in your best interest that you consider very carefully your representation in this matter.” The court explained that it was defendant’s right to choose Blankenship, and the court would not interfere with defendant’s decision. Defendant responded, “You tellin’ me that’s

In People v. Ramirez, supra, 39 Cal.4th at pages 419 to 422, the defendant contended that the trial court erred in granting his request for substitution of counsel despite the court’s concerns that his two chosen counsel were unqualified to try a capital case. Concluding there was no error, we explained that a trial court can deny a defendant counsel of his choice only if it “ ‘ “will result in significant prejudice to the defendant.” ’ ” (Id. at pp. 422-423.) In Maxwell v. Superior Court (1982) 30 Cal.3d 606, 613, where the question was under what circumstances a defendant could demand deficient counsel, we concluded that “[w]hile … the right to chosen counsel is not absolute [California decisions] limit severely the judge’s discretion to intrude on defendant’s choice of counsel in order to eliminate potential conflicts, ensure adequate representation, or serve judicial convenience.” We explained that while a defendant has a constitutional guarantee to effective counsel, that effectiveness is “linked closely to representation by counsel of choice. When clients and lawyers lack rapport and mutual confidence the quality of representation may be so undermined as to render it an empty formality.” (Ibid.; see Smith, supra, 68 Cal.2d at pp. 561 [the attorney-client relationship is “particularly essential” when defending the client’s life].) In Smith, the issue concerned whether a trial court could remove an indigent defendant’s attorney based on “the judge’s subjective opinion that the attorney [was] ‘incompetent’ . . . .” (Smith, supra, 68 Cal.2d at p. 549.) We explained that “the constitutional guarantee of the defendant’s right to counsel requires that his advocate . . . be free in all cases of the threat that he may be summarily relieved as ‘incompetent’ by the very trial judge he is duty-bound to attempt to convince of the rightness of his client’s cause.” (Id. at p. 562.) While “it is the duty of the trial judge to protect the defendant’s right to a counsel who is effective . . . in discharging that duty the judge must be on his guard neither to

infringe upon the defendant’s right to counsel of his choice, nor to compromise the independence of the bar.” (Id. at p. 559.) We explained that a trial court has several measures available “when it appears to him that a defense counsel is making serious mistakes to his client’s prejudice.” (Smith, supra, 68 Cal.2d at p. 560.) The “judge may intervene, at least within reasonable limits,” such as by “controlling the scope of examination, questioning witnesses himself, making appropriate suggestions as to the items or order of proof, commenting on the evidence, admonishing or instructing the jury on his own motion, or exercising any of his other inherent powers over the conduct of the proceedings to insure that the defendant receives a fair trial.” (Ibid.) Nonetheless, “[w]hile we recognize that courts should exercise their power to remove defense counsel with great circumspection,” a trial court has a duty to remove counsel even over the defendant’s objection where other measures have failed, in cases of “ ‘obviously deficient performance’ ” such as when counsel refuses to participate in the trial. (People v. McKenzie (1983) 34 Cal.3d 616, 630.) Here, the trial court relied on Smith in declining to relieve Blankenship. The court took the approach endorsed in Smith, intervening when it observed that Blankenship’s actions or omissions could potentially harm defendant. For instance, the court provided guidance to Blankenship about applying for defense funds and urged him to do so, and afforded repeated opportunities and instruction on how to file a sufficient Pitchess motion. The court also delayed the trial for a year through several continuances to allow Blankenship time to prepare. (Cf. People v. Crovedi, supra, 65 Cal.2d at pp. 208-209 [court reasonably delayed trial by several weeks to allow a defendant to keep his retained counsel and have time to prepare].) As a result, Blankenship did retain a psychologist to examine defendant and arranged for further testing to support the defense theory that

defendant had an intellectual disability and a brain injury. The court also intervened at times during the trial, for example by admonishing the jury that it was not to consider a witness’s opinion as to guilt when Blankenship elicited a prosecution investigator’s opinion that defendant was guilty. Given the court’s twin duties as outlined in Smith—to protect defendant’s right to effective assistance as well as his right to chosen counsel (Smith, supra, 68 Cal.2d at pp. 558-562)—and given defendant’s repeated affirmance of Blankenship as his choice of counsel, the court’s approach was reasonable. Moreover, it is evident from the record that Blankenship never relinquished his responsibility to represent defendant and instead actively litigated issues and examined witnesses on defendant’s behalf throughout the trial. As Blankenship explained at the September 2001 and March 2002 hearings, his approach was not to rely on motions that he felt would telegraph the defense strategy, but instead to try the case in front of the jury and allow it to determine the strength of the evidence. Blankenship’s actions throughout the trial reflected his stated strategy of presenting this case as a Riverside community issue involving minorities and law enforcement. For example, during jury selection, Blankenship questioned potential jurors about their sensitivity to racial injustice and their knowledge of the Tyisha Miller shooting. Blankenship’s examination of defendant and Carr at trial similarly demonstrated this approach by highlighting the family’s earlier experiences with law enforcement as well as their familiarity with the Tyisha Miller shooting. Thus, Blankenship actively defended defendant with a strategy we cannot say was unreasonable, given the evidence in the case and the events taking place in the Riverside community at the time. “Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness

examination and jury argument.” (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150.) We also note that Blankenship endeavored to work with the court to meet its concerns and the court accepted his explanations as to his actions. We cannot say Blankenship’s decisions rose to the level of “ ‘flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed.’ ” (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 615, quoting Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697.) Rather, Blankenship’s decisions fall into the realm of tactical choices by the defense with which the court could not properly interfere. When Blankenship did make mistakes, such as the failure to arrange for expert evaluations in a timely manner, the trial court mitigated the harm by delaying the trial. Defendant asserts the trial court was unaware it possessed the discretion to remove Blankenship for incompetence. However, the court stated just the opposite, acknowledging that “[t]he narrow circumstances in which removal may occur are flagrant attorney misconduct or incompetent attorney, incapacity, significant[] prejudice to the defendant, or serious circumstances that undermine the integrity of the judicial process or orderly administration of judicial process.” Aware of this discretion, however, the trial court concluded, “There’s no question in my mind that the representation being provided thus far to Mr. Woodruff is zealous and, thus far, within the bounds of the law.” At a later hearing, the court said it would not hesitate to remove Blankenship if he reached a standard of “flagrant ineffective assistance.” The trial court’s “wait-and-see” approach, coupled with active intervention when concerns arose, struck the right balance in protecting defendant’s dual rights to effective assistance of counsel and to defend himself in “ ‘whatever manner he deems best.’ ” (Smith, supra, 68 Cal.2d at p. 559.)

regarding Blankenship, the court sought to affirmatively ensure that defendant was making an informed decision in his choice of counsel, as was his right. At the hearing in March 2002, when the court determined that Blankenship was again unprepared for trial, the court asked and received an affirmative response from defendant to the question, “Mr. Woodruff, are you comfortable with the way your case is being handled thus far?” Concluding defendant had made “a sound and informed decision to continue” with Blankenship, the court reasonably elected not to question him to the extent it had at the September hearing; further inquiry could have been viewed as interference with defendant’s right to counsel of his choice. “We observed in Maxwell v. Superior Court[, supra,] 30 Cal.3d [at p. 615,] . . . ‘[d]efendant’s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.’ ” (People v. Ramirez, supra, 39 Cal.4th at p. 422.) The court again concluded Blankenship had not provided ineffective assistance “at this point.” It noted areas where it had concerns about Blankenship’s representation of defendant, but also found that Blankenship had “sound, tactical reasons” for his decision not to file or pursue certain motions. Thus, the circumstance did not call for taking a “waiver” of effective assistance of counsel. Further, defendant’s repeated affirmative choice of Blankenship as his trial counsel has not prevented him from raising ineffective assistance in support of various claims in his appeal. “A defendant whose request to substitute counsel is granted cannot complain on appeal that the trial court should have denied that request. The defendant’s only contention on appeal in such circumstances can be that he or she was denied effective assistance of counsel.” (People v. Ramirez, supra, 39 Cal.4th at p. 423; see Wheat v. United States (1988) 486 U.S. 153, 162 [“we note . . . the apparent willingness of Courts of Appeals to entertain

the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation. If the request is denied, the court shall state on the record its reasons for denial of the request.” “The initial burden . . . is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges.” (People v. Lucky (1988) 45 Cal.3d 259, 279.) “The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.” (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22.) We review a decision denying the appointment of second counsel for abuse of discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 278.) Defendant asserts the trial court “discouraged” Blankenship from seeking appointment of second counsel. On the contrary, the court stated it would “consider anything you wish to bring to my attention,” with regard to a Keenan appointment. Moreover, in response to Blankenship’s comment that Keenan counsel was a “novel” concept to him, the court helpfully responded that once Blankenship had a chance to consider the matter, he would learn the requirements for the appointment of second counsel, stating generally the criteria to be “the complexity of the case, the types of issues that will be raised during the course of the case, and various related factors.” (See Keenan v. Superior Court, supra, 31 Cal.3d at p. 432 [When assessing the need for another attorney, the court “must focus on the complexity of the issues involved, keeping in mind the critical role that pretrial preparation may play in the eventual outcome of the prosecution.”].) Therefore, rather than discouraging Blankenship from applying for cocounsel, the court seemed to encourage him. Further, the statute providing for the appointment of second counsel states that it may be available “upon a written request of the first attorney appointed.” (§ 987, subd. (d).) Thus, the trial court reasonably questioned whether it could

adversely affected counsel's performance, and (2) absent counsel's deficiencies arising from the conflict, it is reasonably probable the result of the proceeding would have been different.’ ” (People v. Rices (2017) 4 Cal.5th 49, 65.) “Determining ‘whether counsel's performance was “adversely affected” . . . “requires an inquiry into whether counsel ‘pulled his punches,’ i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.” [Citation.]’ ” (People v. Rices, supra, 4 Cal.5th at p. 65.) Here, the record does not indicate that Blankenship “pulled his punches” in questioning either defendant’s mother or his cousin. Although called as a prosecution witness, Carr’s testimony supported the defense’s case that the family was afraid and distrustful of the police and that defendant was afraid the police were hurting his mother that day. Blankenship cross-examined Carr thoroughly on various topics, including earlier encounters with the police, her knowledge of the Tyisha Miller shooting, her fear of the police, and her recollection of the events that day, including her perception that Baker appeared angry and had aimed a gun at Claude. Blankenship asked her repeatedly about whether she was screaming and crying and afraid, which would have supported defendant’s testimony that he reacted because he heard his mother screaming. Carr’s testimony was therefore helpful to the defense, and Blankenship would not have needed to impeach Carr with any confidential information.

Smith testified briefly at the penalty phase about the liquor store shooting but, contrary to the prosecution’s expectation, he minimized defendant’s involvement, stating that he did not see defendant with a gun. Thus, Blankenship likely realized it was not in defendant’s interest to impeach Smith, since his testimony indicated defendant had not been involved in the shooting. Suggesting that Smith had a tendency for untruthfulness would have cast doubt on his testimony that defendant was not involved. Blankenship stated in his penalty phase closing argument that the prosecution’s evidence at most implicated defendant as being present at the liquor store incident, which indicates his strategy was to use Smith’s testimony at face value rather than to impeach it. Thus, there is nothing to suggest that Blankenship “pulled his punches” with respect to either witness. Because Blankenship’s performance was not deficient, we need not reach the second prong of the Strickland test, i.e., whether counsel’s performance affected the outcome. Defendant offers no argument supporting the claim that Blankenship’s deficient performance impacted the guilt or penalty verdicts. Finally, defendant asserts that Blankenship labored under actual conflicts with respect to defendant’s six-year-old daughter as well as his brother Claude Carr, as evidenced by comments Blankenship made about the possibility of sparing defendant’s daughter from testifying as a prosecution witness and about potentially merging defendant’s trial with Claude’s. An attorney labors under an actual conflict of interest when he “fail[s] to represent defendant as vigorously as he might have, had there been no conflict.” (People v. Cox (2003) 30 Cal.4th 916, 948.) Based on these brief inquiries, we discern no potential for conflict. Blankenship did not represent defendant’s daughter or Claude. Blankenship may have had tactical reasons for his queries or may have been responding to an instruction from defendant to spare his daughter the trauma of testifying.

and the jurors’ oath. [Citation.] By contrast, if a juror’s questionnaire responses are inconsistent and do not clearly reveal an inability to serve, the court may not grant a cause challenge without further questioning to clarify the juror’s views.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 863.) “When the trial court’s assessment of a prospective juror’s capacity to serve is based at least in part on the juror’s tone, demeanor, or other elements that cannot be reflected in the written record, its ruling is owed deference by reviewing courts. [Citation.] But no such deference is warranted when a trial court’s ruling on a for-cause challenge is based solely on the prospective jurors’ answers to a written questionnaire. [Citation.] In those circumstances, we review de novo the trial court’s dismissal of the prospective juror for cause.” (People v. Zaragoza (2016) 1 Cal.5th 21, 37.) “[A] prospective juror may not be excluded for cause simply because his or her conscientious views relating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would make it very difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror’s conscientious opinions or beliefs concerning the death penalty would make it very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will ‘substantially impair the performance of his [or her] duties as a juror’ . . . .” (People v. Stewart (2004) 33 Cal.4th 425, 447.) Even if a juror checked the box indicating that it would be “very difficult” for him or her to impose the death penalty, the juror might nonetheless, “in response to brief follow-up questioning, persuasively demonstrate an ability to put

aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and make that very difficult determination concerning the appropriateness of a death sentence. Such a prospective juror would not be substantially impaired in performing his or her duties as a juror.” (People v. Stewart, supra, 33 Cal.4th at p. 447.) Reviewing the decision to remove D.K. independently, we conclude the trial court erred in sustaining the challenge for cause based on the juror’s written questionnaire responses. Simply because he did not “believe” in the death penalty, it does not follow that D.K. would have been unable to “put aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and make that very difficult determination concerning the appropriateness of a death sentence.” (People v. Stewart, supra, 33 Cal.4th at p. 447.) Despite his beliefs, D.K., in response to question 55, which asked whether he would always vote for the death penalty, always vote for life without parole, or consider all the evidence and instruction and impose the penalty he felt appropriate, chose the third option. Additionally, he responded “yes” to the question whether, if the judge gave an instruction on the law that differed from his beliefs or opinions, he would follow the law as instructed by the judge. D.K.’s responses thus “did not clearly demonstrate that his death penalty views would prevent or substantially impair the performance of his duties as a capital juror.” (People v. Covarrubias, supra, 1 Cal.5th at p. 866.) D.K.’s responses provide little ambiguity as to his ability to set aside his beliefs and follow the law. In response to the question whether his beliefs (which included that “only God can make those choices”) would make it difficult to vote for the death penalty, D.K. responded “No,” explaining, “I would follow[] the law.” Thus, D.K.’s written response did not support the trial court’s conclusion.

The prosecution “hesitatingly” submitted Juror No. 3 for challenge to “see if the court thought he could or could not be fair” to the defense. Defense counsel opposed the challenge, citing the juror’s demeanor and race, and concluding for “tactical reasons” that the juror was “perfectly accessible to my opinion, and he has not answered in a way that he could not be fair.” The trial court denied the challenge, noting it was not considering the juror’s race, and concluding Juror No. 3’s responses, “albeit somewhat hesitatingly, indicated that he would do his best to be fair in both the guilt and penalty phases.” Defendant does not meet his burden of demonstrating that his counsel’s performance was deficient. Given the defense strategy of showing that defendant and his family distrusted the police due to their experiences growing up in Mississippi during the civil rights movement, it would have been reasonable for defense counsel to conclude that Juror No. 3, who grew up in Alabama, would have been “accessible,” as counsel described, and open to hearing defendant’s side of the case. “[A] reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission.” (People v. Mickel, supra, 2 Cal.5th at p. 198.) Further, the record supports the trial court’s finding that Juror No. 3 could be impartial. Although the juror expressed concern about his ability to be fair because he had relatives in law enforcement, he repeatedly stated that he would try to be fair and impartial. We credit the trial court’s conclusion, based on observing the juror firsthand, that he had the ability to serve on defendant’s trial. “ ‘ “In many cases, a prospective juror’s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror’s probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. Under

questions about whether he could be a fair and impartial juror regarding race. There was nothing about the charges that would affect his ability to be fair and impartial, he would follow the law as instructed, he would not credit more or less a police officer witness, he could discuss his thinking about the case and listen to other jurors, and he could be fair to both sides because he had an “open mind.” S.J. had “no feeling” about the death penalty, circled 6 out of 10 on whether he was in favor of it, and explained that its purpose was “an eye for an eye.” During defense voir dire, when asked if he wanted to sit on this jury, S.J. responded, “I look at it as, if I have to, I have to.” When asked again if he were willing to sit on the jury and be fair, S.J. replied, “Yes, if I have to.” In response to the prosecutor’s question about whether he was a “very quiet man,” S.J. said “sometimes.” He indicated he was not a “very private man.” When the prosecutor pressed him about having no opinion on the death penalty, S.J. explained, “That means that I believe that in some cases a death penalty is justified and in some case I have to look at the case.” S.J. affirmed that the death penalty could be used sometimes, stating, “Yeah, I would think I was more neutral. If I have to make a decision, I can make that decision.” S.J. indicated he was not “easily fooled.” The trial court found the defense had failed to make a prima facie showing that the prosecutor had exercised peremptory challenges on the basis of race, commenting that S.J.’s “initial remarks [were that jury duty] is like having a root canal. He clearly didn’t want to be here. Would be here if forced to stay, but his whole attitude and reluctance, the air about him suggests that a peremptory challenge was appropriate.” However, the court appears to have at least partially confused S.J. with another prospective juror, D.B., who made the comment likening jury duty to a root canal. The court also noted that the prosecutor had accepted the panel when it included Juror No. 3.

in response to an earlier comment by the trial court in which it expressed reluctance to dismiss African-American jurors because of the small number of available African-American jurors, and thus was a comment on the court’s approach to jury selection. The trial court found S.J. did not want to be a juror based on his demeanor, which would have been a permissible basis for excusal. (E.g., People v. Parker, supra, 2 Cal.5th at p. 1213.) S.J.’s response to the two questions about whether he was willing to sit on the jury was, “if I have to,” which suggests he “didn’t want to be here” as the court noted. However, as defendant observes on appeal, the trial court erroneously attributed to S.J. a comment likening jury service to a root canal. It is unlikely, however, that the trial court completely confused the two jurors given that S.J. was an African-American male and D.B. was a Caucasian female (peremptorily challenged by defendant). As noted above, the trial court had stated its concern about retaining African-American jurors in the pool, which could be seen, for example, in the court’s effort to rehabilitate L.T. through its own voir dire of L.T. when she had stated that she would have difficulty with the case. The more likely explanation for the apparent confusion, therefore, is that both jurors appeared reluctant to serve and the trial court correctly surmised S.J. “didn’t want to be here” based on his demeanor, but misremembered which juror made the specific comment. Notably, in his follow-up response in the hearing below, defense counsel did not address the court’s observation about S.J.’s demeanor, instead acknowledging the low number of African-Americans excluded and a lack of pattern in the prosecutor’s peremptory challenges, but reiterating his assertion that the prosecutor had questioned African-American jurors at length to establish bias. The trial court also noted the prosecutor’s acceptance of Juror No. 3 on the panel. (See People v. Clark (2011) 52 Cal.4th 856, 906 [while not dispositive,

acceptance of a member of the group indicates prosecutor’s good faith].) With respect to both Wheeler motions, defendant challenges the significance of this fact because Juror No. 3 had expressed pro-prosecution sentiments as described in section II.C.2, ante. The prosecutor had previously made a for-cause challenge to Juror No. 3, for the reason that the juror had expressed bias in favor of the prosecution, explaining in response to defense objection to the challenge, that he had similarly stipulated to the excusal of other jurors who had expressed pro- prosecution views out of a duty to ensure that defendant had a fair trial, which is supported by the record. From these circumstances, it is difficult to draw an inference about the prosecutor’s acceptance of Juror No. 3 on the panel. Even if we agreed that the prosecutor accepted Juror No. 3 only because of his pro- prosecution views, that circumstance would simply show that he was exercising his challenges based on which jurors would be most favorable for him and not for racial reasons. Turning to jury statistics, prior to the court’s ruling on defendant’s motion, “[w]hile the prosecutor did excuse two out of three [African-Americans], the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.” (People v. Bell (2007) 40 Cal.4th 582, 597-598, fn. omitted.) Neither does the prosecutor’s use of two out of nine peremptory challenges against African-American jurors suggest a disproportionate use of peremptory challenges. (See, e.g., People v. Sánchez (2016) 63 Cal.4th 411, 436 [use of two of eight peremptory challenges against Hispanic jurors was insignificant].) While the percentage of African-American jurors challenged (2 out of 3) was much higher than the percentage of African-American jurors available for challenge (3 out of 29), “because of the small sample size the disparity carries relatively little information.” (People v. Bell, supra, 40 Cal.4th at pp. 598, fn. 4.) Before the jury was sworn, the prosecutor had struck three out of

four available African-American jurors in the main jury pool and a total of four out of six available jurors with the inclusion of the alternate jury selection. The prosecutor used 3 out of his 17 challenges against African-American jurors in the main jury selection and 4 out of 20 challenges in the entire jury selection. The final jury and the alternate jury each included one African-American juror (Juror No. 3 and Alternate Juror No. 3). Any inference of bias is “ ‘necessarily dispel[led]’ ” because nondiscriminatory reasons for the prosecutor’s peremptory strikes of L.T., M.M., and D.B. “are apparent from and clearly established in the record.” (People v. Reed, supra, 4 Cal.5th at p. 1000.) L.T.’s responses both in her written questionnaire and in her voir dire, and as noted by the prosecutor during two earlier for cause challenges of her, revealed significant race-neutral reasons for L.T.’s challenge, namely, that she perceived a conflict between her religious beliefs and the death penalty, and had felt upset about an incident where she was a victim and believed the Riverside Police Department had made an inadequate investigation. L.T. had also expressed deep reluctance to serve on a jury where she would have to view autopsy photos. As discussed in section II.C.3.b, post, the record supports the prosecutor’s proffered race-neutral reason for peremptorily challenging M.M. As to the prosecutor’s challenge to D.B. during alternate jury selection, the trial court denied defendant’s third Wheeler motion at the first stage, noting that D.B. had served on a hung jury, which defendant has not challenged on appeal. The prosecutor had questioned D.B. about her service on the hung jury. Likewise, the prosecutor’s voir dire of S.J. specifically addressed his questionnaire responses and was not desultory. (People v. Edwards (2013) 57 Cal.4th 658, 698- 699.) Defendant also asserts that “the prosecutor attempted to exclude the first eight Black jurors to appear in the jury box.” Defendant does not identify any

specific jurors. While a prosecutor’s specious for-cause challenge to other jurors of the same race might support an inference of race-based discrimination (People v. Sánchez, supra, 63 Cal.4th at p. 437), none appears here. Defendant also requests that we compare S.J.’s questionnaire responses to those of Juror Nos. 7 and 12, both non-African-American, asserting that all three jurors “were males in their 50s, with service/repair jobs for major companies” and all three circled “6” on the death penalty scale. “We have often declined to undertake comparative juror analysis at step one of the Batson/Wheeler framework. [Citations.] Nonetheless, such analysis can be helpful in certain circumstances to assess whether a defendant established a prima facie case of bias.” (People v. Reed, supra, 4 Cal.5th at p. 1002.) In his questionnaire, Juror No. 7 was more expressive than S.J. in explaining his opinions. Neither juror’s voir dire comments indicated a reluctance to serve, but neither was asked about it. It is difficult to form a conclusion without having observed the demeanor of the three jurors. S.J.’s affirmative response to several questions on the jury questionnaire indicated that he could be fair and impartial, and the trial court, in concluding that S.J. did not want to be a juror, erroneously attributed to him the comments made by another juror likening jury service to a root canal. However, it is difficult to make a prima facie showing from the statistics of the peremptory challenges and the record reveals race-neutral reasons for the prosecutor’s challenges. Moreover, S.J.’s comment that he would serve as a juror if required is consistent with the trial court’s finding that S.J.’s demeanor indicated he did not want to be a juror. In his response below, defendant did not address the court’s comment that S.J. “[w]ould be here if forced to stay, but his whole attitude and reluctance, the air about him” indicated that he did not want to perform jury duty. Defendant therefore fails to show that “the totality of relevant circumstances gives rise to an inference of

observations of the prosecutor’s examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are ‘implausible or fantastic . . . may (and probably will) be found to be pretexts for purposeful discrimination.’ [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor’s credibility.” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159.) Here, the court, relying on its experience as a trial judge and a prosecutor, credited the prosecutor’s reason for excusing M.M. because of his background in sociology and career in social services. We conclude that the prosecutor’s proffered reason, and the trial court’s reliance on its knowledge of jurors and prosecutorial trial strategy, in crediting the reason, to be reasonable. (People v. Streeter (2012) 54 Cal.4th 205, 225 [reasonable to believe that a social services caseworker would be more sympathetic to the defense]; People v. Watson (2008) 43 Cal.4th 652, 677 [prosecutor’s concern about social worker’s ability to be objective was reasonable in light of her work at the Los Angeles County Department of Children and Family Services]; People v. Lewis (2008) 43 Cal.4th 415, 476 [finding credible prosecutor’s asserted reasons for striking a juror who worked as a correctional counselor and had a background in psychology and sociology].) There is substantial evidence in the record to support the prosecutor’s stated reason given M.M.’s responses about his background and work and given the prosecutor’s familiarity with the agency for which M.M. worked. Defendant contends that comparative juror analysis shows that the prosecutor’s reasons for excusing M.M. were not genuine because he accepted Juror Nos. 2 and 11, who had similar backgrounds but were Caucasian. “[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is

adequate to permit the urged comparisons.” (People v. Lenix (2008) 44 Cal.4th 602, 622.) “ ‘The rationale for comparative juror analysis is that a side-by-side comparison of a prospective juror struck by the prosecutor with a prospective juror accepted by the prosecutor may provide relevant circumstantial evidence of purposeful discrimination by the prosecutor. [Citations.]’ [Citation.] ‘If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.’ [Citation.] ‘At the same time, “we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.” [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 442.) The prosecutor’s proffered reasons for excusing M.M. were M.M.’s thesis about the brainwashing of Africa through colonial education and his master’s degree in sociology, as well as his career in social services. Juror No. 2 had a master’s degree in entomology, the study of insects, and worked as a research associate in that field. Juror No. 11 had a bachelor’s degree in “general education,” including psychology courses, and had been working as an elementary school teacher for four years. So, in fact, neither Juror No. 2 nor Juror No. 11 shared much in common with M.M. from a career or educational perspective. This court has also compared the responses of a challenged juror to other peremptorily challenged jurors of a different race. (People v. Lewis, supra, 43 Cal.4th at p. 478.) Prior to the peremptory challenge of M.M., the prosecutor similarly inquired of, and peremptorily challenged, L.G., a non-Black juror, who had a bachelor’s degree in sociology and career as a school teacher. The

construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Thomas (2012) 53 Cal.4th 771, 797.) Defendant contends the comments implied that the prosecution offered defendant a plea deal that he had rejected and that the jurors would “plausibly conclude that even though the defendant was guilty, he had asked for a trial.” The comments were not misconduct. The prosecutor was responding to a juror’s statement suggesting that cases do not go to trial if there has been a confession. Because defendant admitted shooting Officer Baker, the prosecutor did not commit misconduct in clearing up the juror’s misconception. The main point of his comments was that the jurors could not hold defendant’s decision to go to trial against him; in other words, jurors were to presume defendant to be innocent and require that the prosecution prove him guilty beyond a reasonable doubt. “The prosecutor’s statements ‘were not legally erroneous, and defendant had ample opportunity to correct, clarify, or amplify the prosecutor’s remarks through his own voir dire questions and comments.’ ” (People v. Thomas, supra, 53 Cal.4th at p. 797.) And in fact, he did: on further voir dire, defense counsel commented to the jury, “So, all of you believe at this point that Mr. Woodruff is innocent? You all understand that concept? You all understand that Mr. Woodruff doesn’t have to—It’s the prosecution’s obligation to prove that he’s not innocent. Do you understand he’s innocent up until the point that you actually return a verdict . . . ?” Therefore, defense counsel cleared up any erroneous assumptions by the jury. “Moreover, as a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury’s verdict in the case. Any such errors or misconduct ‘prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings . . . .’ ” (People v. Medina (1995) 11 Cal.4th 694, 741.)

the record. Defense counsel did not object. Defendant contends the reference violated his state and federal rights to due process and a fair trial. “By statute, evidence of prior specific acts of misconduct is ordinarily inadmissible either to prove conduct on a specific occasion or to attack a witness’ credibility. ([Evid. Code], §§ 787, 1101, subd. (a); see § 788 (exception for prior felony convictions).) More specifically, it has long been held that evidence of an accused’s prior arrests is inadmissible.” (People v. Anderson (1978) 20 Cal.3d 647, 650.) A witness’s volunteered statement can be the basis for error. (People v. Wharton (1991) 53 Cal.3d 522, 565-566.) Defendant has forfeited the contention by failing to object. (Evid. Code, § 353; People v. Jennings (1991) 53 Cal.3d 334, 375 [“Because defendant fails to establish that testimony revealing his ex-convict status, and his prior arrest, is so prejudicial that its admission must always result in reversal of the judgment, we hold counsel’s failure to object or seek some other form of remedial action waived the issue for appeal.”].) Moreover, the comment was harmless beyond a reasonable doubt even if we assume, without deciding, that it violated defendant’s federal constitutional rights. (Chapman v. California (1967) 386 U.S. 18, 24.) The brief and vague comment told the jury nothing it did not know from other evidence in the case. The jury was already aware that defendant had an arrest record. In defendant’s interview, the police had questioned him about whether he was currently on any drugs or alcohol, noting his arrest history for drunk driving. Defendant explained to the officers that he had stopped drinking when he got a DUI in 1994 and had been sober since then. The jury also knew that defendant had been afraid to go outside when the police arrived because he thought he had an arrest warrant for drunk driving. No reason exists for the jury to believe the reference to an arrest record referred to more than this. The comment could not have been prejudicial.

4. Testimony of Lead Investigator Opining on Guilt Several times, in response to questions by both parties, prosecution witness Martin Silva, the lead investigator in the case, expressed to the jury his opinion that defendant was guilty, as well as his reasons for so concluding. “ ‘[O]pinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) Defendant claims ineffective assistance of counsel, prosecutorial misconduct, and judicial misconduct with respect to the admission of Silva’s testimony. We find no error. Part of the defense strategy was to show that the police failed to make a thorough investigation into the case because they prejudged defendant to have murdered Jacobs. While questioning Silva, defense counsel tried to show that the investigation had been compromised and that Silva was determined to conclude defendant was guilty. At one point, counsel asked, “You believe, with everything that you are, that Mr. Woodruff fired a bullet that didn’t ricochet that hit Mr. Jacobs, don’t you?” Counsel then elicited the “factual basis for [Silva’s] belief.” On redirect, the prosecutor reviewed with Silva the evidence that had been developed in the investigation and that led him to conclude “that this defendant is guilty of murder.” To the prosecution’s question whether, “having investigated six to 700 murders . . . , [Silva had] any doubt that the defendant’s guilty,” Silva responded he did not. On recross, defense counsel sought to show that Silva was biased. During a break, the court expressed concern that Silva’s opinion and described reasons for concluding defendant was guilty had prejudiced defendant, and discussed the issue with defendant at length before asking if he wished to continue the trial and continue with Blankenship. Defendant said that he did. Defense counsel explained that given the testimony presented by several prosecution witnesses over the previous 13 days of trial, Silva’s testimony would

not have prejudiced defendant and the jury would have surmised that Silva had concluded that defendant was guilty. Thus Blankenship needed to elicit Silva’s opinion about the case to expose his bias and show why the investigation had not been thorough. The court concluded that the testimony had prejudiced defendant nonetheless and that the court should have disallowed the questioning on its own motion. Given defendant’s decision to continue with the trial, the court instructed the jury with CALJIC No. 2.20 (“Believability of Witness”), and further instructed the jury that “[a]ny witness who has testified in this proceeding and who may have voiced an opinion as to the question of guilt or innocence of the defendant, that testimony is not to be considered by you.” When Silva’s testimony resumed, the court reinstructed the jury to disregard any opinion of any witness as to guilt and that “only you will ultimately make that determination that is the ultimate question of fact before you, and only you, the members of the jury, will make that determination.” We find no misconduct. In light of the defense strategy of trying to show that the police simply believed defendant guilty and thus failed to investigate the case fully, the prosecution was certainly entitled to show why the police did believe him to be guilty and thus investigated the case as they did. We also find no judicial error. The court did intervene, foreclosing any further testimony by Silva as to his opinion on guilt, and reinstructing the jury when it appeared the prosecution was revisiting the topic during redirect. Given defense counsel’s stated strategy of drawing out Silva’s bias, and given defendant’s reaffirmation of Blankenship as his choice of counsel, the court was limited in its discretion to prohibit the testimony. “A criminal defendant’s constitutional right to confront witnesses is violated when the court prohibits the defendant from conducting otherwise appropriate cross-examination designed to show a prototypical kind of bias on the witness’s part, and thereby provide the jury

with facts from which it could appropriately draw inferences regarding the witness’s reliability.” (People v. Sánchez, supra, 63 Cal.4th at p. 450.) Moreover, the court offered defendant a mistrial, but he elected to continue the trial after being sufficiently apprised by the court of its concerns about prejudice. Therefore, the court did not abuse its discretion in acceding to defendant’s decision to continue with Blankenship and in mitigating any harm by instructing the jury that it alone was to determine guilt. The real question is whether, as defendant contends, his attorney was ineffective. To show ineffective assistance, defendant must show that “counsel’s performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.” (People v. Alexander, supra, 49 Cal.4th at p. 888; see Strickland v. Washington, supra, 466 U.S. at p. 687.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) Trying to show that the police believed defendant was guilty and thus did not adequately investigate the case was a reasonable defense strategy. “A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.” (People v. Kelly (1992) 1 Cal.4th 495, 520.) Moreover, we see no prejudice, especially in light of the trial court’s admonitions. In People v. Riggs (2008) 44 Cal.4th 248, the prosecutor elicited from an investigator (Pina), the opinion that the defendant was guilty. We found no prejudice. The witness’s “testimony that he believed defendant was guilty as charged . . . did not present any evidence to the jury that it would not have already inferred from the fact that Pina had investigated the case and that defendant had been charged with the crimes. There was no implication from the questions or answers that Pina’s opinions were based upon evidence that had not been

court sustained defense counsel’s objection. The record does not state whether Blankenship had a ponytail, but the parties assume the comment was about him. “ ‘Personal attacks on opposing counsel are improper and irrelevant to the issues.’ ” (People v. Lopez (2013) 56 Cal.4th 1028, 1072; see People v. Reyes (1974) 12 Cal.3d 486, 506 [“name calling of opposing counsel should be avoided”].) Assuming the comment was referring to Blankenship’s hairstyle, we find it was harmless. The comment was “fleeting and rather obscure. Even if [it] constituted misconduct, [it did] not constitute the type of deceptive and reprehensible methods that require reversal.” (People v. Lopez, supra, 56 Cal.4th at p. 1073.) Counsel immediately objected and the court sustained the objection. (People v. Hill (1998) 17 Cal.4th 800.) Moreover, misconduct occurring during voir dire is unlikely to unduly influence a jury’s verdict. (People v. Thomas, supra, 53 Cal.4th at p. 797.) Defendant next contends the prosecutor engaged in misconduct by commenting in front of the jury that he “would ask for sanctions” regarding defense counsel’s cross-examination of a police detective. The comment came after a series of questions in which defense counsel sought to establish that the police did not adequately investigate possible bullet entries in a tree and in the ground and similarly did not do sufficient work to search for a bullet found more than a year later lodged in the side of the house. The court sustained several prosecution objections to the questioning before the prosecutor eventually made the comment about sanctions. The court responded, “All right. You’ll not do that in front of the jury. And you’ll move on to a new area. I think you’ve established your point.” During a recess, the court told the prosecutor not to ask for sanctions in front of the jury, stating “You’re reacting to him, and you’re letting it show.” The court then addressed defense counsel, “I can see what you’re doing. You

obviously have a lot of ability. You’re an extremely intelligent gentleman. But I’m gonna start cracking down on the editorializing before you ask your questions.” Counsel complained of misconduct by the prosecutor in asking for sanctions before the jury. There is no reason to believe the prosecutor’s comment would have had any significance to the jury in its deliberation of the charges. In response to the comment, the court directed the prosecutor not to “do that” in front of the jury and similarly reprimanded defense counsel to move to another topic in the questioning, noting, “You’ve established your point.” If anything, the prosecutor’s comment might have reflected poorly on him because, as the court noted during the break, “you’re reacting to him, and you’re letting it show.” Next, defendant claims that the prosecutor’s comment, while he was searching for an exhibit in the jury’s presence, “I’m sure I’ll never see it again,” was an “accusation that defense counsel was hiding or misplacing evidence.” Defendant reaches this conclusion by referring to an earlier comment by the prosecutor, out of the jury’s presence, that defense counsel had removed exhibits from the court. “ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ ” (People v. Dykes (2009) 46 Cal.4th 731, 771-772.) We see no reasonable likelihood the jurors would have believed this innocuous comment referred to defense counsel, given that they had not heard the earlier comment. By itself, the comment did not suggest that defense counsel had taken the exhibits. Defendant’s remaining contentions concern the prosecutor’s closing argument. First, he complains of the prosecutor’s comment that “[t]he defendant has cloaked himself in infirmities of people that are legitimate infirmities. . . . Mental retardation? How shameful. . . . How shameful to pretend to be a member

be accused and faulted for calling the police? Yes, if you were a witness in this trial.” The prosecutor further argued, “Would you want to stay up there with [Carr] and a police officer? Who would feel safe? The door had already been pulled away from her. She was already yelled at. Would you stay? Not if you had any sense.” (The prosecutor was responding to the defense argument that Menzies was “relentless in making sure that the radio stopped,” and that she had run away from Baker and Carr.); (4) The prosecutor stated, “Can you imagine a more deadly place to be trapped with an angry parolee than on a three-foot by six- foot landing, suspended, what, fifteen feet above the ground? Where do you go? Screen door is behind you. The mother is to one side. If you’re pushed, hit, you’re tall—shorter would have been better up there. Railing at least could have been a little bit safe.” (This was a response to defense counsel’s observation that Claude Carr was 4 feet, 11 inches tall to suggest he did not pose a threat.); (5) The prosecutor stated, “He may have been about as far as I am from you when he shot and killed Doug Jacobs. Is that very far to take a gun and point it at you and shoot?” (The prosecutor was responding to defendant’s statement that he did not aim at Jacobs.) Defendant also challenges the following comments: (1) Regarding the defense experts, the prosecutor argued, “Let’s talk about the doctors for a minute. You met Einstein the other day. If you had a brain problem or suspected problem, would you want him to be the one to interpret your scan? If you had a child who was sick, would you want Dr. Wu to be the one to take the picture and talk about what it meant? . . . . Would you want Dr. Booraem to be your psychologist?”; (2) In discussing the jury instruction on justifiable homicide, the prosecutor stated, “I can say anything I want, that I was in fear for my life so I had to kill you. . . . Well, number one, it assumes I killed you. Now, he’s told you he didn’t, so he shouldn’t be entitled to that instruction based on his version. He says he

behavior.’ [Citation.] Indeed, ‘[o]ur role . . . is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [defendant] a fair, as opposed to a perfect, trial.’ ” (People v. Snow, supra, 30 Cal.4th at p. 78.) To support his claim, defendant cites 12 instances of purported misconduct, which he does not discuss individually, instead arguing that they cumulatively demonstrated “the trial judge’s message to the jury . . . that defense counsel’s questions and objections were without merit, and by extension, his entire case was without merit.” Defendant objected only to the first instance of alleged misconduct. In his briefing, he tries to avoid appellate forfeiture of claims stemming from the remaining instances by arguing that “defense counsel’s attempts to object that the trial judge’s sarcastic comments were ‘prejudicial to . . . Mr. Woodruff’ fell on deaf ears.” “Ordinarily, the lack of an objection at trial forfeits the claim on appeal. [Citation.] However, a failure to object to judicial misconduct does not preclude appellate review when an objection could not have cured the prejudice or would have been futile. (People v. Sturm (2006) 37 Cal.4th 1218, [1237.]) In Sturm, we ruled the defendant had not forfeited his claim of judicial misconduct, despite his lack of objections, because the hostility between the trial court and defense counsel was evident. (Ibid.) Moreover, Sturm involved numerous, extensive disparaging remarks.” (People v. Houston (2012) 54 Cal.4th 1186, 1220.) We disagree that defendant’s lone objection to the purported misconduct “fell on deaf ears” and warranted the conclusion that future objections would have been futile. During testimony, defense counsel had made a series of objections on several grounds. The court stated: “Are you gonna run through the whole Evidence Code?” Counsel responded, “Might as well.” To which the court

replied, “Well, I haven’t heard a legitimate one yet, so overruled.” Defense counsel later commented at length about his concern that the court’s comment “feels like it’s outside the scope of maintaining respect for me as an advocate on behalf of Mr. Woodruff.” The court responded, “Let me say this: I certainly did not intend to be demeaning of you. And if my tone of voice suggests otherwise, I apologize for that. It’s certainly not my intent. But when a lawyer makes an objection that’s overruled and then runs through half a dozen or so other reasons for it, I think I was perfectly justified in making the comment I did.” We see nothing in the court’s comments indicating that the court was antagonistic towards the defense or that future objections would have been futile. The court was merely rebuking defense counsel for articulating a series of objections rather than identifying the appropriate basis for his objection. Moreover, defense counsel invited the court’s further response by his comment, “Might as well.” Defendant alternatively argues that that any failure to object was “yet another example of the ineffective assistance defense counsel provided to Mr. Woodruff.” We have reviewed the remaining portions of the record he cites as showing misconduct and find defendant’s claims of judicial misconduct and bias to be without merit. The court’s comments were certainly not “ ‘so prejudicial that [they] denied [defendant] a fair, as opposed to a perfect, trial.’ ” (People v. Snow, supra, 30 Cal.4th at p. 78.) Two of the alleged instances of judicial misconduct occurred outside the presence of the jury and thus could not have prejudiced defendant. In any event, there was no misconduct. First, defendant identifies a heated exchange between the court and defense counsel on December 12 outside the presence of the jury, which defendant claims demonstrated “the judge’s antagonism toward and contempt for defense counsel.” Counsel had complained at length to the court,

On the contrary, the evidence indicates concealment of purpose. When defendant heard Jacobs say that he would not wait for a sergeant to arrive, defendant retrieved his gun from his bedroom, loaded it, and placed it on the television by the front door. He remained inside listening to the activity upstairs. Defendant eventually exited the house and crossed the porch with his gun. When defendant looked across the street and saw his neighbor Mark Delgado watching him, defendant moved the gun behind his back. Defendant also told the police that the officers upstairs could not see the gun and that he was standing on the porch “peek[ing]” from behind the wall watching and listening for two to three minutes. His “true intent and purpose were concealed by his actions.” (People v. Sassounian (1986) 182 Cal.App.3d 361, 407.) Defendant’s conduct also satisfied the element of surprise attack. Defendant fired on the officers from a position of tactical advantage and without warning. The officers, who were occupied with arresting defendant’s mother and his brother, could not have known that defendant had armed himself and was considering shooting at them. Defendant later confirmed that Jacobs had not seen him when he fired at him. Delgado also observed that defendant was acting “sneaky” and did not hesitate prior to shooting. Thus defendant foreclosed any opportunity for the officers to observe him, firing at them while they were “entirely unsuspecting.” (People v. Livingston (2012) 53 Cal.4th 1145, 1173 [“Defendant also attacked from a position of advantage—shooting suddenly with a semiautomatic firearm on victims trapped in a small room reading a newspaper or conversing.”].) Defendant contends there was no concealment of his location because he had warned the officers from that location to leave his mother alone. However, “[t]he element of concealment is satisfied by a showing ‘ “that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that

a. Factual Background Before trial, the court and the parties discussed at what stage of the trial the court should hold the intellectual disability hearing required by Atkins and whether defendant had a right to a jury determination. The court proposed three phases, a guilt phase followed by an intellectual disability hearing, concluding with the penalty phase. Defendant sought a pretrial determination of intellectual disability, stating it would be “fine” and “appropriate” for the court to determine the issue because it concerned scientific evidence and would avoid prejudicing, as well as death-qualifying, the jury in advance of the determination. The court and the prosecution stated a willingness to have a pretrial bench determination if defendant waived any right to a jury. However, defense counsel also hesitated to give up the right to a jury because of “the benefit of having the . . . death-qualified jury hear elaborately about Mr. Woodruff’s mental condition and trouble.” Defendant ultimately filed a motion for a pretrial jury determination of whether defendant was intellectually disabled. The court denied the motion, deciding that the jury would determine the intellectual disability question following the guilt phase. The court encouraged defendant to file a petition for writ of mandate on the issue so that a higher court could provide guidance. The court asked the parties to review its proposed instructions concerning intellectual disability, keeping in mind the teachings of Atkins and noting that defendant bore the burden of proof by a preponderance of the evidence. Defense counsel agreed with the instructions. Following testimony at the intellectual disability hearing, the court instructed the jury that it had to unanimously determine whether defendant had shown by a preponderance of the evidence that he was “significantly subaverage in general intellectual functioning” and “significantly limited in adaptive functioning in at least two of the following skill areas:” communication, self-care,

the defendant, the court shall conduct the hearing without a jury prior to the commencement of the trial. The defendant’s request for a court hearing prior to trial shall constitute a waiver of a jury hearing on the issue of intellectual disability.” (§ 1376, subd. (b)(1).) The procedure for determining intellectual disability is the same whether by a pretrial court hearing or a jury trial following the guilt phase: Each side presents evidence and has the option to present rebuttal evidence, and each side makes a closing argument. (§ 1376, subd. (b)(2) & (3).) “A statement made by the defendant during an examination ordered by the court shall not be admissible in the trial on the defendant’s guilt.” (Id., subd. (b)(2).) Here, the jury trial devised by the trial court was essentially identical to the procedures stated in section 1376. The trial court’s instructed definition of intellectual disability was as provided in section 1376 and in Atkins. The skill areas identified by the court, obtained from Atkins, supra, 536 U.S. at page 308, footnote 3, are identical to those listed in the later CALCRIM No. 775. The hearing followed the guilty verdict, as provided in section 1376. (§ 1376, subd. (b)(1).) Both sides presented evidence and gave closing arguments. (§ 1376, subd. (b)(2) & (3).) The court instructed the jury that the defense bore the burden of proof by a preponderance of the evidence, as later provided by the statute. (§ 1376, subd. (b)(3).) The jury returned a unanimous verdict. Defendant’s claim that the “makeshift format gave the jury untrammeled discretion” lacks merit, given that the hearing in fact comported with the key elements of section 1376. Additionally, “[t]he decision in Atkins did not require that defendant’s trial be conducted in any particular fashion. The decision in Atkins simply held that defendant could not be executed” if he is intellectually disabled. (People v. Jackson (2009) 45 Cal.4th 662, 680.) Defendant also asserts that section 1376 “would have [granted him] the authority” to choose the pretrial jury determination that the court denied. This is

not true. Section 1376 only provides for a determination by the jury following the guilt phase or a determination by the trial court preceding the guilt phase. (§ 1376, subd. (b)(1).) The court proposed both options and ultimately adopted the first. Defendant considered both options, noting the benefits of each, but ultimately rejected both options by filing a motion for a pretrial jury determination. He thus rejected the options he would have had under section 1376. Moreover, putting section 1376 aside, there is “no constitutional mandate” that a jury determine whether a capital defendant is intellectually disabled. (In re Hawthorne, supra, 35 Cal.4th at p. 50; see Schriro v. Smith (2005) 546 U.S. 6, 7-8 [reversing Ninth Circuit’s order for jury trial determination of whether defendant was intellectually disabled].) The United States high court left “ ‘to the State[s] the task of developing appropriate ways to enforce the constitutional restriction’ ” on the execution of intellectually disabled defendants. (Atkins, supra, 536 U.S. at p. 317.) Defendant’s due process and equal protection claims are thus without merit. When we devised the procedure for adjudicating postconviction Atkins claims, we explained that taking an approach similar to section 1376 would “maintain consistency with our own legislation and the judicial frameworks adopted in other jurisdictions and . . . avoid due process and equal protection implications.” (In re Hawthorne, supra, 35 Cal.4th at p. 47.) Defendant contends that if section 1376 had been in force, “the jury would have had guidance about how to evaluate the importance of the full-scale IQ scores.” However, the court’s instructions provided as much guidance as section 1376 or CALCRIM No. 775. Section 1376 “makes no reference to one or another clinical test of intelligence, any more than it refers to a particular score as the cutoff point for mental retardation.” (People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1012.)

three instances concern the court’s opening statements during the November 2002 jury selection. “ ‘All proceedings in a capital case must, under section 190.9, be conducted on the record with a reporter present and transcriptions prepared. [Citation.] “ ‘[N]o presumption of prejudice arises from the absence of materials from the appellate record [citation], and defendant bears the burden of demonstrating that the record is inadequate to permit meaningful appellate review [citations].’ ” [Citations.]’ [Citation.] ‘The record on appeal is inadequate . . . only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal. [Citation.] It is the defendant’s burden to show prejudice of this sort.’ ” (People v. Tully (2012) 54 Cal.4th 952, 1070, fn. omitted.) Here, defendant fails to show that the copying and pasting of the judge’s pre-voir dire remarks prejudiced him. He states only that the prejudice is derived “from the realization that the entire record is untrustworthy.” Such speculation fails to support a claim that the record prevents meaningful review. (People v. Young (2005) 34 Cal.4th 1149, 1170.) Most of the instances of copying and pasting defendant cites occurred during the jury selection that did not result in the seating of a jury and therefore are immaterial to the review of defendant’s case. The remaining instances concern the court’s opening statements to prospective jurors during the time-qualification phase of jury selection. The copied material concerns mundane matters of no significance and does not prevent meaningful review of defendant’s trial. (People v. Zambrano, supra, 41 Cal.4th at p. 1194.) The record, which consists of approximately 6,000 pages in both the clerk’s and reporter’s transcripts, does not support defendant’s claim of untrustworthiness. Moreover, in response to defendant’s motion for a new trial, the court made the reporter’s original notes available for both parties to review. Defendant has submitted briefing of approximately 300 pages, raising some 26 issues in his

People v. Woodruff

IN THE SUPREME COURT OF CALIFORNIA

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