P. v. Hazlett SC

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
LARRY KUSUTH HAZLETT, JR.,
Defendant and Appellant.

S126387

Kern County Superior Court
BF100925A

August 27, 2026

Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Kruger, Groban, and Fujisaki *
concurred.

Justice Liu filed a dissenting opinion, in which Justice Evans
concurred.

Justice Evans filed a dissenting opinion, in which Justice Liu
concurred.

*
Associate Justice of the Court of Appeal, First Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. HAZLETT
S126387

Opinion of the Court by Guerrero, C. J.

On March 17, 2003, the District Attorney of Kern County
charged defendant Larry Kusuth Hazlett, Jr., with the first degree
murder of Tana Woolley (Woolley) in violation of Penal Code section
187.1 Because the crime occurred in October 1978, the 1977 death
penalty law applies.2 (See, e.g., § 190.2, subd. (c)(3), added by Stats.
1977, ch. 316, § 9; § 190.3, added by Stats. 1977, ch. 316, § 11.) Two
felony-murder special circumstances were also alleged — namely,
that the murder was committed during the commission or attempted
commission of rape (former § 190.2, subd. (c)(3)(iii), now § 190.2,
subd. (a)(17)(C)) and burglary (former § 190.2, subd. (c)(3)(v), now
§ 190.2, subd. (a)(17)(G)).3 Under the 1977 death penalty law, the
rape and burglary special circumstances required a finding that the
murder was willful, deliberate, and premeditated (former § 190.2,
subd. (c)(3); People v. Robertson (1982) 33 Cal.3d 21, 48, fn. 14).
After a jury trial, defendant was convicted of first degree
murder, and the jury found true each alleged special circumstance.
Following a penalty phase trial, the jury returned a verdict of death,
and the trial court entered a judgment of death.

1
All further statutory references are to the Penal Code unless
otherwise indicated.
2
The 1977 law was repealed on November 7, 1978. (See People v.
Cooper (2002) 27 Cal.4th 38, 41–42.)
3
We refer to these special circumstances as the 1977 rape-murder
special circumstance and the 1977 burglary-murder special
circumstance.

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This appeal is automatic. (§ 1239, subd. (b).) We affirm the
judgment.
I. FACTS
A. Guilt Phase
1. Prosecution evidence
a. The homicide of Woolley
In October 1978, Ricky Rush and Woolley lived in Rosamond,
California. They had been dating for about five years. On October 24,
1978, when it was still light outside, Rush met Woolley at her
apartment. Rush spent about 45 minutes in the apartment during
which time they had sex in the bedroom, lying on the sheet with the
bedspread pulled down. Afterward the two drove to the store and
went to Rush’s house where he lived with his mother and stepfather,
a Kern County Sheriff’s Department sergeant. Before leaving the
apartment, they turned on the lights for the kitchen and front porch
and locked the apartment door.
Rush and Woolley ate dinner and watched television at Rush’s
house. Rush’s mother and stepfather arrived sometime after dinner.
Woolley was barefoot and complained of being cold, so Rush gave her
a pair of socks to wear. They continued to watch television and then
returned to Woolley’s apartment.
Upon arriving at Woolley’s apartment, Rush and Woolley
noticed that the porch light was on but the kitchen light was off. They
were “alarmed” and “thought it was strange.” Rush then went into
the apartment, turned on lights, and looked around; he did not look in
the bathroom or dining room. He saw that the glass in the bedroom
window, which was already cracked, remained intact.
Rush characterized Woolley as very tidy. She always left the
shower curtain pulled back in the open position. The kitchen window

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along an outside wall was open — it had no glass, and this was
something Woolley had complained about to the apartment manager
for the entire two weeks she had lived there. She had put a blanket
in front of the window opening, which was approximately four feet
high and three feet wide. Woolley kept the refrigerator positioned in
front of the window opening to help keep the cold air out. The
refrigerator was easy to move because it had wheels. When Rush
looked through the apartment that evening, he did not notice that the
refrigerator was out of place.
Ultimately, Rush concluded they must have turned the kitchen
light off before they had left. He was there for 10 to 15 minutes and
except for when he looked through the apartment, he stayed
immediately inside the door, talking to Woolley. Rush kissed Woolley
goodbye and told her that he would return shortly with a half-gallon
of milk they had left at his house. As he drove away from the
apartment, Rush saw Woolley’s bedroom light turn on. After Rush
arrived at his home, he decided not to return to Woolley’s with the
milk because he did not think it was important.
The next morning, Helen Woolley (Helen), the victim’s mother,
was notified that Woolley had not reported to her job. When Helen
arrived at Woolley’s apartment, the door was closed but unlocked.
Helen entered the apartment and discovered Woolley’s body on the
bed in her bedroom.
b. The investigation
i. 1978
Helen notified law enforcement. Around 10:30 a.m., Deputy
Sheriff Craig Hatfield arrived at Woolley’s apartment. Upon entry,
Hatfield immediately observed Woolley’s body lying perpendicular
across the bed. Her body was naked except for her arms, which were
covered by the sleeves of a shirt tucked under her torso, and her right

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foot, which was clothed in a blue sock. Woolley’s head hung over the
edge of the bed and was “almost touching the floor.” A blue sock that
matched the one on her right foot was tied around the front of her neck
with the ends hanging off the sides. She had a red, frothy substance
extruding from her nose and mouth. Woolley’s body was lying on the
bedsheet and partially on a green bedspread, with her left foot tangled
in the bedspread. Her panties and shorts were lying neatly by the side
of the bed and had not been torn from her. Hatfield noticed some dark-
colored spots on the carpet directly below her head and a red
substance that appeared to be blood smeared on a bedroom wall.
Hatfield noticed that the shower curtain in the bathroom was
drawn shut. He pulled the curtain open but found no one. Hatfield
searched for possible suspects outside the apartment and found
broken glass on the ground below a window that led to Woolley’s
bedroom; the lower portion of the window was broken. Hatfield also
found a wooden portion of the window frame lying on the ground. It
appeared as if someone had broken the window from the inside out.
A photograph taken during the crime scene investigation
showed the refrigerator against the wall but not in front of the kitchen
window.
Rush looked over Woolley’s apartment with investigators to see
if he noticed anything missing. Rush noticed that there were shoe
prints inside the bathtub that he described as “dirt from a shoe, just
a regular print — it wasn’t barefoot.”4 Rush confirmed that the
refrigerator was normally positioned in front of the window opening
and that nothing appeared to be missing from the apartment.

4
The prosecution introduced no evidence establishing the source
of the shoe prints.

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Dwight Pendleton, an investigator with the Sheriff’s detective
division, and his partner contacted the residents of the apartment
complex to determine whether they had information relevant to the
investigation. Defendant resided in apartment No. 5, east of Woolley’s
apartment with no apartments between the two. When Pendleton
first attempted contact with defendant at his apartment, defendant
was not there. Pendleton returned around 5:30 or 6:00 p.m.
Defendant was home and told Pendleton that he had left his
apartment sometime around 11:00 p.m. the previous night to buy food
from a convenience store. Defendant stated that he was not gone very
long, took a shower upon his return, and then went to bed around
11:30 p.m. Defendant told Pendleton that Woolley’s front porch light
was on at that time. When defendant woke up later during the night,
he noticed that the same light was off. Pendleton testified that
defendant was cooperative and answered all questions during the
interview. Pendleton did not observe any scratches on defendant and
had no cause for concern regarding defendant.
One day after discovery of Woolley’s homicide, Gregory
Laskowski, a supervising criminalist with the Kern County Regional
Criminalistics Laboratory in Bakersfield, observed Woolley’s partially
nude body on an autopsy table. A blue sock had been tied around her
neck as a ligature. He noted purple facial coloring with bleeding and
frothing from her face and mouth and “some bruising to her upper
shoulder area.” Laskowski removed the sock and put it in a bag after
identifying it as evidence. With the sock removed from Woolley’s neck,
Laskowski observed “deep purplish markings about the throat.”
Laskowski collected two “rape kits” from Woolley’s body but did not
find anything considered foreign, such as hairs that did not belong to
Woolley. The vaginal swab that was obtained as part of the rape kit
was later found to be missing and was not recovered.

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Laskowski explained that after the evidence was processed by
the laboratory, it was stored in a bag and sent to the Kern County
Sheriff’s property room, which consisted of a metal shed with shelves.
The property room was subject to ambient conditions such that it was
neither heated in the winter nor cooled in the summer. Evidence that
was marked to be preserved was stored frozen, including biological
samples with forensic significance such as cuttings from stains,
vaginal swabs, oral swabs, and anal swabs. Larger items were stored
under ambient conditions, including bedspreads, sheets, and pillows.
With respect to People’s exhibit No. 4, a green bedspread, the
parties stipulated that (1) Woolley’s body was found lying on the
bedspread, as depicted in the photographs of People’s exhibit No. 6,
and (2) the bedspread was properly bagged, marked, and taken to the
Kern County crime lab.
No arrest was made at the time of Woolley’s murder.
ii. 1999–2000
The Kern County Criminalistics Laboratory adopted DNA
analysis in 1999. That same year, Kern County Detective Christopher
Speer was assigned to investigate Woolley’s 1978 homicide with “a
fresh perspective.” Speer conducted background checks on various
individuals listed in the case file and began checking for available
physical evidence.
On October 27, 1999, Speer contacted defendant and informed
him that they were investigating a cold case involving Woolley.
Defendant told Speer that he had not known Woolley. Defendant
stated that he vaguely remembered the incident, having learned of
Woolley’s death from some children at the apartment complex after
arriving home from work in the “daylight hours” following the
homicide. Defendant recalled Woolley as being possibly Caucasian or
Hispanic, and that she may have had a fiancé. Although Speer had

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obtained a search warrant, defendant voluntarily provided Speer with
samples of his head hair and pubic hair and a saliva swab. Speer also
obtained a DNA sample from Rush.
iii. 2002
Following DNA testing — described below — police interviewed
defendant and arrested him. The parties stipulated as follows
regarding the interview: “[O]n December 17th, 2002, Detectives Joe
Hicks and Scott Jelletich of the Kern County Sheriff’s Department
interviewed the defendant, Mr. Hazlett, in Sacramento, California.
During that interview, Mr. Hazlett stated that in 1978 he lived on . . .
an end apartment in the apartment complex in Rosamond; that he did
not know the victim, Tana Woolley; that he was never inside her
apartment; that he saw three people moving the victim into the
victim’s apartment but never talked to them; that the back window of
his apartment faced the victim’s apartment; and that the victim’s
apartment had a fence and that he believed it to be the only one that
had a fence around it; that he didn’t help the victim or her friends
move anything in; that Detective Hicks showed him photographs of
the bedspread and the victim’s clothing from the crime scene and that
he denied ever having seen those items; that he denied having sexual
relations with the female depicted in . . . a photograph of . . . Tana
Woolley shown to him by Detective Hicks; and that he never snuck
into the victim’s apartment when she wasn’t there.”
iv. 2003–2004
On three separate occasions in 2003 and 2004, Kern County
District Attorney’s Office Criminal Investigator Trent Sproles
examined Woolley’s apartment. Sproles determined that the “east-
north” side of the front yard of Woolley’s apartment could be viewed
from a window in defendant’s living room. Woolley’s apartment was

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the “only stand-alone apartment in the complex,” meaning it did not
share a wall with any other apartment.
c. DNA analyses
i. The bedspread
In 2000, Kern County Regional Crime Laboratory Supervising
Criminalist Brenda Smith examined Woolley’s green bedspread
visually with her “naked eyes” and with an “alternate light source.”
Using the alternate light, Smith observed multiple stains on the
bedspread that she subjected to a chemical test for semen. Smith
found two areas on the top surface of the bedspread and two additional
areas from the underside of the bedspread. Each of the four areas
screened positive for the presence of semen. Smith cut out each area
from the bedspread and packaged them in an envelope and then into
a “biopack” envelope for subsequent testing.
In November 2002, Smith removed some of the bedspread
cuttings from the biopack envelope and excised a portion of two of the
semen stains from the underside of the bedspread for DNA testing.
Smith did not test the two stains on the top of the bedspread because
they were “very small stains” and “screened very weakly positive” as
semen. Using a “Profiler Plus kit” that contains “the reagents
necessary to copy the DNA at . . . ten specific locations or regions on
the DNA strand,” Smith compared defendant’s DNA profile from his
saliva sample with the profiles of the DNA extracted from the two
semen stain samples.
Smith concluded that “Larry Hazlett matched the profile . . . at
eight locations . . . from the — the two stains on the bedspread, and
[she] could not eliminate him as being a possible contributor to those
two stains found on the bedspread.” In other words, “[t]he DNA from
the sperm stains and Larry Hazlett’s DNA, based on [the] comparison,
are identical.” Smith was unable to make a comparison at one of the

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nine loci “because . . . of the age of the sample, the fact that it was
somewhat degraded.” Smith noted that “[t]here’s approximately six
billion individuals in the world” and opined that there is a probability
that “approximately one person in 126 billion” will have the same
DNA profile as the two sample semen stains.5 That is, Smith opined
that there is a one in 126 billion probability that “the source of this
DNA is from some unknown, unrelated individual who happens to
have the same DNA profile as [defendant].” Alternatively, Smith
explained that “[t]he DNA profile obtained from these two semen
stains is approximately 126 billion times more likely to match the
DNA profile of Larry Hazlett if he is the donor of this DNA rather than
some unknown, unrelated individual.”
Comparing the known reference sample of Rush to the DNA
extracted from the two semen stain samples on the bedspread, Smith
was able to exclude Rush as a possible contributor to either sample.
Smith obtained only partial DNA profiles of DNA extracted from
fingernails clipped from each of Woolley’s hands and collected at the
time of the autopsy, either because the sample had degraded over time
or there was not sufficient cellular material. The DNA Smith
extracted from the fingernails was attributable to only Woolley.
ii. The sock tied around Woolley’s neck
On January 16, 2003, Smith examined the sock that was found
tied around Woolley’s neck. Smith obtained only partial DNA profiles
from each of the four samples of the sock she prepared because each
sample was degraded to some extent. Smith determined that each
sample had a mixture of DNA from at least two persons. Smith
compared the DNA profiles of each sock sample with Rush, Woolley,

5
The DNA experts provided statistics using a single population
database without reference to race.

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and defendant. Rush was eliminated as a contributor “to any portion
of the mixture found on the four sock samples.” Smith determined
that Woolley was the major contributor of the mixture found on each
sock sample.
Smith could not eliminate defendant as a potential minor
contributor to the mixture of DNA extracted from the four sock
samples. Defendant’s DNA profile matched the DNA profiles of the
samples based on comparisons at five of the nine genetic locations, i.e.,
loci. Based on one of the sock samples, Smith concluded that “[i]t’s
approximately . . . 310,000 times more likely to match the DNA profile
of Hazlett, if he is the donor or the contributor of this DNA, rather
than some unknown, unrelated male individual.”
d. Autopsy results
Kern County Coroner’s Office contract pathologist Dr. Debra
Hanks testified at trial after reviewing the autopsy photographs and
report prepared by Dr. D.F. Ambrosecchia of the Kern County
Coroner’s Office, who had died before trial. The autopsy report was
not admitted in evidence.
The autopsy report noted a circumferential wound on Woolley’s
neck, blood spots on her face, and hemorrhages in her eyes, thyroid
gland, and neck muscles resulting from strangulation. Nothing
collected during the autopsy indicated that Woolley scratched the
perpetrator. Nothing revealed that the perpetrator used his or her
hands or any other instrument except the blue sock to commit the
crime.
Based on the autopsy report and photographs, Dr. Hanks
determined that Woolley died from ligature strangulation from
something being wrapped around her neck and pulled so hard that it
cut off oxygen to her brain. The pathologist testified hypothetically
about how long it would take for death to occur after pressure is first

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applied by a ligature to a victim’s neck; she stated that it depends on
the type of ligature used, the perpetrator’s strength, and whether the
victim fought back and struggled. Dr. Hanks explained that the
victim could become unconscious between 20 to 30 seconds to three
minutes after pressure was initially applied and that death would
result within three to five minutes, although it “could be considerably
longer.” The three-minute minimum period before death would result
assumed application of continuous pressure. Dr. Hanks further
testified that with application of continuous pressure, “once you
become unconscious and the flow of oxygen to the brain is cut off,
because the blood flow is cut off, then death occurs within a few
minutes.”
On cross-examination, Dr. Hanks elaborated that during the
period between unconsciousness and death “[i]t takes a while for all
of the oxygen to get cut off to the brain for the body to go through the
physiological mechanisms of death, which usually . . . first as you’re
passing out you can’t see . . . then the oxygen is cut off, the body may
go through convulsions. There may be voluntary and involuntary
struggling that occurs during the strangulation, so it takes a little
while after the flow is cut off for actual death to occur.” Dr. Hanks
explained that “a brief stopping of the blood flow to the brain like [that
effectuated by pulling very strongly] and then releas[ing] wouldn’t
cause death.” The pathologist clarified that “certainly, situations like
major blunt force trauma to the neck that would crush the larynx and
the windpipe would [cause death]” but “[t]hat wasn’t in this case.”
Regarding the force applied to the sock ligature around Woolley’s neck
and the time between application of that force and Woolley’s death,
Dr. Hanks testified that “it’s very clear from the [autopsy] report and
the photographs that there’s a very large ligature around the neck
with enough crushing force that crushes a necklace into the skin.
There’s hemorrhaging of the thyroid gland and hemorrhaging of the

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muscles, and so the fact that there was enough time for blood to even
get into those tissues means that there were certainly seconds to
minutes that this . . . person was alive and the blood was still pumping
and certainly the ligature was enough that resulted in death.” The
strangulation caused the “blood spots on the face and some
hemorrhages in the eyes.”
Dr. Hanks testified that Dr. Ambrosecchia performed a liver
temperature test to determine the inner-core temperature of Woolley’s
body, which assists in determining the time of death. Dr. Hanks
assumed that Dr. Ambrosecchia conducted a proper test, although the
test result was not noted in the autopsy report. Dr. Hanks related
that Dr. Ambrosecchia found Woolley’s stomach contained digested
food. Depending on the size of the meal eaten, complete digestion
occurs within one to four or five hours. Based on the undocumented
liver temperature and stomach contents, Dr. Ambrosecchia
determined Woolley’s death occurred between 11:00 p.m. and
1:00 a.m. In that respect, Dr. Hanks concurred in Dr. Ambrosecchia’s
opinion.
e. Evidence of other sexual offenses by defendant
The prosecution introduced evidence of sexual offenses that
defendant committed against four other women. Defendant contends
this evidence, which included evidence of his racially charged
comments to one or more of those other sexual assault victims, was
unduly prejudicial and should have been excluded. (See Evid. Code,
§ 352.) We describe the evidence in more detail in this opinion’s
subsequent treatment of this claim.
2. Defense evidence
David Diosi was a forensic scientist employed by the Kern
County crime laboratory assigned to collect trace evidence for
examination and testing in this case. Diosi examined the green

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bedspread and removed numerous hairs and fibers. Diosi did not
report finding any stain or biological material such as blood or semen
on the bedspread. Diosi examined the bedsheet taken from Woolley’s
bed, from which he removed numerous hairs and fibers, and noted the
presence of biological stains. Certain of these stains tested positive
for acid phosphatase, which might indicate the presence of semen.
In 2003, the defense retained Lisa Calandro, a former DNA
laboratory supervisor in the forensics science division of Forensic
Analytical. Calandro visually examined the bedsheet that was under
Woolley when her body was found for the presence of biological stains.
She observed and tested yellow stains on the sheet for acid
phosphatase, found in high concentrations in semen and at lower
concentration levels in other body fluids. A couple of the tests from
these stains yielded weak positive results for acid phosphatase.
Calandro cut four areas from these stains and ultimately determined
that only two of the cuttings yielded a sufficient quantity of DNA for
typing. Calandro compared DNA profiles of defendant and Rush to
the two samples and was able to exclude defendant as a possible
contributor to one sample but could not exclude Rush as a possible
contributor to the same sample. The results of the other sample were
indeterminate.
B. Penalty Phase
1. Prosecution evidence
The prosecution introduced a certified copy of a Los Angeles
County Superior Court docket reflecting defendant’s 1971
misdemeanor conviction for assault with intent to commit great bodily
injury under section 245. The prosecutor also introduced victim
impact testimony from Woolley’s family members.

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2. Defense evidence
a. Defendant’s family background
Gina S., defendant’s half sister,6 testified that she had served in
the Air Force for more than 24 years and had obtained the top enlisted
rank of chief master sergeant. Defendant was about 14 years older
than Gina and was the eldest of her nine brothers. Several of her
brothers were successful, but five had been sentenced to prison. Gina
considered defendant successful given that he attended night school
and obtained his college degree. Defendant took care of his son, Lucas,
during the day while his wife, Ellen, worked. Gina and defendant
regularly took their children to parks and the Sacramento Zoo.
Defendant treated Ellen’s daughter Rachel as if she were his child.
Defendant encouraged Gina to go to college.
Gina recalled that her father (defendant’s stepfather) physically
abused their mother with his fists and leather belts, tied her up once,
and threatened her with knives and guns. Gina had “vague
memories” of altercations between her father and her older brothers,
including defendant. Gina believed that she was less than 10 years
old when defendant moved out of the family residence. Defendant
lived close by and stayed in touch with his family members. Gina got
to know defendant as an adult after she joined the military and was
stationed near Sacramento, where defendant was living. When Gina
experienced a midcareer crisis, defendant encouraged her not to quit
and told her that he was proud of her. Gina felt defendant was “one
of the most significant people [she] would have been letting down” if
she quit.
When Gina’s father was older, he lost his vision and one leg and
became depressed. He was “always grousing and negative,” but

6
Gina and defendant had the same mother.

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defendant was always “nice” and patient with him. When Gina’s
brother Dan was unable to care for their father, defendant would
assist, including carrying him to the bathroom. Gina later reflected
on the compassion defendant showed her father before he died, and
how he was able to forgive him for his prior abuse of the family. After
their mother had heart surgery, defendant occasionally cared for both
of his parents and at one point took his stepfather to his home until
he and Gina could find an appropriate facility for him while their
mother recuperated.
Defendant’s half brother Dan, who was five years younger than
defendant, testified that the three older brothers, including
defendant, at times tried to intervene when their father beat their
mother. They were shoved aside and told to go to their room. Dan
recalled that defendant was beaten almost weekly by his stepfather
(Dan’s father) and was once hit over the head with a plaque.
Defendant’s stepfather cursed defendant while beating him, calling
him an “MF” and “[u]ngrateful bastard.” Defendant’s stepfather
would hit him with an open hand and various objects including a piece
of wood, an electrical cord, and a clothes hanger. After the beatings,
defendant sulked and was depressed. Years later, when their parents
became elderly, defendant frequently visited them to see if they
needed assistance.
Kevin, one of defendant’s younger half brothers, testified that
defendant’s stepfather (Kevin’s father) was “vicious” and “out of
control” when he beat defendant. Defendant’s stepfather beat other
children in the family, but defendant received the brunt. Defendant’s
stepfather would hit defendant hard with his hand, an extension cord,
a hose, or a board.
David, defendant’s younger half brother, testified that his father
(defendant’s stepfather) physically beat defendant and their mother

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often when under the influence of alcohol. The father would use belts,
extension cords, a hose, or a board and hit the other children.
Sometimes, defendant and his siblings would go to school with welts
from their beatings.
Ellen Z. testified that she married defendant in 1983 and had a
daughter, Rachel, who is not defendant’s child. Ellen and defendant
had a son, Lucas. Defendant treated Rachel and Lucas the same.
After Lucas was born, defendant stayed home to care for him. Later,
after Lucas attended preschool, defendant worked part time and
earned a college degree in 1992. When Ellen first met defendant, he
enjoyed dancing at clubs, oftentimes without her. Defendant never
hit Ellen or forced her to do anything against her will.
Defendant’s son Lucas testified that at the time of trial, he was
a student at a university in New York and planned to graduate in
2005. Lucas credited defendant with teaching him the value of
education. Defendant was never physically abusive toward Lucas or
his mother.
Defendant’s stepdaughter Rachel referred to defendant as her
father. Rachel testified that she was an early graduate from high
school and attended college, earning her bachelor’s and master’s
degrees. Rachel kept in contact with her parents and after her son
was born, took him to see them. Defendant visited Rachel at times
and helped take care of her son.
b. Defense expert
Dr. Rahn Minagawa, a licensed clinical psychologist with a
specialty in forensic psychology and child and adolescent psychology,
testified that children who are exposed to domestic violence are
“derailed” from their developmental path. According to
Dr. Minagawa, extensive years of research and clinical observations
have shown how children are supposed to develop attachment, morals,

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and “internal abilities to control themselves when they’re angry to
deal with . . . setbacks.” As such children grow older, they are “much
more likely” to develop problems with substance abuse, concentration,
academic performance, and relationships. These children also can
experience a change in brain physiology as a result of being constantly
under anxiety and tension. The continued cycle of domestic violence
can be “turned inwardly” and lead to self-mutilation and suicide
attempts.
Dr. Minagawa testified that children in the same family who are
exposed to domestic violence are impacted differently based on their
strengths and weaknesses, for example, in their ability to fend off
stress in their lives. Older children tend to have more problems
because they often try to protect their younger siblings. Domestic
violence can have “more of an impact” on stepchildren depending on
whether they are treated differently from the perpetrator’s biological
children. Based on Dr. Minagawa’s interviews with defendant’s
family members and his research and clinical experience, he opined
that the family in which defendant grew up is a “textbook case of
domestic violence gone completely amok.”
Dr. Minagawa interviewed defendant’s wife and family
members. He testified that he learned of one domestic violence
incident in which defendant observed his father throw a knife at his
mother, which missed defendant’s mother but struck his brother
David’s head. The police were called to attempt to defuse the
situation. Defendant’s siblings also once heard him pleading for their
father to stop beating their mother and tried to intervene on her
behalf. Defendant’s siblings also repeatedly witnessed their father
striking defendant with various objects, leaving defendant with welts
and scars on his back and legs.

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Dr. Minagawa testified that defendant’s wife stated that
defendant had never hit or slapped her and never threatened her or
their children with a weapon or bodily injury. Defendant’s wife also
told Dr. Minagawa that he never physically abused their children, and
that he did not abuse drugs or alcohol.
On cross-examination, Dr. Minagawa testified that he
administered psychological tests to defendant, who scored within
normal limits with no significant psychological problems. Based on
interviews with defendant’s wife, son, and stepdaughter, the defense
expert agreed with the prosecutor that defendant “did not exhibit in
the house any of the things . . . that a person who experienced the
domestic violence that he experienced as a child, . . . might
perpetrate.” The defense expert likewise agreed that defendant was
“perfectly capable of controlling himself and not committing acts of
violence if he doesn’t want to” and that he was not suggesting, among
other things, that (in the prosecutor’s words) “because . . . defendant
was in a house in which there was a good deal of domestic violence
that he was irresistibly impelled to savagely rape women,” that he did
not “know what he was doing” when he killed Woolley, “that he was
compelled to commit murder because he suffered domestic violence as
a child,” or “that the defendant was somehow forced to or irresistibly
impelled to savagely rape four women.” The expert agreed with the
prosecutor that defendant’s “free will was not affected by the fact that
years before he had been in a household in which domestic violence
had been demonstrated,” and further agreed when the prosecutor
characterized his testimony as saying “that when [defendant]
savagely raped and murdered [Woolley] 13 years after he had
removed himself from this domestic violence situation, it’s because he
chose to do so.”

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II. BATSON/WHEELER CLAIM
Defendant, who is African-American, asserts that the
prosecutor violated his state and federal constitutional rights to equal
protection and a jury drawn from a fair cross-section of the community
when he used his first peremptory challenge against Prospective
Juror A.E., the sole African-American remaining in the venire
following the excusals of prospective jurors for hardship and cause.
(See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler).) In denying the defense’s
Batson/Wheeler motion, the trial court found that defendant had not
made a prima facie showing that the prosecutor’s peremptory
challenge was racially discriminatory. Defendant contends that the
denial of his motion was error. We conclude that defendant has failed
to make a prima facie showing of discrimination.
A. Factual and Procedural Background
In her questionnaire, Prospective Juror A.E. described herself
as a 17-year resident of Kern County who had attended college and
had worked as an administrative assistant for the past seven and a
half years. She indicated that a brother-in-law “went to jail” for
“drugs.” In response to a question asking how she “[felt] about the
way the [brother-in-law’s] matters were handled by the police, the
district attorney, the defense attorney, courts, probation department
and any others involved in the law enforcement and judicial systems,”
A.E. stated, “They were handled fine.” She indicated that she had no
attitude, in general, about law enforcement.
A.E. indicated on the jury questionnaire that she knew of a niece
by marriage who was the victim of a sexual assault but did not know
the details because “[A.E.] wasn’t in the town.” She also stated that
she knew of a brother-in-law who had been accused of a sexual assault
but did not know the details because “[A.E.] wasn’t there and it was

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out of town.” She responded “no” to a question whether viewing
graphic photographs of the victim and crime scene “would preclude
[her] from objectively analyzing the evidence in this case.” Asked
whether the fact that defendant was African-American and the victim
was Caucasian would bias her against or in favor of the defendant or
otherwise affect her ability to be fair and impartial, A.E. indicated
“No.” Asked how she felt about the criminal justice system, she wrote,
“It[’]s ok.” A.E. had a “pos[i]tive” attitude about serving on the jury
and stated that she previously served as a juror in a criminal trial and
an alternate juror in a civil trial. A.E. wrote that her general feelings
about the death penalty were that it is “used too often [and] everybody
wants to get even with everyone.” Asked whether she felt the death
penalty was used too often, seldom, randomly, or appropriately, A.E.
responded: “Too seldom. People are accused [and] then come to find
out they were innocent [and] released.” She indicated she could be a
fair and impartial juror.
During voir dire by the trial court, A.E. stated that she would
not automatically vote for or against the death penalty, if the case
reached that stage. When asked by the court about the apparent
contradiction between her questionnaire answers that the death
penalty was used too often and too seldom, and her response that
people had been accused and later determined to be innocent, A.E.
replied, “Well, just like I stated, people are often given the death
penalty and then later on found out they are not guilty because of the
DNA results or — situation.” She stated that this concern would not
influence any penalty vote or bias her in favor of life imprisonment
without the possibility of parole. In response to subsequent
questioning by defense counsel, A.E. confirmed that notwithstanding
what counsel described as her “misgivings about the death penalty”
as expressed on her questionnaire, she could fairly consider and weigh

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PEOPLE v. HAZLETT
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all the evidence presented and vote for death if she determined it to
be the appropriate penalty.
When it was the prosecutor’s turn to question A.E., he first
asked about her questionnaire response regarding exonerations and
whether she had “mentioned something having to do with DNA, that
it has happened that people have been sent to death row and then
DNA has proved their innocence.” When the prosecutor asked A.E.
whether she thought “that’s ever happened in California,” she
answered “Yes.” The prosecutor followed up, “If you believe that to be
the case, then you must believe that it could happen in this case.” A.E.
replied, “Yes, sir.” The prosecutor asked A.E. whether, “having no
reasonable doubt with regard to [defendant]’s guilt, if you thought it
was an appropriate case, could you vote to sentence him to death?”
She answered, “Probably not.” The prosecutor then inquired, “And
the reason that you could not sentence him to death, even though you
believed beyond a reasonable doubt that he committed the crime,
because you’d be frightened that he, nevertheless, might be innocent
and the death penalty is final?” A.E. responded, “Yes.”
The prosecutor continued, “So doesn’t that mean . . . since you’d
always be worried that the defendant that you found guilty might
somehow not be guilty, doesn’t that mean that you could never vote to
sentence him to death?” A.E. responded, “No. I would just listen to
the evidence and then go from that — from the evidence as far as
finding him guilty or not.” The prosecutor asked, “Do I understand
that you feel yourself perfectly capable of listening to the evidence and
determining whether or not someone is guilty?” A.E. answered, “Yes,
I am capable.” Returning to a discussion of penalty, the prosecutor
then asked, “In the back of your mind — if you find them guilty and
you start considering which penalty to impose, in the back of your
mind will you always have this thought that, even though I believe
he’s guilty, I might be wrong?” A.E. responded, “I think we, as
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Opinion of the Court by Guerrero, C. J.

humans, always have that in the back of our mind, so — ” and then
gave essentially the same answer after being interrupted.
The prosecutor then asked A.E. if, “in view of the fact that you
believe that even if, having heard the evidence, you found the
defendant guilty beyond a reasonable doubt, that he might,
nevertheless, be innocent, wouldn’t it be at the very least extremely
difficult for you to then vote for death?” She replied, “No, because I
would look at the evidence.” Asked if she had read or heard about
cases through the media and thought that, “if that’s what happened,
death is the appropriate penalty,” A.E. said, “[w]ell, like humans, we
all have thoughts like that, yes.” A.E. responded affirmatively when
asked, “If your reason told you that the appropriate penalty in this
case was death, could you come back, sit in the jury box behind you,
look the defendant in the eye and render a verdict of death?” The
prosecutor posed this final question to A.E.: “And some people would
not want to be put in the position of making a life-or-death choice, say
it’s too emotionally rending, it’s too difficult; and some people might
say you know what, even though my reason tells me that the
appropriate penalty is death, there’s nobody I have to look in the
eye . . . so I’m just going to take the easy way out and vote for life
without parole, even though that’s not what I think the penalty should
be. Is there any chance you might be such a person?” A.E. answered,
“No, sir.” At the close of this questioning, the prosecutor passed on
excusing A.E. for cause.
After voir dire and excusals for hardship or cause, which
included the excusal of at least one other African-American
prospective juror, A.E. was one of 64 prospective jurors remaining in

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

the venire, and the sole African-American prospective juror. 7 Twelve
prospective jurors were seated at random in the jury box, including
A.E. When the trial court asked the prosecutor to exercise his first
peremptory challenge, he excused A.E.
Defense counsel objected on Batson grounds. After the
prospective jurors exited the courtroom, counsel stated that the
prosecutor had excused A.E. “for the sole reason she’s African-
American.” Counsel continued, “I believe that at this stage then it’s
up to the prosecutor — or the Court — it’s appropriate for the Court
to ask the prosecutor for his reasons in make — other than the fact
that she’s African-American, the only African-American left on the
possible panel.”
The trial court agreed that A.E. appeared to be African-
American. It indicated it did not know if any African-American
prospective jurors remained in the venire but mentioned that “[s]ome
were excused” and said that it would make a record later. The court
then asked the prosecutor if he wanted to respond.
The prosecutor stated, “I do not.” The prosecutor said that by
asking for his reasoning for excusing A.E., the trial court, would, in
effect, be indicating that it had determined the defense had
established a prima facie case of discrimination, and thereby shift the
burden of proof on appeal. The prosecutor then stated that “it’s
incumbent upon the Court to examine the record and [its] own
memory of [A.E.]’s responses in order to determine whether or not

7
The juror questionnaire did not ask prospective jurors to
identify their race. As discussed post, however, the trial court
indicated on the record that Prospective Juror A.E. was the sole
African-American remaining after prospective jurors were screened
for hardship and excused for cause.

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

there appears to be a valid reason for which I could exercise a
p[er]emptory challenge, without my saying anything.”
The trial court replied that it had taken notes and was “not
prepared to order the D.A. to respond.”8
Defense counsel asked the court to find that the prosecutor had
not stated a race-neutral reason for excusing A.E. Counsel also
reiterated that there were no other African-American prospective
jurors in the potential jury panel. Counsel further asked the court to
consider the circumstances under which the prosecutor questioned
J.M., another African-American prospective juror, who had been
excused earlier in the jury selection process. Prospective Juror J.M.
had been excused for an inability to fairly consider all the evidence,
namely, graphic crime scene photographs. 9 (See Code Civ. Proc.,
§ 225.) Counsel asserted that the prosecutor’s manner of questioning
J.M. could “only [be] categorize[d] as browbeating” and that the
prosecutor misstated the law in implying to J.M. that she would be
“forced” to look at graphic photographs in this case. Counsel argued
that these circumstances, and what counsel characterized as the
absence of any indication in A.E.’s questionnaire or voir dire responses
that she was biased for or against the death penalty, established a
prima facie case of discrimination.

8
We disagree with the dissent categorizing this exchange as “the
trial court acquiesc[ing] to the prosecutor’s refusal to explain why it
struck A.E.” (Dis. opn. of Evans, J., post, at p. 23.) We have
recognized that “prosecutors may be reluctant to state their reasons
for the record if doing so would jeopardize or nullify a ruling in their
favor that the defense failed to raise an inference of discrimination.”
(People v. Scott (2015) 61 Cal.4th 363, 388.)
9
Defendant does not challenge the trial court’s dismissal of
Prospective Juror J.M. on appeal.

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

The trial court reiterated that it would not make a “prima facie
finding” of discrimination but offered the prosecutor another
opportunity to respond. The prosecutor replied that his questioning
of J.M. was irrelevant and that in any event, it was similar to a
question defense counsel asked other prospective jurors. The trial
court recalled that several prospective jurors had been asked similar
questions. After stating that it was not sure whether J.M. “was the
only African-American left at the time either,” the trial court
concluded, “I believe that if one were to look at . . . [A.E.’s] . . . answers
to the questions that one would find a logical, rational reason why the
District Attorney would excuse her, so I don’t believe there’s a prima
facie showing that the D.A. is somehow discriminating . . . against any
particular class of individual,” and it denied the Batson/Wheeler
motion.
Jury selection continued, with defense counsel exercising a
peremptory challenge, and the prosecutor accepting the jury as
constituted. Thereafter, defense counsel exercised nine additional
peremptory challenges and twice accepted the jury as constituted; the
prosecutor exercised three additional peremptory challenges and
accepted the jury as constituted eight times. After the jury was
selected, the defense renewed its Batson/Wheeler motion. In denying
the renewed motion, the trial court stated that it did not note any
other African-American prospective jurors remaining in the venire,
but “[t]here were certainly some that were excused.”
Much later, during a conference with counsel while the jury was
deliberating the appropriate penalty, the trial court sought to clarify
its ruling denying the defense Batson/Wheeler motion. During this
conference the court cited Paulino v. Castro (9th Cir. 2004) 371 F.3d
1083, 1090 (Paulino), a decision published after the jury was selected
in this case that held that “ ‘California courts in following the “strong
likelihood” language of Wheeler are not applying the correct legal
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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

standard for a prima facie case under Batson.’ ” The trial court
continued: “I just want to put on the record, that when [defense
counsel] made his objection that I did not find — as you know, I did
not find a prima facie case, because I did not believe there was any
inference of discriminatory purpose. [¶] And this case [Paulino]
reemphasized . . . that the inference of discriminatory purpose was
the standard, not what some [c]ourts had previously stated was to
show a strong likelihood. So, clearly, I don’t believe there was an
inference.” The court added that “the definition of prima facie case
is — and the law is — it used to be — or it was interpreted to mean
that the defendant had to show a strong likelihood. However, the
[f]ederal [c]ourt and the California Supreme Court has indicated, no,
it means they — the objector, the defendant, would have to show there
is an inference of discriminatory purpose.”
B. Discussion
A prosecutor’s discriminatory peremptory challenge of a
prospective juror based on their race or ethnicity violates a
defendant’s right to equal protection under the Fourteenth
Amendment to the United States Constitution and the right to trial
by a jury drawn from a representative cross-section of the community
under article I, section 16 of the California Constitution. (Batson,
supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–277;
People v. Banks (2014) 59 Cal.4th 1113, 1145 (Banks).) “Exclusion of
even one prospective juror for reasons impermissible under Batson
and Wheeler constitutes structural error, requiring reversal.” (People
v. Gutierrez (2017) 2 Cal.5th 1150, 1158.)
“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

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

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.” ’ ” (Banks, supra, 59 Cal.4th at p. 1146.) “Ordinarily,
we review the trial court’s denial of a Wheeler/Batson motion
deferentially, considering only whether substantial evidence supports
its conclusions.” (People v. Bonilla (2007) 41 Cal.4th 313, 341
(Bonilla).)10
For cases tried before the United States Supreme Court’s
decision in Johnson v. California (2005) 545 U.S. 162, which clarified
the standard to be applied at the first stage of the Batson inquiry (id.
at p. 169), “we have ‘adopted a mode of analysis under which, rather
than accord the usual deference to the trial court’s no-prima-facie case
determination, we “review the record independently to determine
whether the record supports an inference that the prosecutor excused
a juror on a prohibited discriminatory basis.” ’ ” (People v. Holmes,
McClain and Newborn (2022) 12 Cal.5th 719, 760; see also People v.
Rhoades (2019) 8 Cal.5th 393, 428–429 (Rhoades).) As stated, during
penalty phase deliberations the trial court said that it had applied this
standard in determining whether a prima facie showing of
discrimination had been made, citing the then-recent decision in

10
Code of Civil Procedure section 231.7, enacted in 2020 (Stats.
2020, ch. 318) establishes a new framework for evaluating peremptory
challenges to identify instances of improper discrimination. The
statute applies only in trials in which jury selection began on or after
January 1, 2022 (Code Civ. Proc., § 231.7, subd. (i)). It is inapplicable
here and nothing we say in this opinion, or in a dissent (see dis. opn.
of Evans, J., post, at pp. 18–19, fn. 2) should be understood as an
interpretation of that statute.

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

Paulino, supra, 371 F.3d at page 1090. Nevertheless, out of an
abundance of caution we independently consider whether the record
supports an inference that the prosecutor excused Prospective Juror
A.E. because of her race.
“We consider ‘all relevant circumstances’ in making that
determination. [Citation.] We have identified certain types of
evidence as ‘especially relevant,’ including: ‘whether a party has
struck most or all of the members of the venire from an identified
group, whether a party has used a disproportionate number of strikes
against members of that group, whether the party has engaged those
prospective jurors in only desultory voir dire, whether the defendant
is a member of that group, and whether the victim is a member of the
group to which a majority of remaining jurors belong. [Citation.] We
may also consider nondiscriminatory reasons for the peremptory
strike that “necessarily dispel any inference of bias,” so long as those
reasons are apparent from and clearly established in the record.’ ”
(Rhoades, supra, 8 Cal.5th at p. 429; see also Batson, supra, 476 U.S.
at pp. 96–97 [“relevant circumstances” include a “ ‘pattern’ of strikes
against black jurors” and “the prosecutor’s questions and statements
during voir dire examination”].)
Based on an independent review of the record, we conclude that
the totality of the circumstances surrounding the prosecution’s
excusal of A.E. do not support an inference of discrimination.
We first consider “ ‘whether a party has struck most or all of the
members of the venire from an identified group, [and] whether a party
has used a disproportionate number of strikes against members of
that group.’ ” (Rhoades, supra, 8 Cal.5th at p. 429.) Here, the
prosecutor used his first peremptory challenge, out of a total of four,
to excuse the sole African-American prospective juror remaining on
the venire after other prospective jurors had been excused for

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Opinion of the Court by Guerrero, C. J.

hardship and cause. The dissent relies heavily on this factor,
contending that the “immediate removal of the lone Black prosecutive
juror” in a case that was “highly racially fraught . . . raised an
inference of discrimination.” (Dis. opn. of Evans, J., post, at p. 1; see
id. at pp. 7–8 [identifying prosecutor’s use of his first peremptory
strike to remove “the last remaining juror of [defendant’s] minority
race” in a case that was “highly racially fraught” as circumstances
that “ ‘loom large’ ” in this case].)11
“There is no doubt that Blacks constitute a cognizable group for
[Batson/]Wheeler purposes” (People v. Turner (1986) 42 Cal.3d 711,
719), and the one strike eliminated all the African-American jurors
remaining in the jury pool in this case. Yet it is important here that
defendant’s Batson/Wheeler argument is based on only one
peremptory challenge. “Although circumstances may be imagined in
which a prima facie case could be shown on the basis of a single
excusal, in the ordinary case . . . to make a prima facie case after the
excusal of only one or two members of a group is very difficult.”
(People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.) Indeed, when only
one excusal is involved, we have repeatedly held that “ ‘ “the small
absolute size of [the] sample makes drawing an inference of
discrimination from this fact alone impossible.” ’ ” (People v. Taylor
(2010) 48 Cal.4th 574, 614–615 (Taylor); see also id. at p. 614 [“That
the prosecutor excused a single African-American prospective juror,
without more, does not support the inference the excusal was based
on race”]; People v. Hamilton (2009) 45 Cal.4th 863, 899 [describing
the trial court as having “correctly rejected [the] defendant’s

11
There are two dissenting opinions, one written by Justice Liu
and one by Justice Evans. Because they join in each other’s dissenting
opinions, we refer to them collectively as “the dissent” and identify the
specific opinion to which we refer where appropriate in parentheses.

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

argument that the challenge of the only Black person subject to
challenge was sufficient in and of itself to suggest” an inference of
discrimination]; accord, Bonilla, supra, 41 Cal.4th at p. 342 [“all
African-Americans — two of two — were struck from the juror pool,”
albeit where the defendant was not African-American].)12

12
The dissent contends that, unlike “other courts,” “this court has
not yet had occasion to consider” a “per se rule that striking the last
remaining juror of a defendant’s race is unlawful.” (Dis. opn. of Evans,
J., post, at p. 9.) But we have adopted a well-established framework,
and it does not treat any factor — including striking the last
remaining juror of a defendant’s race — as dispositive. We see no
basis to depart from our settled case law which considers whether a
totality of the relevant facts gives rise to an inference of
discriminatory purpose. (Banks, supra, 59 Cal.4th at p. 1146.)
Moreover, we are not bound by the decisions of other courts
adopting the type of per se rule cited by the dissent. (See People v.
Williams (1997) 16 Cal.4th 153, 190.) We note, however, that courts
have also rejected this approach. (See, e.g., Crittenden v. Ayers (9th
Cir. 2010) 624 F.3d 943, 955 [“the prosecutor’s use of a peremptory
strike against the only African-American prospective juror is a
relevant consideration, although it does not by itself raise an inference
of discrimination”]; U.S. v. Bergodere (1st Cir. 1994) 40 F.3d 512, 516
[“the mere fact that the prosecutor challenges the only juror of a
particular race, without more, does not automatically give rise to an
inescapable inference of discriminatory intent”]; State v. Walker (Wis.
1990) 453 N.W.2d 127, 174, fn. 7 [rejecting a “bright-line rule that
when a prosecutor uses peremptory challenges to exclude all members
of defendant’s race from the petit jury, a prima facie case is
automatically established, even if only one peremptory strike is
needed to exclude all members of defendant’s race,” especially since
the high court in Batson “did not adopt such a rule, even though all
four black members of the panel of prospective jurors were eliminated
by the prosecutor’s peremptory challenges”].) None of this means this
opinion somehow “downplays the significance of striking the last juror
of a defendant’s race in the totality of the circumstances analysis” (dis.
opn. of Evans, J., post, at p. 10), or “fails to attribute proper
significance to the prosecutor’s conduct” (id. at p. 11). It just means

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Opinion of the Court by Guerrero, C. J.

Turning to the other circumstances surrounding the excusal, the
prosecutor used his first challenge on A.E. and then was prepared to
accept the jury as constituted. We conclude that the timing of this
challenge carries only limited significance. (See, e.g., People v. Reed
(2018) 4 Cal.5th 989, 1000 (Reed) [no prima facie case where
prosecutor exercised five of his first eight peremptory strikes on Black
jurors; the prosecutor’s overall use of strikes “did not target black
jurors in a particularly disproportionate manner”].) We have in the
past found it somewhat noteworthy that a prosecutor declined to
exercise an early peremptory challenge on a prospective juror whose
excusal later formed the subject of a Batson/Wheeler motion, observing
that this sequence “tends to suggest” that the later challenge to the
prospective juror was not based on race. (People v. Battle (2021)
11 Cal.5th 749, 777 (Battle).) But we also noted in Battle that “[a]
delay in striking [a juror] could also align with a strategy to avoid
detection of race-conscious strikes.” (Ibid.) As this latter observation
in Battle suggests, it is not especially telling that the prosecutor used
his first peremptory challenge on A.E., as opposed to waiting until
later to exercise the challenge. The prosecutor could have concluded
early on, based on race-neutral reasons, that he did not want A.E. as
a juror regardless of how the jury was otherwise composed.
Regarding another circumstance we identified as relevant in
Rhoades, any possible inference of discrimination here is undercut by
the prosecutor’s thorough questioning of A.E. (See Rhoades, supra,
8 Cal.5th at p. 429 [courts consider “ ‘whether the party has engaged
[the excused] prospective jurors in only desultory voir dire’ ”].) As
recounted above, the prosecutor probed A.E.’s views regarding the
death penalty at considerable length during voir dire. After A.E. said

the majority and the dissenters in this case have different views
regarding the totality of the relevant facts surrounding A.E.’s excusal.

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

she could “[p]robably not” vote to sentence defendant to death even if
she thought it was an appropriate case, the prosecutor pressed further
to inquire into the reason A.E. held this view, leading to further
dialogue in which A.E. ultimately agreed that, in an appropriate case,
she could look defendant “in the eye and render a verdict of death.”
The prosecutor then passed on A.E. for cause. This voir dire is not
suggestive of a discriminatory intent.
Next, we consider “ ‘whether the defendant is a member of’ ” the
same identifiable group as the excused prospective juror (Rhoades,
supra, 8 Cal.5th at p. 429), “ ‘and whether the victim is a member of
the group to which a majority of remaining jurors belong’ ” (ibid.). In
this respect, defendant argues that the prosecutor’s challenge of the
sole African-American prospective juror remaining in the venire took
on additional significance because both defendant and the challenged
prospective juror are African-American, while the homicide victim
and the victims of the uncharged sexual assaults were Caucasian.
Like the dissent (dis. opn. of Evans, J., post, at pp. 11–13), defendant
further notes that certain evidence and argument at trial involved a
racial dynamic, and that the case was ultimately tried before what he
describes as an all-White jury.13
We agree that these circumstances are relevant in determining
whether a prima facie showing of discrimination has been made. (See
People v. Johnson (2019) 8 Cal.5th 475, 510 (Johnson); Rhoades,

13
The defense represented at trial that no African-American
prospective jurors remained in the venire after A.E.’s excusal, but no
record was made regarding the race of seated jurors, alternate jurors,
or prospective jurors challenged by the People, other than A.E. The
record thus does not foreclose the possibility of seated jurors who were
neither African-American nor Caucasian. Nevertheless, the People do
not dispute defendant’s description of the jury as “all-White,” and we
accept this characterization for purposes of this discussion.

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Opinion of the Court by Guerrero, C. J.

supra, 8 Cal.5th at p. 429; Taylor, supra, 48 Cal.4th at p. 643.) Yet,
“standing alone” (Battle, supra, 11 Cal.5th at p. 775), the facts upon
which defendant and the dissent rely — “a Black defendant, the
excusal of [a] Black prospective juror[], [a] White victim[] . . . , and a
conviction and sentence imposed by” what we assume for present
purposes to be “an all-White jury” — “are not dispositive” (Battle, at
pp. 774, 775). Instead, “we must carefully scrutinize” the totality of
the circumstances “ ‘with these and all other relevant circumstances
in mind.’ ” (Id. at p. 775.) And here, there is nothing beyond these
facts, and the prosecutor’s exercise of his first peremptory challenge
on A.E., to support defendant’s argument regarding an inference of
discrimination. We conclude that is not enough.
Like the dissent, we acknowledge this case presents “racial
elements” (dis. opn. of Evans, J., post, at p. 13) for us to evaluate when
examining the prosecutor’s exercise of a peremptory challenge. In
considering this claim, Battle, supra, 11 Cal.5th 749 is instructive.
There, we reviewed a trial court’s determination that the defendant
had failed to establish a prima facie case of discrimination in the
excusal of a Black prospective juror. The prosecutor had excused this
prospective juror and another Black prospective juror using two of his
first 11 peremptory challenges. (Id. at p. 770.) On appeal, in
considering whether the totality of the evidence was sufficient to
permit an inference of discrimination, we “first note[d] that the
presence of salient racial issues in the case raises concerns that
warrant careful consideration.” (Id. at p. 774.) Specifically, we
observed that the defendant in Battle was Black and his victims were
White. (Ibid.) We explained, “This provided the prosecutor with a
plausible motive to strike Black prospective jurors on the
impermissible ‘assumption or belief that’ they ‘would favor’ [the
defendant] solely because of their shared race.” (Ibid.) In addition to
the “ ‘ “heightened concerns” ’ ” associated with those circumstances

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(ibid.), we also noted that the defendant was ultimately convicted and
sentenced to death by an all-White jury in what we described as a
“racially charged” (ibid.) case in which the elderly victims were
abducted from their home, forced into the truck of their car, driven out
to the desert, and then stabbed to death; and in which the defense case
in mitigation included evidence that the defendant had been the
victim of racial discrimination as a child. (Ibid.) Our decision in
Battle summarized these “salient racial issues at play” as “significant”
but not “dispositive”; the focus remained on the totality of the
circumstances rather than these facts alone. (Id. at pp. 774, 775.) We
ultimately concluded that the totality of the circumstances did not
support an inference of discrimination. (Id. at p. 785.)
The analysis in Battle is consistent with our conclusion in this
case that the “salient racial issues” presented (Battle, supra,
11 Cal.5th at p. 774) are not “dispositive” (id. at p. 775), and that more
is required for the prosecutor’s exercise of a single peremptory
challenge to give rise to a prima facie showing of discrimination. 14
Although both the dissent and defendant assert that other
circumstances contribute to an inference of discrimination here, we
find these arguments unpersuasive. The dissent, for its part, contends

14
Of course, no two cases are identical. In Battle the prosecutor
did not immediately strike the prospective juror at issue, instead
using his ninth challenge on her (Battle, supra, 11 Cal.5th at p. 770);
and after the trial court denied the defendant’s Batson/Wheeler motion
the prosecutor twice accepted panels including another Black juror,
who was ultimately struck by the defense, with another Black
prospective juror being chosen as an alternate juror. (Id. at p. 772.)
Here, as explained, there were no African-American prospective
jurors remaining in the venire after A.E. was struck, so we have no
way of knowing whether the prosecutor would have exercised
peremptory challenges against them. We nonetheless find Battle
instructive in a case with racial elements like those present here.

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that the prosecutor “evoked offensive racial imagery and themes” in
order to “ ‘implant both racial fears and prejudices in the mind of the
jury’ ” (dis. opn. of Evans, J., post, at p. 12), and it relies on Bennett v.
Stirling (4th Cir. 2016) 842 F.3d 319 (Bennett) to support its position.
We find the case inapposite.
In Bennett, supra, 842 F.3d at page 324, the federal court held
that an improper appeal to racial prejudice occurred where the
prosecutor’s closing argument in a case involving a black defendant
“alternated between characterizing [the defendant] as a primitive,
subhuman species and a wild, vicious animal.” The court noted that
the prosecutor “chose to use racially charged language from the first
sentence of his opening argument to his final soliloquy, casting aside
the race-neutral presentation he had [previously] employed with the
[prior] mixed-race jury.” (Id. at p. 321.) Before the jury that convicted
the defendant, the prosecution described him as a “ ‘huge, giant man,
six-six, six-seven, brutal monster size’ ” (id. at p. 326), and then
referred to him as “ ‘King Kong on a bad day,’ ” and “a ‘caveman,’ a
‘mountain man,’ a ‘monster,’ a ‘big old tiger,’ and ‘[t]he beast of
burden’ ” (id. at p. 321). We disagree with the dissent that the
circumstances here, including the prosecutor’s use of the adjective
“savagely” during expert questioning at the penalty phase, are at all
comparable to the disturbing facts of Bennett. (Dis. opn. of Evans, J.,
post, at p. 12.) In context, this description of the way defendant raped
women does not support an inference that A.E. was excused because
of discrimination during the jury selection process.15 As in Battle,

15
The prosecutor’s examination of the expert witness makes clear
the behavior he was referring to when stating defendant “savagely”
raped women. For example, after his initial question using the words
“savagely rape,” the prosecutor inquired of the witness, “You are not
suggesting, are you, that when he bit a woman so hard that the scars

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supra, 11 Cal.5th at page 785, “[a]lthough the racial context of the
case raises some initial concerns, [defendant’s] showing fails to
establish a basis for inferring that the prosecution may have struck a
particular Black juror because of her race.”
For his part, defendant contends the prosecutor’s voir dire of
J.M. concerning photographic evidence, as juxtaposed against the
questioning of other prospective jurors of different races, showed that
he was focused on removing African-American prospective jurors
during jury selection.16
In perceiving a discrepancy, defendant identifies Prospective
Jurors J.B. and C.G. as not having been questioned by the prosecutor
about their ability to view disturbing photographs even though they
also expressed reservations on this subject in their respective
questionnaire responses. Defendant acknowledges that the
prosecutor asked another prospective juror, N.P., about the possible
effect that viewing “extremely graphic, somewhat, and gruesome
photographs” would have on her pregnancy, but he characterizes the
prosecutor’s questioning of J.M. as being “much more aggressive.”
Defendant’s argument asks us to undertake an unusual form of
comparative juror analysis that would juxtapose the treatment of

remained on her 20 years later, that he had to do it?” Similarly, after
a subsequent question involving the same “savagely rape” description,
the prosecutor asked, “And when he kicked one of these women on the
ground repeatedly so hard that he left [a] shoe print on her, he knew
what he was doing, did he not?” We do not believe the nature of these
remarks — contextualizing defendant’s conduct for purposes of the
penalty phase of the case — establishes a prima facie showing of
discrimination during jury selection.
16
The dissent does not appear to rely on this argument to support
its position that defendant made a prima facie showing of unlawful
discrimination. (See dis. opn. of Evans, J., post, at p. 6.)

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Opinion of the Court by Guerrero, C. J.

J.M., who was dismissed for cause, against two other prospective
jurors who were also dismissed for cause. It is questionable at best
whether this sort of comparison among prospective jurors excused for
cause is capable of shedding light on the existence of discriminatory
intent in the dismissal of A.E. Even assuming the purported
difference in the questioning of J.M. and other prospective jurors is
relevant to the question of discriminatory intent in the excusal of A.E.,
we perceive no indication of bias upon reviewing and comparing the
voir dire of these prospective jurors.
As background, J.M. repeatedly indicated on her written
questionnaire that she might have difficulty viewing the photographs
in this case, stating in response to one question (Question 41), “I
wouldn’t want to see the photos,” and in response to another
(Question 66), “probably emotional if I have to view photos.”17 During
voir dire, the court asked about “the question about the photos and
the crime scene.” It inquired, “You indicated that you wouldn’t want
to see the photos. And I appreciate that. I can understand that. I
don’t know that any of us want to see the photos, but you understand
that as a juror that would be necessary; if you were a juror, you would,
in fact, have to look at the photos?” J.M. replied, “Yes.” When the
trial court then asked if she could do that, J.M. replied, “If they’re just
pictures of people, I could, but — ,” at which point the trial court
interjected, “Now you have to understand, it’s not going to be — it’s

17
Question 41 on the jury questionnaire asked, “If you are chosen
as a juror in this case, you will hear evidence about the violent death
of Tana Wooley [sic] and you will see graphic photos of her and the
crime scene. Do you feel that viewing such photos would preclude you
from objectively analyzing the evidence in this case?” Question 66
asked, “Is there ANYTHING that you would like to bring to the court’s
attention that might affect your ability to be a fair and impartial juror
in this case? [Indicate if you wish to discuss this matter privately.]”

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PEOPLE v. HAZLETT
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going to be pictures of the victim.” The trial court added, “Which
means that it’s not TV, it’s not the movies. It might be TV in the sense
that it’s graphic, you know, news, CNN, or whatever news you might
watch.” J.M. replied, “I don’t watch those, either.” The trial court
responded, “I understand that, but the question becomes in this you
would have to look at photos of the victim, a deceased victim. [¶] Is
that something that would cause you not to be able — is there
something about that you could not — simply could not look at them
and weigh the evidence?” J.M. replied, “Well, I guess if I was chosen
and I had to look at them, I would look at them.” The judge then
asked, “Okay. Do you understand there’s a difference between, judge,
I can’t do that and, judge, I don’t want to but if you have to I have to?
Do you understand there’s a difference?” J.M. answered, “Yes. I don’t
like shots, either, but when I have to take them, I do.”
When it was time for the prosecutor to question J.M., he asked
first about another topic implicated by her questionnaire responses.
Turning to the subject of photographs, he said that she was “the only
prospective juror who mentioned a difficulty with looking at the
photographs twice in your questionnaire” and inquired, “Do you
understand that if you’re chosen as a juror in this case, I’m going to
be asking you to look at some very graphic, violent photographs, not
because I want to but because it’s necessary?” J.M. replied, “I
understand that. That’s why I had to put it down there.” The
prosecutor also asked J.M., “In this case it would be necessary for a
juror to understand the evidence, to intently examine photographs
that depict forensic evidence that would be extremely unpleasant to
look at. Do you understand that?” She answered, “Yes, I do.” The
prosecutor followed up, “Do you think that you could do that? And
some people can’t, and it’s perfectly all right.” J.M. responded, “I’ll
tell you, I’ll do the best I can, but those — they really work with your
emotions in your head.” When the prosecutor asked if there was “any

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

chance that you would simply glance at they [sic] really graphic
picture and simply be unable to look at it any longer,” J.M. replied,
“Real chance.” In his last question concerning the photographic
evidence, the prosecutor asked J.M., “Is there any chance that if you
were forced or required to look at a number of graphic photographs,
that your emotions might take over and you would be unable to
dispassionately analyze what you were looking at?” She answered,
“Yes. And that’s the truth.”
Turning to the three other prospective jurors that defendant
argues were similarly situated but questioned differently, one of J.B.’s
questionnaire responses indicated qualms about certain violent
visuals and that she did not “even go to violent movies.” Before the
attorneys had an opportunity to question J.B., the trial court said it
wanted to talk with her about “the graphic nature of any
photographs.” The court told her, “it’s not TV. It’s not the movies.
This is real.” After further questioning in which J.B. described her
reaction to a gory movie in high school, which she listened to but could
not watch, the trial court told her, “In this case . . . you’re going to
have to look at [photos] in order to be a juror in this case,” asking if
she thought “that might prejudice you or cause you some emotional
response you just could not be fair?” J.B. responded, “I — I — in my
heart I just don’t think I could.”
Questioning then shifted to J.B.’s views regarding the death
penalty. During this questioning, J.B. said that “[her] conscience
would tell [her]” to automatically vote against the death penalty. The
trial court then asked whether J.B. could “get there to the point where
the death penalty would be appropriate?” In replying, J.B. said, “And
it’s really hard in this far — on the other side of sitting as a potential
juror, um, it’s hard to say. I don’t know what my feelings, given my
inabilities to watch any kind of graphic violence and, you know, with
my background having been molested as a little kid, I don’t know —
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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

bringing with me to that, I don’t know what my reactions would be.
That’s the only honest answer I can give you. [¶] Um, as — as I sit
here right now I — I don’t think I would be for the death penalty, but,
you know, if those surface — you know, those emotional things were
driving me, who — you know, I don’t know. I think I probably — I
don’t know.” When it was the prosecutor’s turn to question J.B., most
of his questions related to her views toward the death penalty, with
no probing of her reaction to graphic photos. At the conclusion of this
questioning, the prosecution and the defense both passed on J.B. for
cause.18
C.G. had stated in her questionnaire response that “[i]t would
be a definite possibility” that viewing graphic photos of the crime
scene would preclude her from objectively analyzing the evidence.
During voir dire, the trial court inquired, “Let me ask this: The real
question, though — and it is real life, but do you think it would upset
you if you have to watch — not watch, see a photograph or listen to
the graphic nature of this crime that it would cause you not to be able
to listen fairly and impartially?” C.G. responded, “I would certainly
try and be fair and impartial, but I don’t know. I have not been put in
this position before, so I don’t know.” The trial court followed up, “We
actually had a juror, and I didn’t know this, has a condition where she
simply can’t look at something like this. You’re not claiming that,
though?” C.G. responded, “No.” The trial court then inquired into
C.G.’s views regarding the death penalty. The prosecutor successfully
challenged C.G. for cause before asking her any questions.

18
Although both the prosecution and the defense initially passed
on excusing J.B. for cause she was eventually dismissed for cause due
to her views regarding the death penalty. (See Wainwright v. Witt
(1985) 469 U.S. 412; Witherspoon v. Illinois (1968) 391 U.S. 510.)

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

Lastly, N.P.’s questionnaire responses raised no concerns about
viewing case-related photographs. Even so, the prosecutor asked
N.P., who was pregnant, “If you were to learn that this case probably
will call for the examination of extremely graphic, somewhat, and
gruesome photographs, would that — is there any possibility that that
might have some [effect] on your pregnancy?”
It is clear from this record that the treatment of these
prospective jurors provides no indication of racial bias — even
assuming it is appropriate to consider the questioning of these
prospective jurors in evaluating the peremptory challenge to A.E.
(See Battle, supra, 11 Cal.5th at p. 783 [rejecting a similar argument
as lacking record support].) The prosecutor’s failure to question J.B.
regarding her reaction to graphic photos was understandable in light
of the trial court’s earlier voir dire. J.B. told the trial court she did not
“think [she] would be for the death penalty” but indicated that her
position might change due to feelings she associated with viewing
depictions of graphic violence and the childhood trauma she had
suffered. This response suggested that any strong reaction J.B. might
have to depictions of violence made her a better juror for the
prosecution than she would otherwise be. The prosecutor could have
concluded from this answer that it would be unnecessary for him to
inquire further into J.B.’s reactions to graphic photographs, and more
prudent to focus on her views regarding the death penalty. As for
C.G., the prosecutor successfully excused her prior to asking any
questions, making any comparison between her and J.M. inapt.
Regarding the alleged disparity in how the prosecutor phrased
his questions, both the questions posed to J.M. and how they were
articulated were reasonable in light of her questionnaire response
that she “wouldn’t want to see the photos” in this case and her
subsequent answers to the trial court’s questions, in which, among her
other responses, she analogized looking at graphic photos to getting a
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Opinion of the Court by Guerrero, C. J.

shot. The prosecutor’s questioning of J.M. “was not outside the norm
of typical questioning.” (Battle, supra, 11 Cal.5th at p. 783.)
Moreover, the prosecutor’s statement to N.P. — who, again, had not
indicated any concerns about viewing graphic photos in her
questionnaire responses — that jurors would be called upon to
examine “extremely graphic, somewhat, and gruesome photographs”
was similar to how the prosecutor presented the photos to J.M.,
further undermining any suggestion of bias. (See ibid. [declining to
attach significance to “subtle phrasing variations” in a prosecutor’s
questions].) Indeed, N.P. alone was asked whether viewing the photos
might have health consequences.
Considering the totality of the circumstances, we conclude that
defendant has failed to make a prima facie showing of discriminatory
intent. Carefully “examining the record for obvious race-neutral
reasons for the prosecutor’s peremptory strikes that would
‘ “necessarily dispel any inference of bias” ’ ” reinforces this
conclusion. (Johnson, supra, 8 Cal.5th at p. 510, fn. 7.) A.E.’s voir
dire responses, regarding how the possibility of exoneration would
affect her ability to impose the death penalty, constitute a race-
neutral reason for her excusal that is “ ‘apparent from and “clearly
established” in the record’ ” (Rhoades, supra, 8 Cal.5th at p. 431) and
would function to “definitively undermine any inference of
discrimination that [we] might otherwise draw from viewing[, for
example,] the statistical pattern of strikes in isolation” (ibid.).19

19
Defendant challenges this court’s practice of upholding on
appeal a trial court’s finding that a defendant failed to establish a
prima facie case of discrimination if there was an obvious race-neutral
reason or reasons in the record for the peremptory excusal of a
particular prospective juror. We reject defendant’s position that this
practice is somehow inconsistent with Batson and subsequent high

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

As described earlier in evaluating defendant’s Batson/Wheeler
claim, in her jury questionnaire A.E. stated both that the death
penalty was used too often and too seldom, further explaining that
“People are accused [and] then come to find out they were innocent
[and] released.” In subsequent questioning by the trial court, A.E.
said she would not automatically refuse to vote for the death penalty
but reiterated that “people are often given the death penalty and then
later on found out that they are not guilty because of the DNA results
or — situation.” Upon questioning by the defense, A.E. indicated an
ability to vote for the death penalty when appropriate. But then,
when questioned by the prosecutor, A.E. stated that she believed it
was possible for a postconviction exoneration to occur in this case. She
also answered “[p]robably not” when asked whether, “having no
reasonable doubt with regard to [defendant]’s guilt, if you thought it

court precedent. As we explained in Rhoades, supra, 8 Cal.5th 393, in
considering race-neutral reasons for a peremptory challenge “ ‘that
are apparent from and “clearly established” in the record [citations]
and that necessarily dispel any inference of bias’ ” (id. at p. 431), an
appellate court is not merely “imagin[ing] race-neutral reasons the
prosecutors might have given” (id. at p. 430) because to do so “would
go beyond our proper role in assessing the prima facie case” (id. at
p. 431). Yet “when the record of a prospective juror’s voir dire or
questionnaire on its face reveals a race-neutral characteristic that any
reasonable prosecutor trying the case would logically avoid in a juror,
the inference that the prosecutor was motivated by racial
discrimination loses force.” (Ibid., italics added.) We further stressed
“that in considering these grounds on appeal we do not suggest that a
trial court evaluating a Batson-Wheeler prima facie case should search
the record for reasons for the peremptory challenges instead of asking
the attorney who exercised them for his or her reasons as part of a
second-step inquiry.” (Id. at p. 431, fn. 16.) Because an appellate
court can examine the record in more detail than a trial court during
jury selection, “[w]hat is the soundest and most practical approach for
trial courts is not necessarily the soundest and most practical
approach for appellate courts, and vice versa.” (Ibid.)

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

was an appropriate case, could you vote to sentence him to death?”
and indicated that, in considering penalty, she would “always” have
the possibility of an erroneous guilt-phase verdict in the back of her
mind.
It is apparent from the record that A.E.’s answers to questions
regarding the death penalty constituted an “ ‘obvious’ ” basis for a
peremptory challenge. (Rhoades, supra, 8 Cal.5th at p. 431, italics
omitted.) We have repeatedly found that “[a] prospective juror’s
reluctance to vote for a penalty verdict of death is a permissible, race-
neutral reason for exercising a peremptory challenge.” (People v.
Elliott (2012) 53 Cal.4th 535, 561; see also Battle, supra, 11 Cal.5th at
p. 779; Rhoades, at pp. 431–432; People v. Cash (2002) 28 Cal.4th 703,
725 [“possible reluctance to vote for death” constitutes a permissible
race-neutral reason for a peremptory challenge in a capital case].)
The dissent discounts A.E.’s stated reservations about imposing
the death penalty, describing them as having “nominal significance”
because they purportedly “concerned a circumstance — lack of DNA
evidence — that would not arise in this case.” (Dis. opn. of Evans, J.,
post, at p. 19; see id. at pp. 21–22 [“in this case, lack of DNA evidence
was not a factor”].) But the prosecutor certainly would not have to
agree with the dissent’s view of the strength of DNA evidence in this
case (dis. opn. of Evans, J., post, at pp. 21–22), nor would the
prosecution have been able to precisely predict — at the time of jury
selection — how the evidence would unfold at trial. Indeed, the DNA
evidence was heavily contested at trial and continues to serve as the
basis for several claims on appeal.20 Notwithstanding the dissent’s

20
Moreover, A.E. did not say she had concerns about imposing the
death penalty only in those cases in which there was a “lack of DNA
evidence” (dis. opn. of Evans, J., post, at p. 19). Regardless of the basis
for A.E.’s expressed apprehension, we have previously recognized that

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

views, we remain persuaded that “any reasonable prosecutor”
(Rhoades, supra, 8 Cal.5th at p. 431) in a capital trial presumably
would want to avoid A.E. as a prospective juror when she said she
“[p]robably [could] not” vote to impose the death penalty even if she
“thought it was an appropriate case” for doing so based on the
evidence.21

a prospective juror’s reluctance to impose the death penalty due to
concerns that the person sentenced might actually be innocent is a
race-neutral reason for exercising a peremptory challenge. (See
Battle, supra, 11 Cal.5th at p. 780 [citing prospective juror’s
observation that it would be “ ‘so inhumane to execute someone for
something that they didn’t do’ ”; this comment “clearly conveyed that
she worried about being involved in a capital trial involving an
innocent defendant”]; People v. Panah (2005) 35 Cal.4th 395, 441
[prospective juror’s comment that she would need to be “ ‘absolutely
sure’ ” before she could impose the death penalty was a
nondiscriminatory reason for excusing her].)
21
The dissent contends that the identified race-neutral reason for
excusing A.E. is undermined by “the fact that seated, White jurors
shared Prospective Juror A.E.’s apprehensions about the death
penalty.” (Dis. opn. of Evans, J., post, at p. 22.) But the example cited,
involving Juror No. 125130, is unavailing. This juror told the court,
“There’s always misconceptions, you know. Lines crossed. There has
[sic] been cases where they have to come before a court and do all of
this and they’re actually innocent.” The juror provided this response
when the court asked whether the fact that defendant had been
arrested or charged with the crime is evidence of his guilt; it was a
reflection on the juror’s willingness to keep an open mind, not an
apprehension regarding imposition of a death sentence. This juror’s
views do not resemble A.E.’s expressed apprehensions over the death
penalty. Indeed, none of the seated jurors maintained the similarly
sweeping position that they probably could not vote to sentence
defendant to death even if the prosecution had proved its case beyond
a reasonable doubt. We therefore disagree with the dissent’s assertion
that A.E.’s concerns were “similar enough to those voiced by White
seated jurors” that the trial court should have “require[d] the

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PEOPLE v. HAZLETT
Opinion of the Court by Guerrero, C. J.

The fact that A.E. said she would not automatically vote in favor
of life without the possibility of parole does not alter our analysis.
“[E]ven when a prospective juror has expressed neutrality or a
favorable opinion on the death penalty, the prosecutor is not required
to take that juror’s answers ‘ “ ‘at face value’ ” ’ when ‘ “other
statements or attitudes of the juror suggest that the juror has
‘reservations or scruples’ about imposing the death penalty.” ’ ”
(Battle, supra, 11 Cal.5th at p. 779.) As the dissent acknowledges, “we
have previously held that reluctance and equivocation in imposing the
death penalty are race-neutral reasons that can justify striking a
prospective juror.” (Dis. opn. of Evans, J., post, at p. 18.) Here, A.E.’s
responses as a whole reflected a race-neutral characteristic that any
reasonable prosecutor trying the case would presumably and logically
want to avoid in a juror. (See Rhoades, supra, 8 Cal.5th at p. 431.)
Defendant counters that at the time he objected under Batson,
there was nothing to distinguish A.E.’s responses about her views
concerning the death penalty from those of Juror E.H. and Alternate
Juror E.B., each of whom he claims expressed similar concerns in their
written questionnaires about the certainty of proof required before
voting for the death penalty. (See Rhoades, supra, 8 Cal.5th at p. 432,
fn. 17 [discussing the role of comparative juror analysis in reviewing
a first-stage Batson challenge].) E.H. stated that the death penalty
“should be used only if the crime is without a doubt proven and the

prosecutor to provide reasons for striking her.” (Id. at p. 23.) To the
extent the dissent contends that the trial court did not afford
defendant the opportunity to highlight similarities between A.E.’s
answers and the answers of other prospective jurors, “If there was
additional information [defendant’s] counsel wished to adduce in
support of the Batson/Wheeler motion at trial, it was his
responsibility to say so at the time.” (People v. Shove (Aug. 13, 2026,
S161909) ___ Cal.5th ___, ___.)

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Opinion of the Court by Guerrero, C. J.

crime is disturbingly inhumane.” E.B. stated that “if you’re going to
take someone[’]s life you better be 100% certain they deserve it.”
During voir dire, however, E.H. clarified that in referring to “without
a doubt” in her questionnaire, she meant “beyond a reasonable doubt,”
and she stated without qualification that she could vote for death if
she concluded that it was the appropriate penalty. E.B., meanwhile,
consistently stated during voir dire that she had no conscientious
objections or personal beliefs that would lead her to refuse to vote for
the death penalty regardless of the evidence and she agreed that
depending on the evidence and the law, she would be “open” to voting
for either death or life without the possibility of parole. These
responses render defendant’s comparisons unpersuasive. (See Reed,
supra, 4 Cal.5th at pp. 1002–1003.)
In sum, after independently examining the record and
considering all relevant circumstances, we conclude the record does
not support an inference that the prosecutor’s peremptory challenge
of Prospective Juror A.E. was based on racial discrimination.

III. GUILT PHASE ISSUES
A. Evidence of Other Sexual Offenses
Defendant makes several challenges to the admission of other
uncharged sexual offenses pursuant to Evidence Code section 1108
and related jury instructions. Each argument is without merit.
1. Five incidents of rape against four victims
Over defendant’s objection, the trial court admitted evidence of
five other sexual assaults that defendant committed, four before and
one after Woolley’s homicide.
a. 1973: Two incidents involving I.T.
At trial, I.T. identified defendant as the person who raped her
on two occasions. I.T. testified that she knew defendant as a former

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PEOPLE v. HAZLETT
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neighbor. Her prior husband had entered into a “loose business
relationship” with defendant to put on a dance at the fairgrounds in
Lancaster, California. One day in 1973, I.T. made arrangements to
go to defendant’s house in Lancaster to pick up $50 he owed I.T. and
her former husband. When she arrived, there were four or five other
men present whom she recognized as policemen. Defendant walked
I.T. to his bedroom where she assumed the money was kept. I.T.
described defendant as “very strong.” After a brief conversation,
defendant tried to remove her clothes, and despite I.T.’s protests,
raped her by force. I.T. did not scream or shout because she believed
the other men in the house were drinking and was concerned that the
situation would “escalate into something even worse.” After the rape,
defendant said something like, “I guess you really didn’t want this,”
and then let her go. I.T. did not report the incident to police as she
felt it would just damage her marriage.
Months later, at about 3:00 a.m. one morning in May, I.T. was
sleeping at her house when defendant knocked at her door. When I.T.
asked who was at the door, defendant identified himself and asked
her for some coffee because he had been driving a long distance and
falling asleep at the wheel. I.T.’s husband was out of the country, and
her two-year-old daughter was asleep in one of the bedrooms. I.T. did
not drink or make coffee and was not thinking clearly. She told
defendant to go into the kitchen and make it while she sat in the living
room. When defendant went into the living room, he reached for I.T.
and she started resisting, telling him “no” numerous times.
Defendant wrestled I.T. to the floor, took her by the hand when she
tried to get up, and forced her into a bedroom. Defendant threw her
on the bed, removed her housecoat, and twisted her arms behind her.
Defendant raped I.T. as she struggled and dug her nails into his arm.
Defendant finally stopped, got up, and left her house. I.T. reported
the assault to the sheriff’s department.

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b. 1976: Incident involving S.R.
At trial, S.R. identified defendant as the man who raped her in
December 1976 when she was living in Lancaster. She testified that
she had car trouble after attending a holiday party one evening. S.R.
began walking down the road in search of a service station or house.
Defendant stopped and offered S.R. a ride to find a place to make a
phone call. Defendant drove to a convenience store and told S.R. not
to get out of the car, not to look at him, and to keep her head down.
Defendant went into the store, returned to his car, and then drove S.R.
to a dirt road in the desert. He threatened to kill S.R. if she did not
do what he told her. When S.R. tried to exit the car, defendant
grabbed her by the hair. Defendant slapped S.R. in the face, pulled
her hair, called her a “fucking white bitch,” and punched her with a
closed fist. Defendant forced S.R. to have sexual intercourse with him.
After the assault, S.R. “battl[ed]” with defendant when she refused to
perform oral sex and she managed to escape from the car. Defendant
caught S.R. as she tried to run and kicked her numerous times and
hit her in the face. Defendant then got in his car and drove away.
S.R. reported the assault to the sheriff’s department, identified
defendant as her assailant from a photographic lineup, and provided
details about the car defendant drove. Investigators took photographs
of the impressions defendant’s shoeprints left on S.R.’s side and back.
c. 1976: Incident involving K.S.
K.S. testified regarding a sexual assault in December 1976. She
identified defendant at trial as her assailant. K.S. testified that she
was 19 or 20 years old at the time and lived in Lancaster. K.S.
previously lived in a foster home with C.D., defendant’s wife at the
time. One day, K.S. was driving down a road and saw defendant,
whose car had broken down. She told defendant that she was on her
way to see his wife and that she would give him a ride. When they

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arrived at defendant’s home, his wife was not there. K.S. decided to
wait for defendant’s wife to arrive and sat on a sofa with defendant.
After about 10 minutes, K.S. got up to leave. Defendant walked to the
door, locked it, and told K.S. “You’re going to be fucked by a
[n]*****,”22 grabbed her by the hair and pulled her into a bedroom.
Defendant restrained K.S. by tying or holding her arms above her
head, slapped her a few times, and violently bit her breast and the
inside of her thigh. Defendant told K.S. that she would remember this
for the rest of her life and threatened that if she told anyone her dead
body would be found in the desert. Over K.S.’s protest, defendant
performed oral sex on her and raped her. K.S. reported the crimes to
the sheriff’s department but did not identify defendant as the
perpetrator because she was afraid for her life. Within a few weeks,
after K.S. read about S.R.’s rape in a newspaper, K.S. contacted the
sheriff’s department and identified defendant as the individual who
raped her.
d. 1982: Incident involving L.B.
L.B. testified that she lived in San Mateo in July 1982. One
evening she went to a local nightclub to dance and saw defendant,
whom she knew as “Larry.” L.B. went to the club often and previously
had danced with defendant. At defendant’s suggestion, L.B. left the
club and went to a diner to meet defendant. They drove separately,
and after each arrived at the diner, defendant told L.B. he wanted to
talk with her. She got in his van, and within a short time, defendant
made a statement about sex, which surprised L.B. because she and
defendant had only danced together and made small talk at the club.
L.B. screamed as defendant pulled and “jerked” her to the back of the
van. He held her arms down and put his hand over her mouth to stop

22
Epithet redacted.

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PEOPLE v. HAZLETT
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her from screaming. Over L.B.’s protests, defendant had sexual
intercourse with L.B. and performed oral sex on her by force. After
defendant stopped, she sat in the front seat and talked with defendant
for a period of time so she could get out of the van alive. She believed
the sexual assault lasted a couple of hours. L.B. reported the sexual
assault to police. At trial, L.B. identified defendant as the individual
who sexually assaulted her.
2. Instructions to the jury
At the conclusion of the guilt phase, the trial court instructed
the jury with CALJIC No. 2.50.01 (2002 rev.), which provided: “If you
find that the defendant committed a prior sexual offense, you may,
but are not required to, infer that the defendant had a disposition to
commit sexual offenses. If you find that the defendant had this
disposition, you may, but are not required to, infer that he was likely
to commit and did commit the crimes for which he is accused. [¶]
However, if you find by a preponderance of the evidence that the
defendant committed prior sexual offenses, that is not sufficient by
itself to prove beyond a reasonable doubt that he committed the
charged crimes. If you determine an inference properly can be drawn
from this evidence, this inference is simply one item . . . for you to
consider, along with all of the other evidence, in determining whether
the defendant has been proved guilty beyond a reasonable doubt of
the charged crime. Unless you are otherwise instructed, you must not
consider this evidence for any other purpose.”
In addition, the trial court instructed the jury with CALJIC No.
2.50.1, as follows: “Within the meaning of [CALJIC No. 2.50.01], the
prosecution has the burden of proving by a preponderance of the
evidence that the defendant committed sexual offenses other than
that for which he is on trial. [¶] You must not consider this evidence
for any purpose unless you find by a preponderance of the evidence

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that the defendant committed the other sexual offenses. [¶] If you
find other sexual offenses were committed by a preponderance of the
evidence, you are nevertheless cautioned and reminded that before a
defendant can be found guilty of any crime charged or any included
crime in this trial, the evidence as a whole must persuade you beyond
a reasonable doubt that the defendant’s guilty of that crime.”
3. Constitutionality of Evidence Code section 1108 and
related jury instructions
Defendant contends that the admission of evidence of prior
sexual offenses under Evidence Code section 1108 and the related jury
instruction (CALJIC No. 2.50.01 (2002 rev.)) improperly allowed the
jury to find that he was predisposed to commit sexual offenses based
on a preponderance of the evidence and then use that finding to infer
that he was guilty of the offenses in this case, in violation of the federal
Constitution’s due process guarantee. Defendant specifically
contends that CALJIC No. 2.50.01 should require evidence that the
charged and uncharged sexual offenses share distinctive common
marks as required for admission of evidence for similar purposes
under Evidence Code section 1101. We have previously rejected these
arguments. (See People v. Falsetta (1999) 21 Cal.4th 903, 907–908,
922 (Falsetta) [upholding constitutionality of Evid. Code, § 1108];
accord, People v. Dworak (2021) 11 Cal.5th 881, 900 (Dworak); see also
People v. Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford) [the 1999
version of CALJIC No. 2.50.01 correctly stated the law; the 2002
revision to CALJIC No. 2.50.01 adding the instruction’s penultimate
sentence is an “improvement”]; id. at p. 1014 [the 1999 revision to
CALJIC No. 2.50.01 “adequately confines the weight and significance
of uncharged offenses within constitutional bounds by warning . . .
that the uncharged offense is ‘not sufficient by itself to prove beyond
a reasonable doubt that [the defendant] committed the charged

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crime’ ”].) Defendant concedes as much and offers no persuasive
reason to reconsider our holdings.23
Relatedly, defendant makes a facial challenge to CALJIC No.
2.50.1 on the ground that it might confuse the jury when considered
with the instruction on circumstantial evidence (CALJIC No. 2.01),
which instructs the jury that inferences essential to establish guilt
must be proved beyond a reasonable doubt. 24 Essentially, defendant
asserts that because the jurors were permitted under CALJIC No.
2.50.01 to infer based on a preponderance of evidence that a defendant
committed one (or more) of the other sexual offenses, they must have

23
Relatedly, we reject defendant’s argument that we must modify
the standard of proof to comport with due process. (See, e.g., Falsetta,
supra, 21 Cal.4th at pp. 919, 924; People v. Fitch (1997)
55 Cal.App.4th 172, 184; cf. People v. Carpenter (1997) 15 Cal.4th 312,
382 (Carpenter) [with other-crimes evidence, “The preponderance of
the evidence standard adequately protects defendants”].)
24
The trial court instructed the jury with CALJIC No. 2.01, as
follows: “[A] finding of guilt as to any crime may not be based on
circumstantial evidence unless approved circumstances are not only,
one, consistent with the theory that the defendant is guilty of the
crime, but, two, cannot be reconciled with any other rational
conclusion. [¶] Further, each fact which is essential to complete a set
of circumstances necessary to establish the defendant’s guilt must be
proved beyond a reasonable doubt. In other words, before an inference
essential to establish guilt may be found to have been proved beyond
a reasonable doubt, each fact or circumstance on which the inference
necessarily rests must be proved beyond a reasonable doubt. [¶] Also,
if the circumstantial evidence as to any particular count permits two
reasonable interpretations, one of which points to the defendant’s
guilt and the other to his innocence, you must adopt that
interpretation that points to the defendant’s innocence and reject that
interpretation that points to his guilt. [¶] If, on the other hand, one
interpretation of the evidence appears to you to be reasonable and the
other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.”

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been confused in applying CALJIC No. 2.01, which reminded the
jurors that “before an inference essential to establish guilt may be
found to have been proved beyond a reasonable doubt, each fact or
circumstance on which the inference necessarily rests must be proved
beyond a reasonable doubt.” We disagree.
When presented with a claim that an instruction is ambiguous,
“we review the challenged language to inquire whether there is a
reasonable likelihood that the instruction caused the jury to
misconstrue or misapply the law.” (People v. Thornton (2007)
41 Cal.4th 391, 436.) We conclude there is no such reasonable
likelihood here.
Defendant conflates the concepts of an inference that can be
drawn from evidence of other sexual offenses and evidence as a whole
that establishes a defendant’s guilt beyond a reasonable doubt.
CALJIC No. 2.50.01 informed the jury that it could “infer” from
evidence of defendant’s other sexual offenses that he committed the
charged crime. The instruction did not state such an inference itself
constituted proof beyond a reasonable doubt. The jury was also
instructed under CALJIC No. 2.00 that “[a]n inference is a deduction
of fact that may logically and reasonably be drawn from another fact
or group of facts established by the evidence.” “But a logical deduction
is not the same as proof beyond a reasonable doubt. No reasonable
jury would assume that this inference, i.e., this logical deduction,
substituted for proof beyond a reasonable doubt.” (People v. Loy (2011)
52 Cal.4th 46, 75 (Loy).)
Defendant asks us to reconsider our decision in Loy, supra,
52 Cal.4th at page 75, because assertedly, the distinction we made in
that case constitutes a “source of confusion” regarding the jury’s
application of CALJIC Nos. 2.50.01 and 2.01. Defendant asserts
jurors would have difficulty distinguishing between the facts

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introduced to prove by a preponderance of the evidence that a
defendant has a certain disposition to commit a certain type of crime,
allowing for an inference that the defendant did commit such a crime
(Evid. Code, § 1108) and the facts that must be established beyond a
reasonable doubt to prove a defendant’s guilt of the charged offenses.
We decline to reconsider Loy. As given here, CALJIC No.
2.50.01 informed the jurors that if they determined an inference
properly could be drawn from evidence of the other sexual offenses,
that inference would be “simply one item for you to consider, along
with all of the other evidence, in determining whether the defendant
has been proved guilty beyond a reasonable doubt of the charged
crime.” In turn, CALJIC No. 2.50.1 reminded the jury that a
conviction for any of the charged crimes must be based on proof beyond
a reasonable doubt notwithstanding any finding by the jury that
defendant committed other sexual offenses based on proof that
satisfied the preponderance of the evidence standard. Nothing in
CALJIC No. 2.50.1 suggested that the jury could base a guilty verdict
solely on an inference drawn from a finding that defendant committed
other sexual offenses. The instruction, considered along with CALJIC
No. 2.01, emphasized the jury’s duty to base a finding of guilt on no
less than proof beyond a reasonable doubt. We presume jurors
understood and followed the instructions given. (People v. Ramirez
(2021) 10 Cal.5th 983, 1008 (Ramirez).) Accordingly, we conclude
there is no reasonable likelihood that CALJIC No. 2.50.1 confused the
jury.25

25
Defendant contends the prosecutor asserted that the evidence of
other sexual offenses admitted under Evidence Code section 1108 was
sufficient to prove his guilt of the charged offenses, which otherwise
required proof beyond a reasonable doubt. The prosecutor stated:
“Now, let us exercise our logic for a moment. We know that a serial

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We likewise reject defendant’s argument that any confusion
assertedly arising from CALJIC No. 2.50.1 extended to the penalty
phase. He notes that “[t]he same facts that allowed jurors to conclude
that [he] committed the sexual assault offenses at guilt under a
preponderance standard had to be proven beyond a reasonable doubt
during the penalty phase when considered under Penal Code section
190.3, factor (b).” This instruction, however, “is not the first time
jurors have been asked to apply a different standard of proof to a
predicate fact or finding in a criminal trial. [Citations.] As we do in
each of those circumstances, we will presume here that jurors can
grasp their duty — as stated in the instructions — to apply the
preponderance-of-the-evidence standard to the preliminary fact
identified in the instruction and to apply the reasonable-doubt
standard for all other determinations.” (Reliford, supra, 29 Cal.4th at
p. 1016.)

rapist lived next door to a woman who was murdered in the course of
a sexual assault. Logically, logically our reason tells us we need to
know a little more. [¶] No coincidence could be that fantastic that a
serial rapist would live next door to a woman who was murdered
during the course of a rape or attempted rape, but yet somebody else
could be responsible. [¶] We really need to know nothing more. But,
of course, there is a lot more. But I submit to you if it went no further,
the evidence against Larry Hazlett is overwhelming.” The prosecutor
then said, “But what else do we know?” and described the DNA
evidence that had been admitted at trial.
We do not perceive a reasonable likelihood that this argument
caused the jury to assign undue weight to the evidence regarding the
prior sexual assaults. The jury was admonished that if there was any
conflicting statement by counsel made during argument concerning
the law, the jury was to follow the court’s instructions. The court also
properly instructed the jury concerning the prosecution’s burden of
proof regarding the other sexual offenses and the charges. As noted
in the main text, we presume the jurors followed those instructions.
(Ramirez, supra, 10 Cal.5th at p. 1008.)

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Finally, defendant objects to CALJIC No. 2.50.01 as
argumentative in violation of his due process rights because even
assuming that defendant’s disposition to commit a sexual offense was
properly before the jurors, “the instruction singled out this evidence
and invited the jurors to draw conclusions that [he] was guilty of the
charged crime.” In support, but without citation to the appellate
record, defendant asserts the instruction “invited the jurors to make
factual inferences that [defendant] entered the victim’s apartment
with the intent to rape and acted in accordance with that intent to
commit the crime charged” and thereby “present[ed] the prosecutor’s
theory.” The claim lacks merit.
CALJIC No. 2.50.01 is a limiting instruction that informs the
jury concerning its permissible application of evidence of other sexual
offenses and admonishes the jury that “[u]nless you are otherwise
instructed, you must not consider this evidence for any other purpose.”
The instruction is written in neutral, nonspecific terms; it does not
specify the evidence of other sexual offenses or identify the charges for
which a defendant is on trial. In Reliford, supra, 29 Cal.4th at page
1014, we observed that “[u]nder CALJIC No. 2.50.01, evidence of the
uncharged offense may support the inference that defendant had a
disposition to commit the charged offense which, in turn, may support
the inference that he was likely to commit and did commit the charged
offense.” We noted that the instruction is not compulsory and “merely
reiterates that the jury may, but is not required to, draw the
inferences described.” (Ibid.) In this respect, the instruction properly
and logically informs a jury how to consider any evidence of other
sexual offenses that satisfies the preponderance of evidence standard
in the context of the overall charge to the jury — that is, as stated
succinctly in CALJIC No. 2.50.01, “determining whether the
defendant has been proved guilty beyond a reasonable doubt of the
charged crime.” Contrary to defendant’s assertions, the instruction

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neither expressly nor impliedly directs or invites the jury to draw from
evidence of other sexual offenses specific inferences that support the
prosecution’s theory of the case, e.g., that defendant entered Woolley’s
apartment with intent to rape. (See People v. Daniels (1991) 52 Cal.3d
815, 870 [instructions that are neutrally phrased but “ask the jury to
consider the impact of specific evidence” may be rejected as
argumentative].) We therefore conclude that defendant’s challenge to
the instruction as argumentative lacks merit.
4. Admission of evidence of other sexual offenses
Defendant contends the trial court abused its discretion in
admitting evidence of the five uncharged sexual offenses. Defendant
specifically argues that the other sexual offenses were not sufficiently
probative of his guilt concerning Woolley’s murder and that their
prejudicial effect substantially outweighed any probative value they
had. We conclude the trial court did not abuse its discretion in
admitting evidence of the uncharged sexual offenses under Evidence
Code section 1108.
a. The trial court’s ruling
The trial court conducted a hearing under Evidence Code section
402 to determine the admissibility of the evidence of five uncharged
sexual offenses involving defendant. Over defense objection, the trial
court admitted evidence of the sexual assaults involving I.T. (two
incidents), S.R., K.S., and L.B., ruling the evidence was admissible
pursuant to Evidence Code section 1108. The trial court explained:
“In this particular case, all the incidents occurred between ’73
and ’82, within a nine-year period. They’re remote today, but so is
the . . . instant offense. They’re all within the same time period. So I
could not in this case find remoteness as to the acts. If this had
happened last year, something 30 years ago might be remote, but
these all happened in the same time period.

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“I also note that each of the victims, these four ladies, was
Caucasian, as is Ms. Woolley.
“I also note that — I forgot to ask [L.B.] her age, and I don’t
think it’s in the record, but I will — it does appear to me that since
her incident occurred 22 years ago she was in her 20s when it
happened. Now, I could be wrong. If I am, please — she looks like
she’s in her 40s to me. The other victims were 20 — let’s see. The
lady from this morning was 33, so she was older, but the other ones
were, I believe, 20 and 22. [¶] . . . [¶]
“Three of them were acquainted with the defendant. It’s my
understanding that Ms. Woolley lived in the same apartment complex
with the defendant, so she’s acquainted with him. In fact, I know I
read the transcript of the confession — the admissions that we already
talked about, but I think there is (sic) even some statements in there
that he was acquainted with her or knew who she was. [¶] . . . [¶]
“In this particular case, um, I don’t think the prejudice
outweighs the probative value. I think clearly it’s relevant. It will not
take an undue amount of time. We spent about an hour and
40 minutes. I understand the [d]efense will — I don’t think the People
will take much longer than they did during the [Evidence Code
section] 402 [hearing], but even if the [d]efense took four times the
amount of time they took we’re only still talking about four or five
hours, which will be . . . less than, from what I gather, 20 or 15 percent
of the whole trial. So it will not take an undue amount of time.
“The [jurors are] simply not going to be confused or misled in
this case. They will see four different witnesses plus the deceased in
this case. They’ll see them separately. They’re not going to be
confused.
“[The prior incidents are] all relevant under [Evidence Code
section] 1108. . . . I think, given the overall circumstances, it would

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be improper to exclude them as irrelevant, so they will be admitted
into evidence.”
b. Legal principles
The applicable legal principles are well established.
“ ‘[E]vidence of a person’s character’ is generally inadmissible ‘when
offered to prove his or her conduct on a specified occasion.’ (Evid.
Code, § 1101, subd. (a).) That general rule does not ‘prohibit[] the
admission of evidence that a person committed a crime . . . or other
act’ to prove something other than a person’s ‘disposition to commit
such an act.’ (Id., § 1101, subd. (b).)” (People v. Baker (2021)
10 Cal.5th 1044, 1088 (Baker).) “Evidence Code section 1108 provides
an exception to the general rule [articulated in Evidence Code section
1101] and permits evidence that a defendant accused of a sexual
offense has committed another sexual offense, potentially showing a
propensity to do so. (See id., § 1108, subd. (a).)” (Id. at p. 1089.) This
exception requires that the evidence is not otherwise inadmissible
pursuant to Evidence Code section 352. (Baker, at p. 1089.)
Evidence Code section 352 “sets out the general rule that ‘[t]he
court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading
the jury.’ [Citation.] It follows that if evidence satisfies the
requirements of [Evidence Code] section 1108, including that it is not
inadmissible under [Evidence Code] section 352, then the admission
of that evidence does not violate [Evidence Code] section 1101.”
(People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823 (Daveggio
and Michaud).)
“To determine whether [Evidence Code] section 1108 evidence is
admissible, trial courts must engage in a ‘careful weighing process’

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under [Evidence Code] section 352. [Citation.] ‘Rather than admit or
exclude every sex offense a defendant commits, trial judges must
consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the
likelihood of confusing, misleading, or distracting the jurors from their
main inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the defendant in
defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting
some but not all of the defendant’s other sex offenses, or excluding
irrelevant though inflammatory details surrounding the offense.’ ”
(Daveggio and Michaud, supra, 4 Cal.5th at pp. 823–824.)
“ ‘Evidence is not prejudicial, as that term is used in a[n
Evidence Code] section 352 context, merely because it undermines the
opponent’s position or shores up that of the proponent. The ability to
do so is what makes evidence relevant. . . . The prejudice that
[Evidence Code] section 352 “ ‘is designed to avoid is not the prejudice
or damage to a defense that naturally flows from relevant, highly
probative evidence.’ [Citations.] ‘Rather, the statute uses the word in
its etymological sense of “prejudging” a person or cause on the basis
of extraneous factors.’ ” ’ ” (People v. Doolin (2009) 45 Cal.4th 390,
438–439; accord, Baker, supra, 10 Cal.5th at p. 1089; Daveggio and
Michaud, supra, 4 Cal.5th at p. 824.) “In the context of Evidence Code
section[] 1108 . . . , a defendant’s propensity to commit sexual offenses
or domestic violence is not an extraneous factor; it is relevant to the
guilt of the accused — and evidence tending to show that propensity
has probative value.” (Baker, at p. 1089.) “Like any ruling under
[Evidence Code] section 352, the trial court’s ruling admitting
evidence under [Evidence Code] section 1108 is subject to review for
abuse of discretion.” (People v. Story (2009) 45 Cal.4th 1282, 1295
(Story).)

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Defendant contends the evidence of the other sexual offenses
was inadmissible due to insufficient similarities to the charged crime;
potential confusion of the jury; the burden its admission imposed on
the defense; the likelihood of undue prejudice; and the availability of
less prejudicial alternatives. We address each contention below and
conclude the trial court did not abuse its discretion in admitting
evidence of the other sexual offenses.26
c. Similarity of the evidence
Defendant contends the evidence of other rapes committed
against I.T., K.S., S.R., and L.B. did not show a distinctive type of
crime that supported the inference that defendant raped (or
attempted to rape) and killed Woolley in this case. Specifically,
defendant argues that Woolley was a stranger to him whereas he
allegedly had a prior relationship with three of the four rape victims
and had talked with a fourth victim, S.R., for an extended period of
time in his car before he raped her. He further asserts the
circumstances of other sexual assaults did not involve a pattern of
violence that allowed for an inference that he broke into a stranger’s
(Woolley’s) home, hid in the bathtub, and raped and killed her by
ligature strangulation. Finally, defendant asserts the trial court
improperly considered that the victims were all White when
determining similarities among the offenses.
We find no error in the admission of this evidence. Here, as we
have said before, “defendant’s argument ignores the distinction
between admissibility under Evidence Code section 1101[,
subdivision] (b), which requires a sufficient degree of similarity
between charged and uncharged offenses, and admissibility under

26
Though addressed individually, defendant’s arguments do not
show error even when viewed in the aggregate.

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Evidence Code section 1108, which does not. As we have observed,
although lack of similarity is relevant to the court’s decision whether
to exclude Evidence Code section 1108 propensity evidence as more
prejudicial than probative, that factor is not dispositive.” (People v.
Merriman (2014) 60 Cal.4th 1, 41–42.) “The proper focus of the trial
court’s inquiry is on the type of sex offense at issue (here, forcible
rape), and differences in the manner in which the acts were committed
or in the characteristics of the victims, while potentially relevant, are
not dispositive.” (Dworak, supra, 11 Cal.5th at pp. 901–902.)
Further, we explained in Falsetta that “the probative value of ‘other
crimes’ evidence is increased by the relative similarity between the
charged and uncharged offenses, the close proximity in time of the
offenses, and the independent sources of evidence (the victims) in each
offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
Here, the five other sexual offenses “were not entirely
dissimilar.” (Loy, supra, 52 Cal.4th at p. 63.) Evidence of the five
forcible rapes of four women tended to show that using violence,
defendant previously sexually assaulted women who were in their
twenties or thirties and were acquainted with or had previously talked
briefly with him. The evidence was probative on the question of
defendant’s guilt for the forcible rape or attempted rape of 20-year-old
Woolley, who was sexually assaulted and violently strangled to death
within the nine-year period that the other victims were sexually
assaulted. Moreover, contrary to defendant’s assertions, Woolley was
not a complete stranger to him. Although there was no evidence
defendant and Woolley had ever met, defendant lived in the same
apartment complex as Woolley, in which the back window of his
apartment faced her apartment. Defendant also told investigators
that he had observed three people moving Woolley’s belongings into
her apartment, and that although he did not really know the victim,
he recalled her possibly being Caucasian or Hispanic, and that she

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may have had a fiancé. There was no abuse of discretion on this
ground.
Furthermore, the court’s consideration of the victims’ race when
determining similarities does not show an abuse of discretion.
Defendant made racial epithets to two of the victims that highlighted
their race, as well as his own. Defense counsel even acknowledged
during closing argument, when arguing that the offenses did not have
“an intent to kill” like Woolley’s murder, that the “purpose” of the
Evidence Code section 1108 offenses “might have been, you know, to
dominate and to degrade and the racial component and all of that.”
Defendant also argues that the court should have excluded the
1973 and 1982 assaults because of their alleged remoteness in time
from the 1978 crime. But as the trial court reasoned, the 1973 and
1982 offenses were not particularly remote from the 1978 charged
murder. (See, e.g., People v. Robertson (2012) 208 Cal.App.4th 965,
992 [discussing other-act offenses found not to be too remote]; People
v. Branch (2001) 91 Cal.App.4th 274, 284 [“No specific time limits
have been established for determining when an uncharged offense is
so remote as to be inadmissible”].)
d. Potential for confusion of the jury
Defendant argues that evidence of other sexual offenses was
inadmissible because it could have confused the jurors and distracted
them in determining the question of guilt for the charged murder.
Defendant asserts the jury could have been confused by the
presentation of evidence of other sexual offenses because defendant
had not been apprehended and punished for the prior criminal
conduct, and the jury’s deliberations regarding the charges here could
have been affected by a sense that defendant had wrongly escaped
accountability for these past crimes. The claim is without merit.

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“The Legislature has determined that this evidence [of other
sexual offenses] is ‘ “particularly probative” ’ in sex cases.” (Loy,
supra, 52 Cal.4th at p. 61.) In this case, the jury had to determine
whether defendant killed Woolley during the commission of a rape or
attempted rape. “Rather than distracting the jury, this evidence
assisted it in these inquiries. ‘The central issue in these cases
commonly involves not just whether the conduct took place as the
[prosecutor alleged], but whether the defendant was the one who
perpetrated it. [Evidence Code s]ection 1108 assists the jury’s task by
allowing the accused’s sexual misconduct history to be considered for
whatever light it might shed on these issues . . . .’ [Citation.]
Here, . . . the victim . . . was unable to describe the conduct that [led]
to her death. But, if anything, this circumstance makes the evidence
all the more necessary. ‘The necessity for admitting this particularly
probative evidence that exists when the alleged victim’s credibility
might be questioned can be no greater than the necessity that exists
when the victim was killed and thus cannot even tell her story.’ ” (Id.
at pp. 61–62.)
As previously noted, the jury was instructed regarding how to
properly consider evidence admitted pursuant to Evidence Code
section 1108. Again, we presume jurors understood and followed
those instructions. (Ramirez, supra, 10 Cal.5th at p. 1008.) In
speculating that the jury went astray, defendant offers no citation to
the record that demonstrates the jurors in this case were confused by
the evidence of other sexual offenses or considered the evidence for an
improper purpose. In addition, in carefully considering admission of
the proffered evidence of other sexual offenses under Evidence Code
section 352, the trial court considered, among other factors, the
likelihood of confusing or misleading the jurors. It concluded there
was no such potential in admitting the evidence because the evidence
of the five incidents of rape would be presented separately through the

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testimony of each victim, with I.T. recounting two incidents of rape.
Here again, defendant has shown no abuse of discretion.
e. Burden to the defense
As stated, the uncharged sexual offenses occurred in 1973 (I.T.),
1976 (S.R. and K.S.), and 1982 (L.B.). Defendant contends the
allegations posed an undue burden on the defense given their age, the
late discovery about them, and their previously untested nature.
In support of his argument, defendant emphasizes that he
received police reports concerning the 1976 sexual assaults only
shortly before his trial. About three weeks before trial, the prosecutor
informed the court that reports regarding the 1976 incidents had been
“destroyed pursuant to statute and routine destruction” but that he
had provided the defense with newer reports based on recent
interviews with the victims, which was all he had. On the day of the
Evidence Code section 402 hearing, however, the prosecutor explained
that his investigator located copies of the 1976 police reports from the
Los Angeles County District Attorney’s Office, and that he had
forwarded that discovery to defense counsel. Defense counsel argued
that “doesn’t leave much time for an investigation,” especially in light
of a previously unknown note from someone indicating that S.R. was
too drunk to identify her assailant. The court offered defense counsel
“a couple more days to try to track that note down,” acknowledging
the potential importance of what it said. Counsel did not ask for
additional time from the court.
Defendant contends that evidence of the other offenses should
have been excluded because the delayed discovery made defending
against the allegations unduly burdensome. He asserts the defense
needed time to investigate S.R.’s potential intoxication on the night of
her rape; how that may have impaired her identification and, later,
her memory; and defendant’s alibi on the night she was attacked. He

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further asserts the defense needed time to investigate his social
relationship with K.S. Defendant also argues that the incident report
regarding I.T.’s rape did not contain “what she said to the officer at
that time.” Defendant contends that without time to conduct a
thorough investigation, he was unable to conduct effective cross-
examination of these witnesses.
Regarding the offense against I.T. from 1973, defendant does not
establish why he did not have enough time to conduct a thorough
investigation. Defense counsel conceded the prosecutor provided
sufficient notice of the five rape incidents under Evidence Code section
1108, subdivision (b). Moreover, the original reports for the 1973 and
1982 offenses were attached to the complaint and arrest warrant filed
in December 2002, nearly a year and a half before trial began. The
defense therefore had many months to interview I.T., including about
anything she may have said to the police the night of the incident.
It is true that defendant did not know, until the prosecution
located and turned over the original report regarding the S.R.
incident, that someone had made a notation suggesting she was too
intoxicated to identify her assailant. The trial court gave the defense
extra time to investigate this issue, however. Defense counsel did not
request additional time, and defendant does not now explain why two
days was insufficient to alleviate any alleged burden to the defense.
Additionally, in response to the late discovery, defense counsel
requested and received permission to conduct cross-examination “that
would normally not be called for in a[n Evidence Code section] 402
[hearing].” At that hearing, counsel cross-examined S.R. about her
rape and identification of defendant as the perpetrator, an
examination that comprises approximately three to four pages of the
reporter’s transcript on appeal. At trial, on cross-examination,
counsel asked S.R. only whether “everything [she’d] talked about
today, that all happened back in 1976; is that correct?”
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Regarding the other three rape victims, counsel conducted
substantial cross-examination of each at the Evidence Code section
402 hearing, at trial, or both. As defendant concedes, each victim gave
substantially similar testimony at the Evidence Code section 402
hearing and at trial.
In short, defendant fails to explain how he was unfairly
burdened by the late discovery of the original reports or the
remoteness of the offenses, or how he was subsequently prevented
from effectively cross-examining any of the rape victims. Accordingly,
we conclude defendant has not established an abuse of discretion in
failing to exclude the evidence on this ground.
f. Undue prejudice
Defendant contends the evidence of the uncharged sexual
offenses was substantially more prejudicial than probative and thus
should have been excluded. He asserts that the probative value of the
five other rapes was minimal and that the admission of this evidence
“likely was used far too expansively” in that the prosecutor was
allowed to portray defendant as a serial rapist who was likely to have
committed any sexual crime. This, defendant insists, permitted jurors
to put aside any doubts about the prosecution’s evidence and conclude
that he raped or attempted to rape Woolley in this case. He further
asserts the trial court failed to consider or appropriately weigh the
effects of how the allegations of an African-American man raping a
White woman “could inflame the jurors’ emotions and prejudice their
assessment of culpability,” leading to heightened prejudice.
As discussed above, the jury was properly instructed regarding
how it could consider the evidence of other sexual offenses and
admonished that propensity evidence “by itself” is insufficient for
conviction (CALJIC No. 2.50.01). Once again, we presume jurors
understood and followed these instructions. (People v. Chism (2014)

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58 Cal.4th 1266, 1299 (Chism).) In addition, although the underlying
facts of five incidents of forcible rapes against four women were
disturbing, this evidence was not unduly prejudicial in the context of
this case, and the trial court found that the other sexual offense
evidence was “simply not going to be confus[ing],” in part, because four
witnesses would testify separately about the five sexual assaults (with
I.T. recounting two incidents). (See, e.g., Baker, supra, 10 Cal.5th at
pp. 1090–1100 [admission of defendant’s past acts of sexual assault
and domestic violence not unduly prejudicial in capital murder trial];
People v. Jones (2012) 54 Cal.4th 1, 51 [finding no error in the
admission of defendant’s prior commission of forcible oral copulation
and assault with the intent to commit rape because, “[a]lthough
serious crimes, they certainly were not more serious or inflammatory
than the charge that defendant raped, sodomized, paralyzed, viciously
beat, and strangled [the victim] to death before setting her house on
fire”].) In all, given the significant probative value of the evidence of
the five other rapes, the trial court did not abuse its discretion in
finding that any potential for prejudice did not call for its exclusion.
(See Loy, supra, 52 Cal.4th at p. 62.)
Insofar as defendant contends the trial court failed to consider
or weigh what he characterizes as inflammatory aspects of the other-
acts evidence, the record does not support this contention. In
explaining its ruling, the trial court stated, “In this particular case,
um, I don’t think the prejudice outweighs the probative value.” This
statement does not, as defendant asserts, show the court failed to
consider the racially charged nature of these offenses. A trial court
“need not expressly weigh prejudice against probative value or even
expressly state that it has done so, if the record as a whole shows the
court was aware of and performed its balancing functions under
Evidence Code section 352.” (People v. Taylor (2001) 26 Cal.4th 1155,
1169.) It follows that a trial court that does explain it has weighed

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the prejudicial and probative value of evidence need not also state all
the specific factors it took into consideration in performing this
weighing. The record supports a finding that the court was well aware
of its responsibilities and considered all relevant factors in making its
decision.27
g. Availability of less prejudicial alternatives
Defendant contends that as a less prejudicial alternative to
introduction of evidence of all five sexual assaults, the trial court
should have excluded evidence of the two rapes of I.T. in 1973 and the
rape of L.B. in 1982 because charges were never brought based on
those assaults, excluded the two 1976 rapes because of the late
discovery of the police reports regarding these incidents, or both. At
a minimum, defendant argues, the court should have excluded
inflammatory language that had been used in connection with two of
the assaults.
Regarding the rapes from 1973 and 1982, those three uncharged
sexual assaults bore more similarity with acquaintance rape than
with an unlawful entry and violent offense against a stranger. The
trial court carefully considered this factor at the hearing under
Evidence Code section 402 and found the evidence of each other sexual
assault incident to be relevant propensity evidence within the
meaning of Evidence Code section 1108. It thus determined that given
the overall circumstances of this case, exclusion of any of this evidence
would not be appropriate and that evidence of each of the other sexual
offenses was relevant and admissible under Evidence Code section
1108. The fact that these offenses went unprosecuted also does not

27
The trial court relied on Falsetta, supra, 21 Cal.4th 903 in its
analysis, and expressly stated Falsetta’s requirement to consider the
“likely prejudicial impact [of the evidence] on the jurors” and
“inflammatory details surrounding the offense[s].”

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support defendant’s claim that the evidence was inadmissible in light
of the different standards that apply to the admissibility and use of
this evidence as a component of the proof adduced against a defendant
on the one hand, and the People’s ultimate burden to convict a
defendant by a standard of proof beyond a reasonable doubt on the
other. (People v. Cottone (2013) 57 Cal.4th 269, 287–288.) Regardless
of whether a district attorney chose not to prosecute, what matters is
that sufficient evidence of defendant’s responsibility for the rapes was
presented to the jury under Evidence Code section 1108. And, as
previously discussed, the belated production of police reports
notwithstanding, the trial court did not abuse its discretion when it
admitted evidence of the 1976 rapes.
Defendant additionally argues that the trial court should have
excluded evidence of his statement to S.R. calling her “a fucking white
bitch” and his statement to K.S., “You’re going to be fucked by a
[n]*****.”28
As to these statements, defendant argues, first, that the court
should have excluded them because the victims’ testimony was
unreliable, noting that S.R. was possibly intoxicated at the time of her
assault and K.S. admitted that she lied about not knowing the identity
of her assailant in her initial report to the police. But to the extent
the victims’ credibility was at issue, this was a matter for the jury to
decide. (See People v. Maciel (2013) 57 Cal.4th 482, 519 [“ ‘ “Conflicts
and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of

28
Insofar as defendant argues that he had insufficient time to
adequately investigate these statements, his argument fails for the
same reasons we reject his broader claim of an undue burden
attributable to when the defense received discovery from the
prosecution. (See ante, part III.A.4.e.)

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the trial judge or jury to determine the credibility of a witness and the
truth or falsity of the facts upon which a determination depends” ’ ”].)
Defendant also contends the trial court should have excluded
the statements as unduly prejudicial. A trial court “in its discretion
may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.) “ ‘The “prejudice” which
[Evidence Code] section 352 seeks to avoid is that which “ ‘ “uniquely
tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.” ’ ” ’ ” (People
v. Chhoun (2021) 11 Cal.5th 1, 29.) Defendant’s own comments do not
rise to the level of invoking the jury’s bias against him. (See People v.
Quartermain (1997) 16 Cal.4th 600, 628 [“The unfortunate reality is
that odious, racist language continues to be used by some persons at
all levels of our society. While offensive, the use of such language by
a defendant is regrettably not so unusual as to inevitably bias the jury
against the defendant”].) Further, the prosecutor did not dwell on
either comment in closing argument, mentioning each statement only
once. Additionally, defendant’s comments provided context for the
rapes. As testified to, these statements underscored the
nonconsensual nature of these incidents and provided additional
recalled details the jury could have regarded as significant in
determining whether to credit the witnesses’ accounts. The trial court
did not abuse its broad discretion in admitting these statements.29

29
Defendant’s related challenge to these statements as having
been admitted in violation of the California Racial Justice Act of 2020
(Pen. Code, § 745) is discussed later in this opinion.

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5. Challenge to CALJIC No. 2.50.01
Defendant contends CALJIC No. 2.50.01, as applied to the facts
of this case, violated his due process rights because it allowed the jury
to make the impermissibly broad and assertedly irrational inferences
that (1) he had a disposition to commit rape; and (2) based on this
disposition, he was likely to have committed, and did commit, the
crimes in this case. He asserts there was insufficient evidence to
support either inference. We disagree.
The United States Supreme Court’s decision in Ulster County
Court v. Allen (1979) 442 U.S. 140, explained the evidentiary value of
permissive inferences and the standard to apply in assessing their
validity under the due process clause of the United States
Constitution: “The most common evidentiary device is the entirely
permissive inference or presumption, which allows — but does not
require — the trier of fact to infer the elemental fact from proof by the
prosecutor of the basic one and which places no burden of any kind on
the defendant. [Citation.] In that situation the basic fact may
constitute prima facie evidence of the elemental fact. [Citation.]
When reviewing this type of device, the Court has required the party
challenging it to demonstrate its invalidity as applied to him.” (Allen,
at p. 157; id. at p. 163 [the validity of permissive statutory
presumptions should be based on “an evaluation of the presumption
as applied to the record before the Court”].) “Because [a] permissive
presumption leaves the trier of fact free to credit or reject the inference
and does not shift the burden of proof, it affects the application of the
‘beyond a reasonable doubt’ standard only if, under the facts of the
case, there is no rational way the trier could make the connection
permitted by the inference.” (Id. at p. 157.) “[I]n criminal cases, the
ultimate test of any [evidentiary] device’s constitutional validity in a
given case remains constant: the device must not undermine the
factfinder’s responsibility at trial, based on evidence adduced by the

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State, to find the ultimate facts beyond a reasonable doubt.” (Id. at
p. 156.) We conclude the permissive inferences permitted under
CALJIC No. 2.50.01 are rational and did not undermine the jury’s
ultimate factfinding duty in this case.
Here, if the jury found true by a preponderance of the evidence
that I.T., S.R., K.S., or L.B. had been raped by defendant, it reasonably
could infer that defendant had a disposition to commit rape. (Reliford,
supra, 29 Cal.4th at p. 1013 [when evidence is admitted under Evid.
Code, § 1108 and not subject to exclusion under Evid. Code, § 352, “it
may support an inference . . . that the defendant is predisposed to
commit sex offenses”].) Further, based on its finding that defendant
had a disposition to commit rape, the jury could reasonably infer there
was a likelihood that defendant committed the rape or attempted rape
of Woolley in this case. In this way, evidence of defendant’s prior
sexual offenses is circumstantially relevant to the question whether
he committed the charged crime. (Falsetta, supra, 21 Cal.4th at
p. 915.) As emphasized above, however, any evidence of defendant’s
other sexual assaults, or any inference drawn therefrom, was
insufficient standing alone for the jury to have found him guilty of the
charged offense beyond a reasonable doubt. (See discussion, ante,
pt. III.A.3.) In sum, the inferences permitted to be drawn by the jury
under CALJIC No. 2.50.01 were rational and did not undermine the
jury’s decision on the ultimate questions of fact, i.e., whether the
People proved defendant’s guilt for the charged murder and the truth
of the special circumstance allegations beyond a reasonable doubt.
B. Sufficiency of the Evidence Regarding the First
Degree Murder Conviction and the Rape-Murder and
Burglary-Murder Special-Circumstance Findings
Defendant contends his death judgment should be reversed
because the evidence is insufficient to support his conviction of first
degree murder. He additionally argues there is insufficient evidence

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to support the rape-murder and burglary-murder special-
circumstance findings. Defendant’s contentions are without merit.
In reviewing a challenge to the sufficiency of the evidence, we
examine “the whole record to determine whether any rational trier of
fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict — i.e.,
evidence that is reasonable, credible, and of solid value — such that a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
“ ‘We presume in support of the judgment the existence of every fact
the trier of fact reasonably could infer from the evidence. [Citation.]
If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.’ ” (People v. Covarrubias (2016)
1 Cal.5th 838, 890 (Covarrubias).) “ ‘The standard of review is the
same in cases in which the prosecution relies mainly on circumstantial
evidence.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 324.)
In this case, the jury was instructed that to convict defendant of
first degree murder, the prosecution had to prove beyond a reasonable
doubt that Woolley’s killing was willful, deliberate and premeditated,
or the killing occurred during the commission or attempted
commission of rape or burglary. (§ 189.) In addition, under the law
in effect at the time of Woolley’s murder, the jury was required to find
that the murder was willful, deliberate, and premeditated to sustain
a special circumstance allegation based upon an enumerated felony
(here, rape or burglary). (Former § 190.2, subd. (c)(3)(iii), (v), added
by Stats. 1977, ch. 316, § 9, p. 1258.) We address defendant’s
sufficiency of the evidence claims by first examining his first degree
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murder conviction based on theories of felony murder (rape and
burglary) and deliberate and premeditated murder; and then the
rape-murder and burglary-murder special-circumstances findings.
Preliminarily, the prosecutor commented during argument that
certain facts about Woolley’s homicide were unknown. For example,
the prosecutor stated that it was unknown how defendant entered
Woolley’s apartment. The prosecutor theorized that defendant may
have simply knocked on Woolley’s front door and she opened the door
believing her boyfriend returned with the milk, or defendant may
have crawled through the kitchen window opening and hid behind the
curtain in the bathtub before attacking her. The prosecutor also
mentioned that it was unclear whether the refrigerator in the kitchen
had been moved as part of the investigation, and whether defendant
had been successful in actually raping the victim. “It is elementary,
however, that the prosecutor’s argument is not evidence and the
theories suggested are not the exclusive theories that may be
considered by the jury.” (People v. Perez (1992) 2 Cal.4th 1117, 1126;
accord, People v. Clark (2011) 52 Cal.4th 856, 947.) The jury may
draw reasonable inferences from the evidence that may be
inconsistent with the prosecution’s theory of the case.
1. Felony murder based on commission or attempted
commission of rape
Under the felony-murder rule, murder that is “committed in the
perpetration of, or attempt to perpetrate” rape is first degree murder.
(§ 189, subd. (a); People v. Guerra (2006) 37 Cal.4th 1067, 1129
(Guerra).)30 The same rule applied at the time of the crimes in this

30
As relevant here and at the time of the crimes in this case, the
felony-murder rule was substantively the same with respect to
underlying felonies of rape and, as discussed in the next section,

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case with respect to an underlying felony of rape. (See § 189, as
amended by Stats. 1970, ch. 771, § 3, pp. 1456–1457.)
“The mental state required for felony murder is ‘ “the specific
intent to commit the underlying felony” ’ [citation], and ‘ “the evidence
must establish that the defendant harbored the felonious intent either
prior to or during the commission of the acts which resulted in the
victim’s death.” ’ [Citation.] First degree felony murder does not
require proof of a strict causal or temporal relationship between the
felony and the killing. [Citation.] Rather, a killing has been
‘committed in the perpetration of’ the underlying felony within the
meaning of section 189 ‘if the killing and the felony are parts of one
continuous transaction.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 61–62
(Brooks).)
At the time of the crimes in this case, section 261 provided in
relevant part as follows: “Rape is an act of sexual intercourse,
accomplished with a female not the wife of the perpetrator, under
either of the following circumstances: [¶] . . . [¶] . . . Where she
resists, but her resistance is overcome by force or violence; [or]
[¶] . . . Where she is prevented from resisting by threats of great and
immediate bodily harm, accompanied by apparent power of
execution . . . .” (§ 261, as amended by Stats. 1970, ch. 1301, § 1,
p. 2405; see Story, supra, 45 Cal.4th at p. 1300.)
“An attempt to commit rape has two elements: the specific
intent to commit rape and a direct but ineffectual act done toward its
commission. [Citation.] The act must be a direct movement beyond
preparation that would have accomplished the crime of rape if not
frustrated by extraneous circumstances. [Citation.] An actual

burglary. (See § 189, as amended by Stats. 1970, ch. 771, § 3,
pp. 1456–1457.)

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element of the offense, however, need not be proven.” (Guerra, supra,
37 Cal.4th at p. 1130.) “Intent to commit rape is the intent to commit
the act against the will of the complainant. [Citations.] A defendant’s
specific intent to commit a crime may be inferred from all of the facts
and circumstances disclosed by the evidence.” (Ibid.) The jury was
instructed on the crimes of rape and attempted rape consistent with
the above authorities.31
The prosecution evidence established that Woolley was killed by
strangulation with a sock ligature in her apartment sometime
between the evening of October 24, 1978, and early the next morning.
Based on the totality of the evidence presented, the jury
reasonably could have inferred that sometime after Woolley and Rush

31
The trial court instructed the jury according to the law at the
time of the crime as follows: “A rape is an act of sexual intercourse
with a female without her consent who is not the wife of the
perpetrator, where, one, she resists, but her resistance is overcome by
force or violence, and/or two, she is prevented from resisting by threats
of great and immediate bodily harm, accompanied by the apparent
power of the perpetrator to carry out such threats. [¶] The female is
required to resist no more than is necessary to make it reasonably
clear that she is unwilling to engage in an act of intercourse. [¶] An
attempt to commit a crime consists of two elements, namely, a specific
intent to commit the crime, and a direct but ineffectual act done
towards its commission. [¶] In determining whether this act was
done, it is necessary to distinguish between mere preparation, on the
one hand, and the actual commencement of the doing of the criminal
deed, on the other. Mere preparation, which may consist of planning
the offense or of devising, obtaining or arranging the means for its
commission, is not sufficient to constitute an attempt. However, acts
of a person who intends to commit a crime will constitute an attempt
where those acts clearly indicate a certain, unambiguous intent to
commit that specific crime. These acts must be an immediate step in
the present execution of the criminal design, the progress of which
would be completed unless interrupted by some circumstance not
intended in the original design.”

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left Woolley’s apartment to go to Rush’s house and before they
returned to the apartment, defendant surreptitiously entered the
apartment through the kitchen window opening and turned off the
kitchen light; from there, defendant hid in the bathtub while Woolley
and Rush were gone until after Rush said goodnight to Woolley and
drove away from the apartment. In support of such a theory, the
prosecution’s evidence established the following: defendant had the
opportunity to view the front of Woolley’s apartment from his living
room window; defendant’s admissions to investigators included
observations regarding Woolley’s habitation of her apartment,
including on the night of the murder; the refrigerator was normally
placed in front of the 4-foot by 3-foot kitchen window opening and
could easily be moved by pushing it on its wheels; Rush and Woolley
“thought it was strange” and were alarmed to find the kitchen light
was turned off when they returned to the apartment from Rush’s
house because they believed they had turned it on before leaving;
before saying goodnight to Woolley, Rush walked throughout the
apartment, checking the rooms in the apartment except the bathroom
and dining room; Woolley usually kept the shower curtain in the open
position, but the shower curtain was discovered drawn shut on the
morning her body was discovered; the bathtub contained dirty shoe
prints; the refrigerator was positioned against a wall in the kitchen
instead of its normal position in front of the window opening with the
blanket;32 and someone turned on the bedroom light as Rush drove
away from the apartment.

32
The prosecutor acknowledged to the jury during argument that
Rush did not notice the refrigerator out of place when he walked
through the apartment before leaving, and that the refrigerator may
have been moved away from the window opening and placed up
against a wall during the investigation. The prosecutor further

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In addition, the jury reasonably could have inferred that when
defendant entered Woolley’s apartment, he did so with the intent to
rape her and acted in furtherance of this intent by hiding behind the
curtain in the bathtub and later fatally attacking her inside her
bedroom. When found, Woolley’s body was naked from the waist down
except for the blue sock on her right foot, and her upper body was
naked except for shirt sleeves covering each arm. Woolley’s legs were
partially splayed, with her left foot entangled in the green bedspread,
and her head was hanging over the side of the bed. We have stated in
the context of sufficiency of the evidence challenges to support a
conviction for a crime involving sexual assault that although “the
circumstance of the victim’s being found partially or wholly unclothed
is not by itself sufficient to prove a rape or an attempted rape has
occurred, such a fact is not irrelevant and is one of the relevant
circumstances.” (People v. Rundle (2008) 43 Cal.4th 76, 139.) Here,
evidence that defendant’s DNA was extracted from the sock ligature
and the semen stains on the underside of the green bedspread,
considered in combination with evidence of the almost nude state of
Woolley’s body and the sock ligature, “provides stronger evidence that
a forcible rape or attempted rape occurred than where the body simply

acknowledged that it remained unknown how defendant exited
Woolley’s apartment. The prosecutor suggested that the likely
scenario was that after entering the apartment through the window
opening, defendant moved the refrigerator back to its normal position
in front of the opening and exited the apartment through the front
door, which Woolley’s mother testified was unlocked when she entered
the apartment to check on her daughter. The prosecutor further
suggested that under these circumstances, Rush would not have
noticed anything unusual in the kitchen when he looked around the
apartment before saying goodnight to Woolley. We find this scenario
plausible and in any event are mindful that the manner in which
defendant exited the apartment is not an essential element of the
charged offense or special circumstances.

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is unclothed.” (Ibid. [evidence that the victim’s body was nude
considered with evidence her arms were physically restrained behind
her back strongly suggested the defendant forcibly raped or attempted
to rape the victim].) Further, that Woolley’s bedroom window was
broken from the inside suggested that the sexual attack may have
involved a struggle or a display of force intended to induce submission.
The evidence as a whole provided a sufficient basis for the jury’s
finding.33
In responding to this evidence, defendant argues, essentially,
that rape or attempted rape cannot be established in this case because
there was no evidence showing that he had any prior contact with the
victim and the only physical wounds the victim suffered were caused
by the ligature strangulation. This response fails to persuade.

33
The jury was not presented with evidence of an alternative
theory that would explain the presence of defendant’s DNA on
Woolley’s sock and the two semen stains on the bedspread. Also, as
has been described, the prosecutor presented the jury with evidence
that between 1973 and 1976, defendant committed a total of four
rapes against three women — and then defendant raped a fourth
woman in 1982. Based on this evidence, if the jury found by a
preponderance of the evidence that defendant committed these other
rapes, it could infer that defendant had a propensity to commit sexual
offenses. In turn, the jury could consider any propensity so inferred
as circumstantial evidence relevant to whether defendant intended to
and did rape or attempted to rape Woolley and whether he killed her
during a rape or attempted rape. (See Daveggio and Michaud, supra,
4 Cal.5th at p. 822; see also Falsetta, supra, 21 Cal.4th at p. 920
[“evidence of a defendant’s other sex offenses constitutes relevant
circumstantial evidence that he committed the charged sex offenses”];
id. at p. 922 [in addition to the issue of propensity, “other crimes
evidence . . . could be considered for any proper purpose, such as
establishing defendant’s motive, intent, or identity (if those issues
remain contested), or bolstering the . . . victim’s credibility”].)

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That defendant may not have had extensive prior contact with
Woolley is not by itself inconsistent with the jury’s finding that a rape
or attempted rape had occurred. (See, e.g., People v. Frazier (2024)
16 Cal.5th 814, 822–825.) And defendant’s denials of having known
Woolley were called into question by his admissions to investigators
that suggested he had at least familiarized himself with Woolley’s
existence and life at the apartment complex during the two weeks she
lived there. For example, as noted earlier, defendant admitted that
his living room window had a view of Woolley’s apartment; he
observed the number of people who helped Woolley move into her
apartment; and he knew Woolley to be possibly Caucasian or Hispanic
and as having had a “fiancé.” In addition, defendant admitted that on
the night of the killing, he saw that Woolley’s porch light was on at
11:30 p.m. and off later, sometime during the night. Hence, although
there was no evidence presented showing defendant was well-
acquainted with Woolley, defendant’s admissions could have led to a
reasonable inference that she had caught his attention and that he
was attuned to her habits and comings and goings in the apartment
complex.
Regarding the other evidentiary gap perceived by defendant, the
lack of bruising on Woolley’s body (except that associated with the
strangulation) is not fundamentally inconsistent with a rape or
attempted rape. (See former § 261; see also Guerra, supra, 37 Cal.4th
at p. 1132 [attempted rape does not require a physical sexual assault];
see also Carpenter, supra, 15 Cal.4th at p. 387 [rejecting the
defendant’s argument that attempted rape requires “ ‘some physical
conduct of a distinctly and unambiguously sexual nature’ ”].) Even
when the absence of bruising is folded into the equation, the totality
of the evidence was sufficient to establish defendant’s liability for
felony murder under a theory of rape or attempted rape.

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For these reasons, we conclude the record discloses sufficient
evidence for a reasonable trier of fact to find beyond a reasonable
doubt defendant’s guilt of felony murder based on rape or attempted
rape.
2. Felony murder based on commission or attempted
commission of burglary
As relevant here, the felony-murder rule provides that a murder
“committed in the perpetration of, or attempt to perpetrate” a
burglary is first degree murder. (§ 189, subd. (a).)34 “Every person
who enters any house, room, apartment, . . . with intent to commit
grand or petit larceny or any felony is guilty of burglary.” (§ 459,
subd. (a).)35 The crime of burglary is complete upon unlawful entry
with felonious intent, regardless of whether the intended felony is
actually committed. (People v. Montoya (1994) 7 Cal.4th 1027, 1041–
1042 (Montoya).) The jury was instructed accordingly.
As discussed in the preceding section, there is sufficient
evidence to support a first degree felony-murder conviction based on
the theory that defendant killed Woolley in the perpetration of a rape
or an attempted rape (§ 189). As relevant here, that theory was
predicated on circumstantial evidence, including that defendant
(1) entered Woolley’s apartment through the kitchen window opening
sometime after Woolley and Rush left for Rush’s house and before they
returned to the apartment, and (2) did so with the intent to commit
rape. Necessarily, this evidence satisfies the definition of a completed

34
With respect to an underlying felony of burglary, a nearly
identical felony-murder rule applied at the time of the crimes.
(Compare § 189, subd. (a) with former § 189, as amended by Stats.
1970, ch. 771, § 3.)
35
A nearly identical version of this portion of the statute was
applicable at the time of the crimes in this case. (§ 459, as amended
by Stats. 1977, ch. 690, § 3.)

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burglary under section 459 and Montoya, supra, 7 Cal.4th 1027. We
therefore conclude there is substantial evidence from which a
reasonable trier of fact could have found beyond a reasonable doubt
that defendant formed the intent to commit rape before he entered
Woolley’s apartment and before killing her. Accordingly, we conclude
there is sufficient evidence to support defendant’s first degree felony-
murder conviction based on commission of a burglary, with both
crimes committed as parts of a continuous transaction. (Brooks,
supra, 3 Cal.5th at pp. 61–62.)
3. Deliberate and premeditated murder
“ ‘ “A verdict of deliberate and premeditated first degree murder
requires more than a showing of intent to kill. . . . ‘Deliberation’ refers
to careful weighing of considerations in forming a course of action;
‘premeditation’ means thought over in advance. . . . ‘The process of
premeditation and deliberation does not require any extended period
of time. “The true test is not the duration of time as much as it is the
extent of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” ’
(People v. Cole (2004) 33 Cal.4th 1158, 1224.)” (People v. Ghobrial
(2018) 5 Cal.5th 250, 278 (Ghobrial).) Consistent with this definition,
the trial court correctly instructed the jury concerning deliberate and
premeditated murder pursuant to CALJIC No. 8.20.
“In People v. Anderson (1968) 70 Cal.2d 15, 26–27 . . . we
identified three categories of evidence that tend to establish a
premeditated and deliberate murder — planning, motive, and
method. ‘But these categories of evidence . . . “are descriptive, not
normative.” (People v. Perez (1992) 2 Cal.4th 1117, 1125.) They are
simply an “aid [for] reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result
of preexisting reflection and weighing of considerations rather than

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mere unconsidered or rash impulse.” ’ ” (Ghobrial, supra, 5 Cal.5th at
p. 278.) “[Anderson] did not refashion the elements of first degree
murder or alter the substantive law of murder in any way.” (People v.
Thomas (1992) 2 Cal.4th 489, 517.) In this case, the record discloses
evidence, and reasonable inferences that can be drawn from that
evidence, falling within all three categories.
With respect to planning, defendant argues that because the
perpetrator used the nearest available item, Woolley’s sock, to
accomplish the murder, the most that can be shown by the evidence is
that the perpetrator acted spontaneously and meant to kill but not
according to a preconceived plan. In support, defendant relies on
People v. Rowland (1982) 134 Cal.App.3d 1, 9 (Rowland). The
appellate court in Rowland held that although the evidence was clear
that the defendant killed the victim, the manner of killing — ligature
strangulation of the victim with an electrical cord the defendant found
in the bedroom where the murder occurred — failed to show he “must
have premeditated and deliberated the killing.” (Ibid.) In the court’s
view, the defendant’s use of the electrical cord did not demonstrate
that he had taken “ ‘thoughtful measures’ to procure a weapon for use
against the victim.” (Id. at p. 8.)
In the present case, when considered with evidence of
defendant’s motive and manner of killing, the jury reasonably could
have found that in choosing to use Woolley’s sock as a ligature
defendant’s actions reflected a careful weighing of considerations and
were “directed toward, and explicable as intended to result in, the
killing — what may be characterized as ‘planning’ activity.” (People
v. Anderson, supra, 70 Cal.2d at pp. 26–27.)
With respect to motive, the jury reasonably could have inferred
that defendant determined it was necessary to kill Woolley to prevent
her from reporting his crimes and identifying him, “a motive it could

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reasonably conclude was imbued with deliberation and
premeditation.” (People v. Memro (1995) 11 Cal.4th 786, 863.) In this
vein, the prosecutor argued that “there weren’t any circumstances
even back then where [defendant] could claim that [any rape or
attempted rape] was consensual or that he had nothing to fear. He
was toast if she lived, and so he strangled her.” (See People v. Lucero
(1988) 44 Cal.3d 1006, 1019 (Lucero) [“The jury may have inferred
that defendant killed [the victims] in order to avoid disclosure of his
conduct”].)
The manner of killing also supports a finding of premeditation
and deliberation. The evidence introduced at trial, including
Dr. Hanks’s testimony, established that the force defendant applied
to the ligature around Woolley’s neck “crushe[d] [her] necklace into
the skin”; that Woolley was likely rendered unconscious anywhere
from 20 to 30 seconds — and up to three minutes — after the sock
ligature was initially applied to her neck; that death resulted in three
to five minutes; that defendant’s DNA was found in the mixture of
DNA embedded on the sock ligature; that the strangulation caused
Woolley to suffer a circumferential wound on her neck, blood spots on
her face, and hemorrhages in her eyes, thyroid gland, and neck
muscles; and that the hemorrhaging occurred before Woolley’s death.
“This prolonged manner of taking a person’s life, which requires
an offender to apply constant force to the neck of the victim, affords
ample time for the offender to consider the nature of his deadly act.”
(People v. Hovarter (2008) 44 Cal.4th 983, 1020.) “While ligature
strangulation may not always evidence a premeditated murder,” a
jury may view evidence of a strangulation “as a deliberate manner of
killing sufficient to indicate a ‘preconceived design.’ ” (Lucero, supra,
44 Cal.3d at p. 1020, citing Rowland, supra, 134 Cal.App.3d at p. 9;
People v. Bonillas (1989) 48 Cal.3d 757, 792 [“Ligature strangulation
is in its nature a deliberate act”]; see also People v. Stitely (2005)
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35 Cal.4th 514, 543 [rejecting the defendant’s claim that the victim’s
strangulation was “impulsive or accidental” despite the alleged “lack
of any evidence that he procured a weapon in advance or planned the
killing”]; People v. Solomon (2010) 49 Cal.4th 792, 815 [the
defendant’s use of materials close at hand to bind his victims “does not
preclude the inference that he thereafter considered a course of action
to kill them”].)
We conclude from the foregoing that there was sufficient
evidence for a finding beyond a reasonable doubt that Woolley’s
murder was willful, deliberate, and premeditated.
4. Felony-murder special circumstances
Defendant contends the evidence is insufficient to support either
the rape-murder or burglary-murder special-circumstance true
findings because the evidence of premeditation and deliberation was
lacking — as was the evidence that the murder was committed during
commission of a felony. We disagree.
Under the 1977 death penalty law, in order to find true a felony-
murder special circumstance, the jury was required to find that the
murder was committed during the commission or attempted
commission of any of the specified enumerated felonies, including rape
and burglary as alleged here. (Former § 190.2, subd. (c)(3)(iii) [rape],
(v) [burglary], added by Stats. 1977, ch. 316, § 9, p. 1258.) In addition,
each felony-murder special circumstance required the jury to also find
that the murder was willful, deliberate, and premeditated. (Former
§ 190.2, subd. (c)(3), added by Stats. 1977, ch. 316, § 9, p. 1258; People
v. Robertson, supra, 33 Cal.3d at p. 48, fn. 14.) Finally, in People v.
Green (1980) 27 Cal.3d 1, 61 (Green), this court held that application
of the felony-murder special circumstance in the 1977 death penalty
law requires that the defendant commit the act resulting in death “in
order to advance an independent felonious purpose,” meaning that the

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defendant must not have perpetrated the underlying felony as “merely
incidental to the murder.” (Ibid.; accord, People v. Nieves (2021)
11 Cal.5th 404, 466.) The evidence here was sufficient to satisfy the
1977 rape-murder and burglary-murder special-circumstances
requirements.
a. Rape-murder special circumstance
As explained ante, part III.B.2., there was sufficient evidence to
uphold defendant’s first degree murder conviction under section 189
on a felony-murder theory based on commission of rape or attempted
rape (former § 261). In addition, there was sufficient evidence to
affirm defendant’s first degree murder conviction based on a theory
that Woolley’s murder was deliberate and premeditated. (See ante,
pt. III.B.3.) Further, based on the evidence at trial, the jury could
reasonably have found that defendant killed Woolley in order to
prevent her from reporting his crimes and identifying him, thus
establishing that defendant killed Woolley “in order to advance an
independent felonious purpose.” (Green, supra, 27 Cal.3d at p. 61.)
Accordingly, we conclude sufficient evidence supports the rape-
murder special circumstance.
b. Burglary-murder special circumstance
The requirement that the murder be deliberate and
premeditated (former § 190.2, subd. (c)(3)) is satisfied here because,
as with the rape-murder special circumstance discussed in the
preceding paragraph, the evidence was sufficient to prove beyond a
reasonable doubt that Woolley’s murder was deliberate and
premeditated. To satisfy the requirement under the 1977 law that the
burglary committed was also first degree (former § 190.2,
subd. (c)(3)(v)), we must assess whether the evidence that supports
defendant’s burglary-murder felony-murder conviction under section
189 (see ante, pt. III.B.2.) demonstrates commission of a first degree

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burglary of Woolley’s apartment “with an intent to commit grand or
petit larceny or rape.” (Former § 190.2, subd. (c)(3)(v), citing former
§ 460, subd. (1).) As discussed below, we conclude it does.
To satisfy the requirements for a first degree burglary as defined
by the statute applicable at the time of the crimes, the prosecution
was required to prove the burglary of Woolley’s apartment was
“committed in the nighttime.” (§ 460, subd. (1), as amended by Stats.
1976, ch. 1139, § 206.5, p. 5120.) Here, the jury instructions specified
nighttime as “between sunset and sunrise.”
The prosecution’s evidence established that (1) Woolley’s
apartment was a single structure in the apartment complex located in
an open space among multiple apartments and parking spaces;
(2) defendant could view Woolley’s apartment from his living room
window and was in a position to monitor her comings and goings;
(3) defendant was at home during the evening of the murder and
stated that he observed Woolley’s porch light was turned on at
11:30 p.m. and turned off sometime later; (4) on the afternoon before
Woolley’s murder, Woolley and Rush spent about 45 minutes in
Woolley’s apartment before leaving for Rush’s residence; (5) Rush and
Woolley returned to the apartment after eating dinner at Rush’s
house; and (6) Woolley was found the following morning wearing the
same shirt Rush had last seen her wearing, with her shorts and
underwear on the floor next to her bed.
Based on this evidence, the jury reasonably could have inferred
that defendant was watching the apartment from his living room
window during the evening of October 24, 1978, and waited until after
dark — sometime after Woolley and Rush had left for Rush’s house —
to gain entry into Woolley’s apartment in order to avoid detection.
Specifically, the jury reasonably could have inferred that defendant
entered Woolley’s apartment through the kitchen window and turned

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off the kitchen light to avoid revealing his presence inside the kitchen
to someone outside who might know that it was not his apartment.
Defendant’s calculated concern in this respect is consistent with his
hiding in Woolley’s bathtub behind the shower curtain until after
Rush left the apartment and defendant could attack Woolley in her
bedroom. The jury could also reasonably infer, based on the fact that
Woolley was still wearing the shirt she was wearing when Rush left
and the shorts she had been wearing were nearby on the floor, that
defendant entered her apartment after sunset, before Woolley had
time to change out of her day clothes, but before sunrise.
For these reasons, we conclude there is sufficient evidence from
which a reasonable trier of fact could have found beyond a reasonable
doubt that defendant entered Woolley’s apartment during nighttime
within the meaning of former section 460, subdivision (1). In addition,
in light of the evidence supporting defendant’s first degree murder
conviction based on a burglary-murder felony-murder theory (see
ante, pt. III.B.2) and deliberate and premeditated murder (see ante,
pt. III.B.3), the jury could reasonably have found that, similar to
defendant’s commission of the rape or attempted rape of Woolley,
defendant’s burglary of Woolley’s apartment with the intent to rape
was not incidental to the murder and that defendant committed the
murder in order to avoid detection for his crimes. (Green, supra,
27 Cal.3d at p. 61.) We conclude sufficient evidence supports the
burglary-murder special circumstance.
Defendant also argues on appeal that the evidence was
insufficient to establish that he committed a burglary within the
meaning of the burglary special circumstance allegation because, even
assuming he “went to [Woolley’s] apartment with a sexual intent,” he
may not have intended to rape the victim; rather, defendant “may
have [gone] to the apartment hoping to persuade the victim to have
sex and committed the murder in a fit of rage when she refused.” As
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relevant here, the requisite intent for the burglary element of the
burglary-murder special circumstance is “an intent to commit . . .
rape” (former § 190.2, subd. (c)(3)(v)). Even if defendant had relied on
such a theory at trial, the jury reasonably could have rejected any
notion that defendant had hoped to persuade Woolley to have sex with
him. That is, the prosecutor’s evidence was sufficient to prove that
defendant entered Woolley’s apartment through the kitchen window
when she was away and then hid behind a curtain in her bathtub until
sometime after she returned and later retired to her bedroom.
Objectively, these are not the actions of one hoping to persuade
another to engage in a consensual sexual encounter. Moreover, while
defendant’s comments indicated some familiarity with Woolley, he
admitted to investigators that he “did not really know” Woolley and
further recalled that she may have had a fiancé. In short, this
implausible theory does not cast doubt on the sufficiency of the
evidence.
C. Admission of Woolley’s Death Certificate and
Testimony Regarding the Time of Death
Defendant contends the trial court erred in admitting the death
certificate and testimony of Dr. Hanks to establish the time of death.
The death certificate was prepared by a physician who did not testify
at trial. Dr. Hanks’s testimony regarding the time of death relied on
out-of-court statements in an autopsy report prepared by another
coroner who was not available at trial. We conclude any error in
admitting the evidence was harmless beyond a reasonable doubt.
1. Background
Dr. Ambrosecchia, who was deceased at the time of trial,
performed the autopsy and prepared an autopsy report, which
indicated that death occurred between 11:00 p.m. and 1:00 a.m. The
autopsy report was not admitted into evidence. The death certificate

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was prepared by Dr. Richard Gervais and listed the cause of death as
strangulation by ligature and the time of death as “about
11:30 P[.M. ]” Dr. Gervais did not testify at trial. The death
certificate was admitted into evidence during the prosecution’s case-
in-chief; at that time, the death certificate was admitted without
objection from defense counsel but as discussed below, counsel later
objected to the portion of the death certificate reflecting the time of
death.
After the prosecution rested its case, defense counsel indicated
that he intended to move under section 1118.1 to dismiss the murder
charge on the ground the evidence was insufficient to establish the
murder was deliberate and premeditated. Also, counsel sought
dismissal of the burglary special circumstance allegation on the
ground there was insufficient evidence for a jury to find the burglary
was in the first degree. Counsel noted that at the time of the crimes
in this case, a felony-murder special circumstance premised on
commission or attempted commission of a burglary required that the
burglary be committed during nighttime. He claimed that the time of
death had not been established, and that the evidence presented
reasonably supported the inference Woolley was killed after sunrise.
(See former § 190.2, subd. (c)(3)(v), added by Stats. 1977, ch. 316, § 9,
citing former § 460, subd. (1), as amended by Stats. 1976, ch. 1139,
§ 206.5 [first degree burglary].)
The trial court deferred a hearing on the defense motion until
after the jury instruction conference. The prosecutor then moved to
reopen the prosecution’s case to present additional evidence
concerning the time of death. After hearing argument from the
parties, the trial court granted the prosecutor’s motion. Defense
counsel thereafter withdrew the defense motion to dismiss.

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Upon reopening the prosecution’s case-in-chief, the prosecutor
recalled Dr. Hanks to testify regarding the time of Woolley’s death.
Dr. Hanks testified that she had reviewed the autopsy report and the
photographs that were taken at the time of the autopsy. One of the
autopsy photographs depicted a wound that was consistent with a
liver temperature test used to establish the time of death. Dr. Hanks
testified that stomach contents can also be used to determine time of
death, and that the autopsy report described Woolley’s stomach
contents as “filled with a digested, creamy, tan food residue of no
note,” “mean[ing] that the stomach was full of digested food.” Based
on her experience and training, Dr. Hanks stated the stomach
generally “takes between one and five hours to empty.” Given
Woolley’s stomach was “full of digested food particles,” Dr. Hanks
opined that “she ate a meal . . . a few hours before her death.” She
also related that Dr. Ambrosecchia had indicated in the autopsy
report that time of death occurred between 11:00 p.m. and 1:00 a.m.
Based on her review of the autopsy report, Dr. Hanks concurred with
that opinion. On cross-examination, Dr. Hanks testified that she did
not rely on the liver temperature test indicated in the autopsy report
because the result was not recorded.
After the defense rested its case, defense counsel objected to the
portion of the death certificate that indicated time of death on grounds
of hearsay and lack of foundation and requested it be redacted. In
making the objection, counsel referenced Dr. Hanks’s related
testimony. The trial court overruled counsel’s objection and denied
the request to redact the death certificate, noting that the death
certificate could be admitted under the official records exception to the
hearsay rule under Evidence Code section 1281. Defense counsel did
not further object regarding any time of death evidence.

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2. Harmlessness
We do not need to determine whether the death certificate and
the portion of Dr. Hanks’s testimony relating Dr. Ambrosecchia’s
conclusions in the autopsy report were erroneously admitted at trial
because any error in admitting this evidence was harmless when
measured by either the standard for state law error or that applicable
to a federal constitutional violation.
Defendant’s claim of error is premised on Crawford v.
Washington (2004) 541 U.S. 36 (Crawford), in which the United States
Supreme Court held that in criminal prosecutions the Sixth
Amendment confrontation clause bars the government from
introducing “testimonial hearsay statements unless (1) there is a
showing that the declarant is unavailable, and (2) the defendant had
a prior opportunity to cross-examine the declarant.” (People v. Perez
(2018) 4 Cal.5th 421, 455.) In addition, defendant asserts that
admission of the death certificate and Dr. Hanks’s testimony violated
People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez) insofar as that
decision held that “[w]hen any expert relates to the jury case-specific
out-of-court statements, and treats the content of those statements as
true and accurate to support the expert’s opinion, the statements are
hearsay.”36
In Sanchez, we recognized that “improper admission of hearsay
may constitute state law statutory error.” (Sanchez, supra, 63 Cal.4th
at p. 698.) We ordinarily assess such error under People v. Watson

36
Notwithstanding defendant’s failure to object to the evidence at
his 2004 trial, the claim is not forfeited. (See People v. Perez (2020)
9 Cal.5th 1, 14 [a defendant does not forfeit a Sanchez claim by failing
to object at trial in a case predating that decision]; People v. Pearson
(2013) 56 Cal.4th 393, 462 [a defendant’s failure to object does not
forfeit a Crawford claim in a trial occurring before Crawford was
decided].)

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(1956) 46 Cal.2d 818, 836, asking whether “it is reasonably probable
that a result more favorable to the appealing party would have been
reached in the absence of the error.” “However, if the improperly
admitted hearsay is also testimonial within the meaning of the high
court’s confrontation clause jurisprudence (see, e.g., Crawford, supra,
541 U.S. at pp. 68–69), the error is assessed under the federal
constitutional standard of Chapman v. California (1967) 386 U.S. 18,
24 . . . .” (People v. Valencia (2021) 11 Cal.5th 818, 840.) As the high
court explained, the beneficiary of such an error has the burden to
demonstrate beyond a reasonable doubt that the error did not
contribute to the convictions. (Chapman v. California (1967) 386 U.S.
18, 24, 26 (Chapman).)
Defendant asserts that the erroneous admission of the portions
of the death certificate and Dr. Hanks’s testimony relating the time of
Woolley’s death was prejudicial in the guilt phase because evidence
regarding when Woolley died was “crucial” to resolving the question
whether the alleged burglary occurred at night (and was therefore
first degree burglary), and, in turn, the truth of the burglary-murder
special-circumstance allegation. Defendant contends that because
Woolley’s body was not discovered until morning, her death did not
necessarily occur at night. It follows, defendant asserts, that the
burglary-murder special circumstance cannot be sustained absent the
erroneous admission of evidence concerning the time of death. We
disagree.
The question whether defendant committed first degree
burglary within the meaning of the 1977 burglary-murder special
circumstance did not turn on Woolley’s time of death. A burglary is
complete upon unlawful entry with felonious intent. (See Montoya,
supra, 7 Cal.4th at pp. 1041–1042.) As defined at the time of the
murder in this case, a first degree burglary was a burglary of an
inhabited dwelling committed at nighttime. (Former § 460, subd. (1);
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Stats. 1976, ch. 1139, § 206.5.) In denying defendant’s sufficiency of
the evidence challenge to the 1977 burglary-murder special-
circumstance true finding (see ante, pt. III.B.2), we concluded that the
prosecution’s evidence, and the reasonable inferences that can be
drawn from it, was adequate to prove beyond a reasonable doubt that
defendant committed a first degree burglary by entering Woolley’s
apartment through the kitchen window opening with intent to rape
during nighttime and in particular, that defendant entered during
nighttime in order to avoid detection. Hence, the prosecutor proved
defendant committed first degree burglary without resort to evidence
of time of death.
Moreover, the jury was properly instructed on the offense of first
degree burglary in the context of the burglary-murder special
circumstance, including that the defendant entered “between sunset
and sunrise.” Because, as emphasized earlier, jurors are presumed to
understand and follow the instructions given (People v. Buenrostro
(2018) 6 Cal.5th 367, 431), we conclude the jury reasonably
understood that it was evidence of the circumstances under which
defendant entered the apartment — including the time of his entry,
not the time of Woolley’s death — that determined whether the
prosecutor had proved commission of a first degree burglary within
the meaning of the 1977 burglary-murder special-circumstance
allegation. Viewed in this context, any error in admitting the time of
death evidence through the death certificate or Dr. Hanks’s testimony
was harmless beyond a reasonable doubt under Chapman.
Defendant additionally insists the errors in admitting the time
of death evidence were prejudicial because it was essential to the
prosecution’s theory that defendant entered the apartment, hid
behind the curtain in the bathtub, and waited for Woolley to return
home. He asserts this theory supported other charges and
allegations — that defendant entered the apartment with intent to
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rape, that he in fact raped or attempted to rape Woolley, and that her
murder was deliberate and premeditated. Defendant asserts that
because the prosecution’s evidence also showed Woolley and her
boyfriend returned home after watching television at her boyfriend’s
house, the prosecution’s theory “might have been possible” if Woolley
had been killed at some time up to 11:30 p.m., as indicated in the
death certificate. Defendant maintains that the prosecutor’s theory
“is far less likely” if Woolley had been killed “at a later time,” because
“the perpetrator undoubtedly would have been discovered before
then.” In essence, defendant argues the erroneous admission of
evidence of Woolley’s time of death was prejudicial because the time
indicated on the death certificate made the prosecution’s murder
theory at least “possible.”
That the prosecution’s murder theory is consistent with the time
of death on the death certificate is of no consequence given that, as
discussed ante, part III.B, the time of death did not enter into the
jury’s calculus concerning the burglary-murder special circumstance
allegation, or concerning any of the remaining charges or special
circumstances allegations. Granted, in argument, the prosecutor
commented that Woolley’s death occurred between 11:30 p.m. and
1:00 a.m. based on “the liver temperature test” and “even more
strongly because of the contents of the stomach.” The statements were
made as part of the prosecutor’s introductory remarks and were the
only reference to the time of death based on either the death certificate
or Dr. Hanks’s testimony relating Dr. Ambrosecchia’s conclusions in
the autopsy report. The prosecutor did not urge the jury to rely on
time of death evidence in deciding the charges in this case.
Defendant’s speculation that the jury was persuaded by the
prosecution’s theory based on its consistency with the death
certificate’s time of death entry provides no ground for reversal.
Notwithstanding defendant’s arguments to the contrary, we can say

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beyond a reasonable doubt that any error in admitting the death
certificate and the portion of Dr. Hanks’s testimony relating time of
death evidence from the autopsy conclusions “did not contribute to the
verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.)
Finally, defendant asserts the errors in admitting the death
certificate and Dr. Hanks’s testimony relating the autopsy report
conclusions were prejudicial because they affected the jury’s penalty
determination. He contends that because “the time of death alleged
in the death certificate and coroner’s report supported the prosecutor’s
argument that [defendant] entered the victim’s house and waited for
her to return,” the time of death evidence contributed to the creation
of a particularly disturbing image for jurors to consider as “a powerful
factor in aggravation.” This argument, too, is speculative.
Even without the allegedly erroneously admitted evidence, the
jury would have been able to visualize this disturbing scenario based
on the prosecution’s evidence and the reasonable inferences that can
be drawn from it. The jury also was entitled to hear and consider the
prosecutor’s theory of the circumstances of the crime, even though
that also was disturbing. Moreover, the trial court gave CALJIC
No. 8.85, which informed the jury concerning the factors to consider
in determining penalty, including factor (a) under section 190.3, “[t]he
circumstances of the crime of which the defendant was convicted in
the present proceeding and the existence of any special circumstances
found to be true.” Thus, just as the death certificate and time of death
testimony did not impact whether the jury determined that a burglary
occurred, the evidence did not change the prosecutor’s theory that

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defendant waited inside Woolley’s apartment for her to return before
assaulting and killing her.37
D. Admission of the Results of the Bedspread DNA
Analysis
Defendant claims the trial court abused its discretion when it
admitted the results of the DNA analysis because the prosecution
failed to account for flaws in the chain of custody. He further suggests
that DNA found on the bedspread may not have been present in 1978,
and that trial counsel rendered ineffective assistance by failing to
bring evidence of this irregularity to the court’s attention during the
hearing on his motion to exclude the evidence.
Before trial, defendant filed a motion to exclude “all physical
evidence” in the case, including evidence obtained from the bedspread,
bedsheets, and blue socks, because of alleged gaps in the chain of
custody. At a hearing on the motion, defendant pointed to an
inconsistency on written cards and reports: evidence was seized on
October 25 and 26 in 1978, and the property cards indicated that
evidence moved from the property room to examiner Diosi at the crime
lab on November 30, but Diosi wrote in his report that he analyzed
evidence on October 26 through October 28. Defendant also noted
that evidence sat in the property room until 1999 when it was
analyzed again, and while there was no documentation showing
anything else happened with the evidence in the meantime, “we know
that something happened to the property because at least some of the

37
We reject defendant’s argument that admission of this evidence
was prejudicial because the time of death evidence corroborated
Rush’s testimony and without it, the jury may have viewed Rush’s
story more skeptically. Defendant’s argument relies on facts not
before the jury; namely, the specific time that Rush may have left
Woolley’s apartment. Without this information, the time of death
evidence would have been less impactful than defendant argues.

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property turns up missing,” specifically a blood sample and vaginal
swab. Defendant argued that there was a break in the chain of
custody for all the evidence because some evidence went missing
without any documentation to explain what happened to the evidence,
including who touched it and whether it was analyzed.
The prosecution clarified that it only sought to introduce two
pieces of seized evidence: the green bedspread and the blue sock. The
prosecution presented several offers of proof, which the defense
expressly said it accepted for purposes of resolving the pretrial motion.
First, if criminalist Laskowski were called to testify, he would explain
that in 1978, the crime lab was a part of the sheriff’s department and
therefore, the property cards did not distinguish between the crime
lab and the property room. Laskowski would also testify that he
obtained the blue sock from the victim’s neck in the coroner’s facility
on October 26, 1978, and brought it directly to the crime lab where he
created the property card. After the crime lab completed its analysis,
he brought the sock to the property room on January 8, 1979, as
reflected on the property card.
The prosecution’s offer of proof also provided that if James
Smith, a technical investigator with the sheriff’s department, were
called to testify, he would explain that he obtained the green
bedspread from the victim’s apartment and created the property card
for it before taking the bedspread to the lab. If Diosi were called to
testify, he would explain that he examined the green bedspread on
October 25, 1978, and then took it to the property room on January 8,
1979, where the property room manager acknowledged receipt on the
property card. Either Laskowski or Diosi would testify that between
1978 and the time of the hearing, the property room and crime lab
were always locked and secured facilities, admission was granted only
to persons working for the sheriff’s department or the district
attorney, “and that every effort is made to prevent tampering with
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any evidence by any — or even contact with any evidence by anyone
other than authorized personnel.”38
When the court inquired about the alleged missing evidence, the
prosecutor stated that if called to testify, the chief criminalist would
explain that in 1978, “the coroner’s office had a ‘nasty habit’ of making
slides from swabs that they took and then throwing away the swabs,
and that the slides in this case still exist, but he cannot speak to
whether that occurred in this case.”
The prosecutor acknowledged that he did not have a complete
set of property cards before him, and argued, “One thing is certain: If
you accept everything that [defense counsel] said but you also accept
my offer of proof with regard to what the testimony would be, every
piece of evidence or — these two pieces of evidence, the only ones that
are relevant, had to have been one of two places the entire time
between October 25th, 1978, and the time that the evidence was
analyzed. And that’s either in the Kern County Regional
Criminalistics Laboratory or in the Kern County Sheriff’s Property
Room, both secure facilities.” He further argued that “problems with
chain of custody go to the weight, not the admissibility, unless the
problems are so great that there is a reasonable possibility that it isn’t
the same thing or that — or that there’s been some sort of tampering
with it. Not a shred of evidence of that, your Honor. This evidence
was either in the lab or the property room for all of those years.”
The trial court denied the motion to exclude the physical
evidence at issue. The court reminded the parties, however, that

38
Defense counsel accepted the offer of proof as modified to
provide that, insofar as individuals not working for the sheriff’s
department or district attorney might have been provided with access
to evidence stored in the property room, it was under the supervision
of people working there.

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“whoever wants to introduce the evidence will have to show a chain”
of custody during trial.
During trial, the parties stipulated that People’s exhibit No. 4,
a green bedspread, was the bedspread depicted in a photograph of the
crime scene and that it was the bedspread on which Woolley was found
lying on October 25, 1978. The parties further stipulated that the
bedspread was properly bagged, marked, and taken to the Kern
County crime lab. Defense counsel agreed to this stipulation in
exchange for a similar stipulation from the prosecution regarding a
bedsheet that the defense later admitted into evidence.39
1. The trial court’s understanding of the legal standard
Defendant asserts the trial court misunderstood the legal
standard for evaluating a challenge to the chain of custody, but he is
mistaken. During the hearing on the initial motion to exclude, the
trial court did not state its reasons for denying the motion. This lack
of explanation, however, does not imply what defendant suggests. “In
the absence of evidence to the contrary, we presume that the court
‘knows and applies the correct statutory and case law.’ ” (People v.
Thomas (2011) 52 Cal.4th 336, 361.)
Defendant points to comments from the court after his jury trial
concluded. As part of his motion for a new trial, defendant alleged

39
The Attorney General asserts defendant forfeited this argument
on appeal by stipulating to the chain of custody at trial. Defendant
counters that the pertinent stipulation admitted only (1) that the
bedspread admitted at trial was the same bedspread that Woolley was
found on, and (2) that the bedspread was properly bagged, marked,
and taken to the crime lab. Defendant regards the stipulation as not
reflective of any further agreement that there was no tampering after
the bedspread was brought to the crime lab. We assume that the
claim has not been forfeited, and reject defendant’s claim that the trial
court abused its discretion on the merits.

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ineffective assistance of counsel. Defendant told the court that “[t]he
chain of custody or lack thereof was not attacked, as it should have
been” and that he asked his attorneys to seek assistance from the FBI
to examine the Kern County forensics laboratory’s protocol. In
response, defense counsel explained that the defense “had no reason
that we could articulate to the FBI to suspect that this county was
manipulating evidence, other than this case itself,” and reminded the
court that he presented arguments to the jurors challenging the DNA
analyses the best way that he could, “but the jurors didn’t buy it.”
When addressing defendant’s argument, the trial court said, “As far
as the chain of custody and not calling in the FBI, I don’t know if the
FBI would have done anything if . . . the [d]efense . . . had, in fact,
called the — called the FBI. There was nothing there. They had —
once the mother identified the bedspread, they — I think that’s when
the chain of custody pretty much was complete. [¶] And then,
apparently, the D.A. also stipulated to the chain of custody of the
defense item that the [d]efense wanted in, the bed sheet. So I think
that — I don’t have any complaints about the defense work in that
regard.”
Defendant asserts the court’s comment about the chain of
custody being complete once the mother identified the bedspread is
proof that the court misunderstood the law by failing to consider the
possibility of tampering, but he takes the court’s comment out of
context. This discussion took place several weeks after the court ruled
on defendant’s motion to exclude the evidence, in the context of a
challenge asserting ineffective assistance of counsel. The court was
not reviewing defendant’s previous motion to exclude evidence or
speaking to its decision to deny the motion, and its comments do not
imply that the court misunderstood the governing legal standard
when it made that ruling.

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2. The prosecution’s burden
Defendant next asserts the trial court abused its discretion
when it admitted the DNA evidence because the prosecution did not
meet its burden of demonstrating that there had been no tampering
with the evidence.
“The burden on the party offering the evidence is to show to the
satisfaction of the trial court that, taking all the circumstances into
account including the ease or difficulty with which the particular
evidence could have been altered, it is reasonably certain that there
was no alteration.” (People v. Riser (1956) 47 Cal.2d 566, 580 (Riser).)
“Undoubtedly the party relying on an expert analysis of
demonstrative evidence must show that it is in fact the evidence found
at the scene of the crime, and that between receipt and analysis there
has been no substitution or tampering [citation], but it has never been
suggested by the cases, what the practicalities of proof could not
tolerate, that this burden is an absolute one requiring the party to
negative all possibility of tampering.” (Ibid.) “ ‘ “The requirement of
reasonable certainty is not met when some vital link in the chain of
possession is not accounted for, because then it is as likely as not that
the evidence analyzed was not the evidence originally received. Left
to such speculation the court must exclude the evidence. [Citations.]
Conversely, when it is the barest speculation that there was
tampering, it is proper to admit the evidence and let what doubt
remains go to its weight.” ’ ” (People v. Catlin (2001) 26 Cal.4th
81, 134 (Catlin).) “The trial court’s exercise of discretion in admitting
the evidence is reviewed on appeal for abuse of discretion.” (Ibid.)
Defendant points to the missing blood sample and vaginal swab
as telling, noting that the prosecutor did not detail any protocols in
place regarding how the lab secured evidence beyond stating that the
facilities were always locked. His reliance on these missing samples
is misplaced. The prosecution proffered that at the time of the offense,
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the coroner’s office often made slides from swabs and then threw away
the swabs. He could not state whether that happened in defendant’s
case, but he informed the court that the slides made from the samples
still existed. Defendant asserts that if the court applied Riser, the
prosecutor’s “admission” that the lab “habitually destroyed evidence”
should have diminished the court’s reasonable certainty that there
was no alteration here. The court inquired about the alleged missing
evidence, however, and was satisfied with the prosecutor’s
explanation. Further, the prosecutor was not seeking to admit
evidence related to the missing swab and sample, and it was
reasonable for the court to find that the coroner’s practice related to
the swabs was irrelevant to the chain of custody for the sock and
bedspread. Finally, Riser does not require the offering party to negate
all possibility of tampering, only to show with reasonable certainty
there was no tampering. The prosecution met this burden.
Defendant attempts to distinguish this case from our prior
decisions upholding rulings that evidence could be admitted
notwithstanding claims of a flawed chain of custody. (E.g., People v.
Johnsen (2021) 10 Cal.5th 1116, 1161–1162; People v. Wallace (2008)
44 Cal.4th 1032, 1060–1061; People v. Richardson (2008) 43 Cal.4th
959, 1002–1003; Catlin, supra, 26 Cal.4th at pp. 133–136; People v.
Williams (1989) 48 Cal.3d 1112, 1134–1135; Riser, supra, 47 Cal.2d at
pp. 580–581.) Defendant argues that this court has never upheld a
chain of custody challenge in which, like here, the prosecution did not
present testimony from witnesses who knew firsthand how the
evidence at issue was handled and who “provided concrete details
regarding the security and handling of the evidence at issue,
explained how . . . irregularit[ies noted by the defense] came to be, and
showed why the irregularity did not undermine confidence in the
analysis.”

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These decisions do not cast doubt on the trial court’s ruling.
Again, the pivotal question before the trial court was whether it was
“ ‘ “reasonably certain that there was no alteration” ’ ” of the evidence.
(Catlin, supra, 26 Cal.4th at p. 134.) Whether that test has been met
depends on the particularized circumstances of each case. Here, at
the motion in limine hearing, defense counsel accepted the
prosecution’s offer of proof that either Laskowski or Diosi would, if
called, testify that the crime lab and property room were both locked
and secure facilities with restricted access. While defendant would
require more detailed testimony regarding how the evidence was
stored and who might have had access to it over a period of many
years, on the facts of this case such testimony was unnecessary.
We acknowledge that, unlike in Riser and Catlin, here
defendant did present evidence of destroyed or missing evidence by
way of the vaginal swab and blood sample. Importantly, however,
“defendant did not point to any indication of actual tampering” (Riser,
supra, 47 Cal.2d at p. 581) of the evidence at issue. Nor did he explain
how his semen sample may have been placed on the bedspread
sometime after the bedspread was seized. As the Attorney General
observes, defendant provided hair samples and a saliva sample to
investigators when the file was reopened in 1999; he did not provide
them with a semen sample. To the extent defendant argues that the
prosecution nonetheless failed to account for every possible
irregularity in the chain of custody, it did not need to do so. “[W]hen
it is the barest speculation that there was tampering, it is proper to
admit the evidence and let what doubt remains go to its weight.”
(Ibid.)
3. Ineffective assistance of counsel
Defendant contends that counsel rendered ineffective assistance
by failing to raise “their strongest evidence of an irregularity in the

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chain” during the hearing on his motion. He notes that during trial,
counsel argued that bedspread stains appeared for the first time in
2000 and that the degradation of the DNA suggested it did not date
back to 1978, but counsel failed to mention either of these facts during
the chain of custody hearing. He argues that counsel had no tactical
reason for failing to bring these facts to the court’s attention.
“ ‘The two-prong standard governing claims of ineffective
assistance of counsel is well settled. “ ‘ “In assessing claims of
ineffective assistance of trial counsel, we consider whether counsel’s
representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant
suffered prejudice to a reasonable probability, that is, a probability
sufficient to undermine confidence in the outcome.” ’ ” ’ ” (People v.
Barrett (2025) 17 Cal.5th 897, 969 (Barrett).) We presume until
otherwise demonstrated that “ ‘ “counsel’s performance fell within the
wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” ’ ”
(People v. Centeno (2014) 60 Cal.4th 659, 674–675 (Centeno).) “When
the record on direct appeal sheds no light on why counsel failed to act
in the manner challenged, defendant must show that there was ‘ “ ‘no
conceivable tactical purpose’ ” for counsel’s act or omission.’ ” (Id. at
p. 675.)
We have in the past recognized that counsel may have tactical
reasons to not move to exclude evidence on chain-of-custody grounds,
even though gaps or other flaws in that chain may exist. “[A]n
objection on chain of custody grounds may be less productive for
defendant than a decision to permit the prosecutor to establish a
shoddy chain of custody that can be pointed out to the jury in the hope
of giving rise to a reasonable doubt.” (People v. Lucas (1995)
12 Cal.4th 415, 446.)

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Here, defendant cannot establish that counsel had no tactical
reason for not mentioning the bedspread stains during the hearing.
The central theme of the defense’s case was that defendant’s semen
sample was not on the green bedspread in 1978, and that both the
bedspread and the sock had been tampered with. It is possible that
counsel did not want to reveal their strategy to the prosecution before
trial by articulating these arguments in the exclusion motion.
Further, counsel may have decided not to raise the issue because there
were multiple explanations for the difference in degradation between
the sample on the bedsheet and the sample on the bedspread. The
defense’s own expert testified that there might have been different
levels of DNA deposited on the bedspread as compared with the
bedsheet. She also testified on cross-examination that, generally,
tight weave fabrics do not retain as much stain material as a looser
weave, and that synthetic and natural fibers retained stain material
differently.
Additionally, counsel could not definitively establish (through
Diosi, Laskowski, or otherwise) that the bedspread stains were not
present in 1978, only (at most) that no stains had been detected at
that time. As Diosi would later testify at trial, his role was to collect
and identify trace evidence such as hairs and fibers from the seized
evidence while Laskowski identified biological evidence. If Diosi had
seen biological material, he “[m]ost likely” would have told Laskowski
rather than write it in the evidence report himself. His report also
contained notations regarding the bedsheet in Laskowski’s
handwriting, but he, too, could not have conclusively established the
absence of stains on the bedspread when it was obtained by law
enforcement in 1978.
From the record on appeal, we cannot conclude that counsel’s
performance at the evidentiary hearing fell outside “ ‘the wide range
of professional competence and that counsel’s actions and inactions
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[cannot] be explained as a matter of sound trial strategy.’ ” (Centeno,
supra, 60 Cal.4th at pp. 674–675.) Defendant therefore has not
established that counsel rendered deficient performance.40
We further conclude that, even if counsel had rendered deficient
performance in connection with the hearing, there was no prejudice.
(See Barrett, supra, 17 Cal.5th at p. 969.) As noted ante, defendant
has not offered an alternative explanation for how semen matching
his DNA profile appeared on the bedspread. Even if defense counsel
had contended at the pretrial hearing that the bedspread stains were
not present in 1978, in light of the prosecution’s offer of proof and the
limited nature of what could be shown about the bedspread’s condition
back at that time, the DNA evidence that was later obtained from it
would still have been admitted as evidence for the jury’s
consideration. Defendant’s ineffective assistance of counsel claim fails
for this reason, as well.
4. The motion for a new trial
When he was called as a witness at trial, neither the prosecution
nor the defense asked Laskowski whether he had inspected the
bedspread for stains and what, if anything, he saw. Defendant argues
the trial court abused its discretion when it denied his posttrial motion
seeking a new trial insofar as that motion alleged that counsel
provided ineffective assistance in this respect.
“Usually, ‘ineffective assistance [of counsel claims are] more
appropriately decided in a habeas corpus proceeding.’ [Citation.] But
we have also held that a defendant may raise the issue of counsel’s
effectiveness as a basis for a new trial, and, to expedite justice, a trial

40
We further note that defendant’s claim of ineffective assistance
of counsel “is better raised in a habeas corpus proceeding.” (Barrett,
supra, 17 Cal.5th at p. 970.)

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court should rule ‘[i]f the court is able to determine the effectiveness
issue on such motion.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 958.)
“ ‘We review a trial court’s ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.’ [Citations.] ‘ “A trial court’s
ruling on a motion for new trial is so completely within that court’s
discretion that a reviewing court will not disturb the ruling absent a
manifest and unmistakable abuse of that discretion.” ’ ” (People v.
Thompson (2010) 49 Cal.4th 79, 140.)
The trial court did not abuse its discretion. Counsel’s decision
to not question Laskowski regarding whether he observed stains on
the bedspread did not constitute ineffective assistance.
Defendant’s trial counsel addressed his approach to this witness
during the posttrial hearing on defendant’s claim of ineffective
assistance. Counsel stated he did not know whether Laskowski had
looked at the bedspread, but even if he had inspected it, counsel “was
afraid of bringing [Laskowski] back [as a witness] because there was
a big problem.” He explained that Laskowski found and collected
numerous hairs on Woolley’s body, and testing did not rule out the
hairs belonging to someone who was Black. The prosecution “didn’t
pick up on this, and [counsel] was afraid that that would be very
dangerous,” so he chose not to recall Laskowski and ask him questions
that might bring the hairs to the prosecution’s, and subsequently the
jury’s, attention.
Not asking Laskowski at trial whether he had observed any
stains on the bedspread in 1978 was therefore consistent with a
strategy that provided the defense with the ability to argue that the
bedspread had been tampered with, without inviting the admission of
potentially damaging evidence. Counsel made a strategic, tactical
decision not to invite possible questioning regarding hairs found on

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Woolley and instead chose to vigorously argue to the jury that the
bedspread stain was not present in 1978.
Defendant argues on appeal that counsel’s “fear of the hairs was
unreasonable” as they were not forensically linked to him. Although
he disagrees with counsel’s reasoning, that alone does not mean
counsel’s representation “ ‘ “ ‘ “fell below an objective standard of
reasonableness.” ’ ” ’ ” (Barrett, supra, 17 Cal.5th at p. 969.)
Defendant also observes that defense counsel did ask Laskowski
whether any “foreign” hairs had been located in pubic hair combings,
with Laskowski testifying that none had been found. Defendant
argues that this questioning led Laskowski to consult his notes and,
by possibly inviting further scrutiny of these records, belies counsel’s
subsequent explanation to the trial court. We see no conflict. This
questioning regarding the absence of hairs found through a particular
investigatory technique did not necessarily broach the subject that the
defense wanted to avoid.
Defendant’s position that it was unreasonable not to ask
Laskowski about the bedspread is also undermined by Diosi’s
testimony. Even though Diosi identified Laskowski as having
primary responsibility for collecting biological evidence, he provided
testimony that allowed the defense to argue that no bedspread stains
had been recorded by law enforcement back in 1978, even though
stains found on the bedsheet had been. With this testimony in the
record, by the time counsel had to decide whether to recall Laskowski
as a witness counsel could reasonably regard the risks associated with
recalling him as outweighing any potential benefits.
Additionally, we note that the trial court explicitly expressed its
agreement with defense counsel’s decision. After giving counsel an
opportunity to respond to defendant’s allegations during the hearing
on the motion for a new trial, the court stated that it questioned why

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the prosecution did not ask Laskowski about the bedspread, but “I
knew why your defense attorneys didn’t call Laskowski. It was clear
to me. . . . And so I think that your attorneys made a good tactical
decision on not calling Laskowski once Diosi testified Laskowski
would have looked at that, because then they had the evidence in front
of the jury that benefitted . . . their argument and benefitted you. [¶]
And the jurors could have thought, and probably did think, I wonder
why Laskowski didn’t note these stains on the bedspread.”
We conclude from the above that defendant has failed to show
that counsel rendered deficient performance. In any event, defendant
cannot establish prejudice resulting from the failure to question
Laskowski at trial about the bedspread. (See Barrett, supra,
17 Cal.5th at p. 969.) Defendant asserts that Laskowski “could have
testified” that he did not examine the bedspread, or that it was not his
practice to note all stains or that he did not remember, or that he now
recalled that there was a stain, testimony the defense could have
impeached. Defendant’s alleged prejudice is highly speculative.
Again, he has provided no alternative explanation for the presence of
semen with DNA matching his profile on the bedspread, and the jury
had before it Diosi’s testimony to support the argument that the
semen stains had not been on the bedspread back in 1978. While the
prosecutor would note in closing argument rebuttal that the defense
had not recalled Laskowski as a witness to testify regarding the
bedspread, defense counsel reasonably could have concluded that
Diosi’s testimony was sufficient on its own to cast doubt on the
bedspread’s condition in 1978. Finally, even if the court had excluded
DNA results from the bedspread, defendant’s DNA was still
admissible at trial by way of the sock which was found wrapped
around Woolley’s neck.
With neither deficient performance nor prejudice having been
shown, we reject defendant’s claim that the trial court should have
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granted the motion for a new trial due to ineffective assistance of
counsel.
E. Admission of Crime Scene and Autopsy Photographs
Defendant claims that the trial court abused its discretion and
violated his state and federal constitutional rights to due process and
a reliable death verdict in admitting four crime scene and autopsy
photographs depicting the victim. He asserts that the photographs
were irrelevant under Evidence Code section 210 and alternatively
should have been excluded under Evidence Code section 352 as
cumulative of expert and lay testimony and more prejudicial than
probative. We conclude the photographs were properly admitted and
that there was no error under state or federal law.
1. Background
During trial, outside the presence of the jury, defense counsel
objected pursuant to Evidence Code section 352 to admission of four
photographs — People’s exhibit No. 6, photographs 21, 22, and 34; and
People’s exhibit No. 8.41 The last of these photographs is an autopsy
photograph depicting Woolley’s face and upper torso with a sock
around her neck with a red frothy substance coming from her nose
and mouth. Photograph 21 is a crime scene photograph depicting
Woolley’s body on the bed with her head hung over the side, a sock
tied around her neck, and a red frothy substance coming from her nose
and mouth. Photograph 22 is a crime scene photograph depicting a
closeup of Woolley’s head and shoulders and the sock. Photograph 34
is an autopsy photograph depicting a closeup of Woolley’s head, her
neck with the sock removed, and injuries to her neck.

41
For this discussion, we refer to People’s exhibit No. 8 as
“Photograph 8.” And we refer to People’s exhibit No. 6, photographs
21, 22, and 34 as, respectively, “Photograph 21,” “Photograph 22,” and
“Photograph 34.”

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The trial court overruled defense counsel’s objections as follows:
“I think each of those does have its own special relevance, clearly to
show that a sexual assault had occurred by the placement of the
body. . . . [¶] Twenty-two does show a close-up of the sock around the
victim’s neck which, although you can see in 21, more accurately . . .
shows where it, in fact, was located. And it also shows how much it’s
been stretched out, and I think it’s appropriate. [¶] As to 34, given
that the People have to prove premeditation, deliberation, the injury
to the victim’s neck without the sock covering it, I think, is appropriate
and . . . the prejudicial value does not outweigh the probative value.
[¶] In addition, we have voir dired the . . . potential jurors on this, and
so it’s not going to shock them. In fact, to be honest with you, these
don’t look as bad as I thought they were going to look from your
descriptions.” The trial court found that none of the photographs were
unduly prejudicial and that viewed in conjunction with the other three
photographs, Photograph 8 established the chain of custody from the
crime scene to the coroner’s office concerning the sock tied around
Woolley’s neck.
2. Discussion
“ ‘Relevant evidence’ means evidence . . . having any tendency in
reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.” (Evid. Code, § 210.) With respect to
photographic evidence, the jury is entitled to assess whether details
of a murder victim’s body support the prosecution’s theory of the case.
(See People v. Gurule (2002) 28 Cal.4th 557, 624.) “Autopsy
photographs are routinely admitted to establish the nature and
placement of the victim’s wounds and to clarify the testimony of
prosecution witnesses regarding the crime scene and the autopsy,
even if other evidence may serve the same purposes.” (People v.
Howard (2010) 51 Cal.4th 15, 33.) “ ‘The admission of allegedly
gruesome photographs is basically a question of relevance over which

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the trial court has broad discretion. [Citation.] “A trial court’s
decision to admit photographs under Evidence Code section 352 will
be upheld on appeal unless the prejudicial effect of such photographs
clearly outweighs their probative value.” ’ ” (Brooks, supra, 3 Cal.5th
at p. 54.)
Here, defendant’s contention that the photographs should have
been excluded as irrelevant is without merit. Each of the four
photographs was relevant to specific factual and legal issues in this
case. Photograph 21 depicts Woolley’s almost nude upper torso with
her head hanging over the side of her bed; Photograph 22 is a closeup
of Woolley’s head and shoulders depicted in Photograph 21 that shows
some of her neck injury under the sock and a red frothy substance
coming from her nose and mouth; and Photograph 34 is an autopsy
photograph that depicts Woolley’s neck injury, which was partially
covered by the placement of the sock. These photographs were
relevant to several factual questions, including whether Woolley was
sexually assaulted and the manner of the killing. In turn, resolution
of these issues was relevant to the prosecution’s theories that
defendant committed premeditated and deliberate murder and that
Woolley was killed during the commission of a rape or attempted rape.
In this sense, the photographs were relevant to the ultimate
determination of guilt. As for Photograph 8, it was relevant to
establish the chain of custody of the sock from the crime scene to the
coroner’s office because it shows the sock around Woolley’s neck
during the autopsy whereas Photograph 34 depicts Woolley’s neck
without the sock during the autopsy. The trial court did not abuse its
discretion by concluding that each of the photographs was relevant.
Defendant’s contention that the photographs should have been
excluded as unduly prejudicial, cumulative, or both, under Evidence
Code section 352 also fails. We have examined each of the four
photographs and conclude that “any ‘revulsion they induce is
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attributable to the acts done, not to the photographs.’ ” (Brooks,
supra, 3 Cal.5th at p. 55.) “The jury can, and must, be shielded from
depictions that sensationalize an alleged crime, or are unnecessarily
gruesome, but the jury cannot be shielded from an accurate depiction
of the charged crimes that does not unnecessarily play upon the
emotions of the jurors.” (People v. Ramirez (2006) 39 Cal.4th 398, 454;
see also People v. Gonzales (2012) 54 Cal.4th 1234, 1272.) The
photographs at issue did no more than accurately depict the
disturbing nature of the crime, including that Woolley was killed by
ligature strangulation. Further, the photographs were not unduly
cumulative of the testimony of prosecution witnesses. Rather, they
clarified that testimony, including Dr. Hanks’s testimony concerning
Woolley’s neck wound and the location of her body when it was found.
Addressing a more targeted challenge brought by defendant,
contrary to his assertions Photograph 21 was not cumulative of the
subject matter depicted in People’s exhibit No. 6, photographs 19 and
20 (Photographs 19 and 20, respectively), which are essentially
duplicative and depict Woolley’s body only from the knees down with
her left foot entangled in the green bedspread. Defendant asserts that
Photographs 19 and 20 permitted the jury “to know the placement of
[Woolley’s] body, particularly in relation to the green bedspread that
provided important DNA evidence.” But neither Photograph 19 nor
20 depicted the position of Woolley’s almost nude upper torso on the
bed, the sock around her neck, or her head hanging over the bed, facts
relevant to key issues of the case — whether she was sexually
assaulted and the manner in which she was killed.
Defendant’s argument that empirical studies have suggested
that the introduction of autopsy and crime scene photographs at trial
is likely to have a dramatic effect on juries is unpersuasive. Even if
some studies suggest that juries are likely to be affected by such

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photographs, this does not alter the propriety of the trial court’s
analysis under Evidence Code sections 210 and 352.
We conclude the trial court did not abuse its discretion in
admitting the photographs. Consequently, there was no violation of
defendant’s constitutional rights. (See People v. Riggs (2008)
44 Cal.4th 248, 304.)
F. Instruction on Lesser Offenses
The jury was instructed on first degree murder (on theories of
felony murder and deliberate and premeditated murder) and second
degree murder (with malice aforethought but without premeditation
and deliberation). Defendant contends the trial court erred by
instructing the jury with CALJIC No. 8.7l (1996 rev.) (Doubt Whether
First or Second Degree Murder). He asserts that, when considered in
conjunction with CALJIC No. 8.75 (Jury May Return Partial
Verdict — Homicide), the instruction skewed the jury’s deliberations
toward first degree murder and made first degree murder the default
verdict, thereby lowering the prosecution’s burden of proof in violation
of defendant’s constitutional rights to due process, a trial by jury, and
a reliable verdict. Defendant’s contentions are without merit.
CALJIC No. 8.71 (1996 rev.), as given, provided: “If you are
convinced beyond a reasonable doubt and unanimously agree that the
crime of murder has been committed by a defendant, but you
unanimously agree that you have a reasonable doubt whether the
murder was of the first or of the second degree, you must give
defendant the benefit of that doubt and return a verdict fixing the
murder as of the second degree.”
In addition, the trial court gave CALJIC No. 17.40 (Individual
Opinion Required — Duty to Deliberate), which informed the jury as
follows: “The People and the defendant are entitled to the individual
opinion of each juror. [¶] Each of you must consider the evidence for

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the purpose of reaching a verdict if you can do so. [¶] Each of you
must decide the case for yourself, but should do so only after
discussing the evidence and instructions with the other jurors. [¶] Do
not hesitate to change an opinion if you are convinced it is wrong.
However, do not decide any question in a particular way because a
majority of the jurors, or any of them, favor that decision. [¶] Do not
decide any issue in this case by the flip of a coin, or by any other chance
determination.”
The trial court further instructed the jury with CALJIC
No. 8.75,42 which provided in relevant part: “If you are not satisfied
beyond a reasonable doubt that the defendant is guilty of the crime of
first degree murder as charged in Count one and you unanimously so
find, you may convict him of any lesser crime provided you are
satisfied beyond a reasonable doubt that he is guilty of the lesser
crime. [¶] . . . [¶] The court cannot accept a verdict of guilty of second
degree murder as to Count one unless the jury also unanimously finds
and returns a signed verdict form of not guilty as to murder of the first
degree in the same Count.”

42
Defendant contends the “acquittal first” rule embodied in
CALJIC No. 8.75 erroneously precluded the jury’s full consideration
of lesser included offense instructions and coerced verdicts on the
greater charge, in violation of his federal constitutional rights to due
process, jury trial, and the prohibition against cruel and unusual
punishment, and the corresponding California constitutional
provisions. We have repeatedly upheld the propriety of this
instruction against similar challenges. (See, e.g., Brooks, supra,
3 Cal.5th at p. 82; Covarrubias, supra, 1 Cal.5th at p. 906; People v.
Sattiewhite (2014) 59 Cal.4th 446, 479–480; People v. Whisenhunt
(2008) 44 Cal.4th 174, 222–223; People v. Nakahara (2003) 30 Cal.4th
705, 715.) Defendant provides no persuasive reason to reconsider the
issue.

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“ ‘[T]he correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.’ ” (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1220; see Estelle v. McGuire (1991) 502 U.S.
62, 72 [“in reviewing an ambiguous instruction . . . , we inquire
‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution”].)
“ ‘Jurors are presumed to be intelligent, capable of understanding
instructions and applying them to the facts of the case.’ ” (People v.
Lewis (2001) 26 Cal.4th 334, 390.)
In People v. Moore (2011) 51 Cal.4th 386, 411–412, we advised
that “the better practice is not to use the 1996 revised versions of
CALJIC Nos. 8.71 and 8.72 [relating to manslaughter], as the
instructions carry at least some potential for confusing jurors about
the role of their individual judgments in deciding between first and
second degree murder, and between murder and manslaughter. The
references to unanimity in these instructions were presumably added
to convey the principle that the jury as a whole may not return a
verdict for a lesser included offense unless it first reaches an acquittal
on the charged greater offense. [Citation.] But inserting this
language into CALJIC Nos. 8.71 and 8.72, which address the role of
reasonable doubt in choosing between greater and lesser homicide
offenses, was unnecessary, as CALJIC No. 8.75 fully explains that the
jury must unanimously agree to not guilty verdicts on the greater
homicide offenses before the jury as a whole may return verdicts on
the lesser.” We nonetheless found any error in giving these
instructions harmless beyond a reasonable doubt “in light of the jury’s
true findings on the burglary-murder and robbery-murder special
circumstances.” (Id. at p. 412.) We similarly concluded in People v.
Scully (2021) 11 Cal.5th 542 (Scully) that any error in giving the
instruction was harmless beyond a reasonable doubt because the

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jury’s findings “ ‘left no room for the lesser offense[] of second degree
murder.’ ” (Id. at p. 598.)
Here, too, we conclude that any assumed error in giving this
version of CALJIC No. 8.71 was harmless beyond a reasonable doubt
in light of the jury’s true findings on the burglary-murder and rape-
murder special circumstances, both of which required the jury to also
find that the murder was willful, deliberate, and premeditated. “ ‘Any
confusion generated by the challenged instructions, therefore, could
not have affected the jury’s verdicts.’ ” (Scully, supra, 11 Cal.5th at
p. 598.)
G. Instruction on First Degree Premeditated Murder
and Felony Murder
Count one of the information alleged that defendant “did
willfully, unlawfully, deliberately, and with premeditation and malice
aforethought murder Tana [Woolley], a human being, in violation of
[P]enal [C]ode section 187, a felony.” Section 187, subdivision (a),
currently provides, as it did at the time of Woolley’s murder, that
“[m]urder is the unlawful killing of a human being, or a fetus, with
malice aforethought.” At the time of the murder, first and second
degree murder were distinguished under section 189, as follows: “All
murder which is perpetrated by means of a destructive device or
explosive, poison, lying in wait, torture, or by any other kind of willful,
deliberate, and premeditated killing, or which is committed in the
perpetration of, or attempt to perpetrate, arson, rape, robbery,
burglary, mayhem, or any act punishable under Section 288, is
murder of the first degree; and all other kinds of murders are of the
second degree.” (§ 189, as amended by Stats. 1970, ch. 771, § 3,
pp. 1456–1457.)
Defendant contends that following the guilt phase of trial, the
trial court erroneously instructed the jury on first degree

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premeditated murder and on felony murder because the information
assertedly charged him with only second degree malice murder under
section 187, not first degree murder, and did not allege the facts
necessary to establish first degree murder. In other words, defendant
maintains, section 187, subdivision (a), which provides “[m]urder is
the unlawful killing of a human being, or a fetus, with malice
aforethought,” defines only second degree malice murder.
“ ‘As defendant acknowledges, . . . we have consistently rejected
such arguments and have concluded that a defendant may be
convicted of first degree murder even though the indictment or
information charges only murder with malice in violation of section
187. (People v. Whisenhunt [(2008)] 44 Cal.4th [174,] 222 . . . ; People
v. Hughes [(2002)] 27 Cal.4th [287,] 368–370 . . . ; People v. Witt (1915)
170 Cal. 104, 107–108.)’ ” (People v. Tate (2010) 49 Cal.4th 635, 697
(Tate).) Defendant provides no reason to reconsider those decisions.
In derivative fashion, defendant contends his constitutional
rights to due process and trial by jury were violated under Apprendi
v. New Jersey (2000) 530 U.S. 466, because the jury was permitted to
convict him of first degree premeditated murder and felony murder,
which he characterizes as uncharged crimes. Defendant’s “ ‘reliance
on Apprendi, however, is misplaced, because he was not convicted
of . . . “uncharged crime[s].” ’ ” (Tate, supra, 49 Cal.4th at p. 697.)
IV. PENALTY PHASE ISSUES
A. Admission of Records of Defendant’s 1971
Misdemeanor Conviction and Related Jury
Instructions
At the penalty phase, over defense counsel’s objections, the trial
court admitted a certified copy of defendant’s 1971 conviction for
“assault with intent to commit great bodily injury” (former § 245) as a
factor in aggravation (§ 190.3, factor (b)). Defendant contends the

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trial court prejudicially erred in admitting the evidence and in
instructing the jury it could consider his prior misdemeanor conviction
as a factor in aggravation under section 190.3, factor (b). Further,
defendant asserts admission of the conviction violated his Sixth
Amendment right to confrontation under Crawford, supra, 541 U.S.
at page 68. We conclude no prejudicial error occurred.
Preliminarily, we note that the version of section 190.3,
factor (b), in effect at the time of the capital murder in this case was
nearly identical to the version enacted in 1978, which remains in effect
as enacted (added by Prop. 7, § 8, as approved by voters, Gen. Elec.
(Nov. 7, 1978), eff. Nov. 8, 1978).
1. Background
Outside the presence of the jury and over defense objections on
hearsay and federal constitutional grounds, the prosecutor sought
admission under Evidence Code section 1280 of a certified copy of a
docket from the Los Angeles County Superior Court dated April 5,
1971, documenting defendant’s conviction for assault with intent to
commit great bodily injury under section 245. The prosecutor asserted
the record was admissible under section 190.3, factor (b) as evidence
of criminal activity by defendant that involved the use or attempted
use of force or violence, regardless of whether defendant was convicted
of a misdemeanor or felony. The trial court observed that the docket
indicated defendant was charged with a felony but given a
misdemeanor sentence. It found the conviction was a misdemeanor
and granted the prosecutor’s motion to admit the record.
Subsequently, the trial court instructed the jury under CALJIC
Nos. 8.86 and 8.87. CALJIC No. 8.86 provided, in relevant part:
“Evidence has been introduced for the purpose of showing that the
defendant has been convicted of the crime of misdemeanor assault by
means of force likely to inflict great bodily injury prior to the offense

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of murder in the first degree of which he has been found guilty in this
case. [¶] Before you may consider the alleged crime as an aggravating
circumstance in this case, you must first be satisfied beyond a
reasonable doubt that the defendant was, in fact, convicted of the prior
crime.”
CALJIC No. 8.87 provided: “Evidence has been introduced for
the purpose of showing that the defendant has committed criminal
acts which involved the express or implied use of force or violence or
the threat of force or violence. Before a juror may consider any
criminal acts as an aggravating circumstance in this case, a juror
must first be satisfied beyond a reasonable doubt that the defendant
did in fact commit the criminal acts — act or acts. [¶] It is not
necessary for all jurors to agree. If any juror is convinced beyond a
reasonable doubt that the criminal activity occurred, that juror
may . . . consider that activity as a factor in aggravation. If a juror is
not so convinced, that juror must not consider that evidence for any
purpose.”
2. Discussion
A trial court’s decision to admit other crimes evidence pursuant
to section 190.3, factor (b) at the penalty phase is reviewed for abuse
of discretion. (People v. Delgado (2017) 2 Cal.5th 544, 582.) “ ‘The
trial court is vested with wide discretion in determining the relevance
of evidence,’ although a court ‘has no discretion to admit irrelevant
evidence.’ (People v. Babbitt (1988) 45 Cal.3d 660, 681.)” (People v.
Alexander (2010) 49 Cal.4th 846, 904.) Relevant evidence is evidence
“having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” (Evid. Code,
§ 210; see also id., § 350 [“No evidence is admissible except relevant
evidence”].)

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At the time Woolley was killed, section 190.3 provided no
authority for a jury’s consideration of the fact of a defendant’s prior
conviction, whether a felony or misdemeanor, in determining the
appropriate penalty. (See former § 190.3, added by Stats. 1977,
ch. 316, § 11, pp. 1258–1259; cf. § 190.3, factor (c) [the trier of fact may
consider “[t]he presence or absence of any prior felony conviction”].)
The former statute, however, did permit the jury to consider under
former section 190.3, factor (b) “[t]he presence or absence of criminal
activity by the defendant which involved the use or attempted use of
force or violence or the express or implied threat to use force or
violence.”43
In this case, based on the trial court’s ruling in admitting the
certified copy of defendant’s 1971 misdemeanor conviction for assault
with intent to commit great bodily injury and the related jury
instructions it gave, the trial court apparently contemplated that the
jury could consider both (1) the fact of the conviction, and (2) the act
of committing a crime involving force or violence. This was error
under state law because, as stated, the jury was not authorized to
consider the fact of defendant’s prior conviction when determining the
appropriate penalty. We conclude, however, that the error was
harmless.
In determining whether the erroneous admission of the record
of defendant’s misdemeanor conviction requires reversal, we evaluate
“whether there is a reasonable possibility that had the erroneously
admitted evidence been excluded, the jury would have voted for life
without [possibility of] parole instead of death.” (People v. Penunuri

43
This same language appears as section 190.3, factor (b) in the
current version of section 190.3, enacted in 1978. (See § 190.3, added
by Prop. 7, § 8, as approved by voters, Gen. Elec. (Nov. 7, 1978), eff.
Nov. 8, 1978.)

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(2018) 5 Cal.5th 126, 160; see People v. Cowan (2010) 50 Cal.4th 401,
491 (Cowan) [the reasonable possibility standard used to assess the
effect of state law error at the penalty phase is “ ‘the same, in
substance and effect,’ as the harmless-beyond-a-reasonable-doubt
standard of Chapman v. California, supra, 386 U.S. at page 24” for
assessing the effect of federal constitutional error].)
Here, the prosecution presented evidence of defendant’s five
assaults and rapes of four other women. The circumstances of the
capital murder, which the jury must consider under section 190.3,
factor (a), indicated that defendant snuck into Woolley’s apartment at
nighttime and hid there before he raped or attempted to rape her and
violently strangled her for minutes with her own sock, crushing a
necklace into her skin and causing hemorrhaging of the thyroid gland
and muscles. When defendant inflicted the neck wound, “there were
certainly seconds to minutes that . . . [Woolley] was alive and the
blood was still pumping.” In light of this evidence, the mere fact of
defendant’s 1971 misdemeanor conviction, without any detail
regarding the conduct underlying the conviction, could not have had
any impact in the jury’s penalty calculus.
Defendant asserts that during penalty phase deliberations the
jury speculated as to the underlying factual basis of his prior assault
conviction. Any uncertainty about what the conviction involved,
however, does not alter the fact that it is not reasonably possible the
conviction affected the penalty verdict. Each juror swore to decide the
penalty question “according only to the evidence presented . . . and to
the instructions of the Court.” We presume the jurors followed the
court’s instructions to decide the penalty according only to the
evidence presented, rather than speculating about the conviction in a

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manner that might have amplified its significance. (See People v.
Tarantino (1955) 45 Cal.2d 590, 597.)44
We need not consider defendant’s derivative Crawford claim
that the admission of defendant’s 1971 misdemeanor assault
conviction also violated his right to confrontation under the Sixth
Amendment. For the same reasons the erroneous admission of the
certified copy of the assault conviction under state law was harmless
beyond a reasonable doubt, any possible federal constitutional error
under Crawford also was harmless. (Cowan, supra, 50 Cal.4th at
p. 491.)
B. Victim Impact Evidence and Related Instructions
“ ‘In a capital trial, evidence showing the direct impact of the
defendant’s acts on the victims’ friends and family is not barred by the
Eighth or Fourteenth Amendments to the federal Constitution.
(Payne v. Tennessee (1991) 501 U.S. 808, 825–827 . . . .) Under
California law, victim impact evidence is admissible at the penalty
phase under section 190.3, factor (a), as a circumstance of the crime,
provided the evidence is not so inflammatory as to elicit from the jury
an irrational or emotional response untethered to the facts of the
case.’ ” (Chism, supra, 58 Cal.4th at p. 1326.) In People v. Edwards
(1991) 54 Cal.3d 787, 835, we held that “section 190.3, factor (a),
regarding the circumstances of the capital crime, authorizes ‘evidence
and argument on the specific harm caused by the defendant, including
the impact on the family of the victim.’ ” (People v. Johnson (2016)
62 Cal.4th 600, 646.)
Defendant argues that, although binding on this court, the high
court’s decision in Payne was wrongly decided and the Eighth

44
Furthermore, the prosecutor did not mention the misdemeanor
during closing argument.

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Amendment, properly construed, precludes admission of victim
impact evidence. He asserts that he “presents this claim on appeal in
order to exhaust his state remedies and, if necessary, assert the claim
in a federal petition for writ of habeas corpus and obtain the benefit
of any new rule of law on this question by the United States Supreme
Court. (See 28 U.S.C. §§ 2254(b)(1), 2254(d)(I).)” “We have no
authority to overturn United States Supreme Court decisions, and
defendant proffers no persuasive reason for us to overrule our own
decisions regarding victim-impact evidence.” (People v. Weaver (2012)
53 Cal.4th 1056, 1086 [discussing Payne]; People v. Bradley (1969)
1 Cal.3d 80, 86 [our courts are bound by the United States Supreme
Court decisions interpreting the federal Constitution].) We therefore
reject defendant’s contentions as contrary to settled law.
Defendant also advances a narrower argument regarding the
jury’s consideration of victim impact evidence. During a conference
on the penalty phase instructions, the trial court indicated that it
would modify the language of CALJIC No. 2.01 (Sufficiency of
Circumstantial Evidence — Generally) that had been given at the
guilt phase trial regarding defendant’s guilt for any crimes based on
circumstantial evidence. The purpose of the modification was to
clarify that the instruction applied in the penalty phase to
circumstantial evidence offered to prove that defendant committed
“one or more criminal acts.” Defense counsel requested the
instruction be further modified to include language that “if something
can be seen two ways, then the jurors should adopt that which points
in his favor as opposed to pointing against [him].” Counsel then
specifically suggested that the trial court’s modification should not be
limited to evidence of criminal acts under Evidence Code section 1108
and requested the instruction be modified further to refer to all
circumstantial evidence offered at the penalty phase: “[i]f
circumstantial evidence could be viewed . . . two reasonable ways, one

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in mitigation and one in aggravation, you should adopt that which
points to mitigation and reject that which points to aggravation.” The
trial court declined the request and instead instructed as it had
proposed.
Defendant contends the instruction should have been further
modified to inform the jury that it applied to any other circumstantial
evidence offered in the penalty phase, including circumstantial
evidence offered to show victim impact. In support, he argues that “if
circumstantial evidence is presented to show a particular harm, the
testimony should be evaluated under standard evidentiary principles:
aggravating evidence of victim impact should not be considered unless
jurors find that it is consistent with the theory that a defendant
caused the harm, the underlying facts are proved beyond a reasonable
doubt, and the aggravation cannot be reconciled with any other
conclusion.” The People argue the claim is forfeited because
defendant did not seek modification of the instruction to include this
specific language. In general, “[a] party may not complain on appeal
that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d
991, 1024.)
The question of forfeiture is close. Although defense counsel did
not request the instruction be modified to include a specific reference
to circumstantial evidence of victim impact, he did indicate that the
modification should reach beyond other criminal acts evidence under
Evidence Code section 1108 to include a general reference to
“circumstantial evidence.”
Yet we do not need to decide whether defendant’s failure to
request a modification to specifically add “circumstantial evidence of
victim impact” forfeits any claim of error because the claim fails on

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the merits. Woolley’s family members primarily gave direct testimony
about the impact Woolley’s murder had on them personally, and thus,
“the instructions [on circumstantial evidence] were not called for.”
(People v. Boyce (2014) 59 Cal.4th 672, 716 [the trial court was not
required to instruct on circumstantial evidence at the penalty phase
when, among other things, “[s]urvivors gave direct victim impact
testimony”].)
Furthermore, “ ‘[w]e previously have explained that the
standard CALJIC penalty phase instructions “are adequate to inform
the jurors of their sentencing responsibilities in compliance with
federal and state constitutional standards.” ’ ” (People v. Hartsch
(2010) 49 Cal.4th 472, 511.) “[T]he standard instructions found in
CALJIC Nos. 8.85 and 8.88, as given by the trial court, adequately
conveyed to the jurors the proper consideration and use of victim
impact evidence.” (Scully, supra, 11 Cal.5th at p. 605.)
C. Limitation on Mitigating Evidence
Defendant contends the trial court prevented him from
presenting mitigating evidence about his upbringing in an
environment of domestic violence. He asserts that erroneous
exclusion of such evidence violated his constitutional rights to a
reliable verdict and due process of law under the Eighth and
Fourteenth Amendments to the United States Constitution.
“It is well established that at the penalty phase of a capital case,
the fact finder may not be precluded from considering any relevant
mitigating evidence. (Skipper v. South Carolina (1986) 476 U.S. 1,
4 . . . ; Eddings v. Oklahoma (1982) 455 U.S. 104, 114 . . . .) The
Eighth Amendment to the federal Constitution requires that a capital
jury be permitted to consider in mitigation ‘ “any aspect of a
defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than

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death.” ’ ” (People v. Salcido (2008) 44 Cal.4th 93, 161.) “ ‘[N]either
this court nor the high court[, however,] has suggested that the rule
allowing all relevant mitigating evidence has abrogated the California
Evidence Code.’ [Citation.] ‘As a general matter, the ordinary rules
of evidence do not impermissibly infringe on the accused’s right to
present a defense.’ ” (People v. Phillips (2000) 22 Cal.4th 226, 238
(Phillips).) While “[e]xclusion of hearsay testimony at a penalty phase
may violate a defendant’s due process rights if the excluded testimony
is highly relevant to an issue critical to punishment and substantial
reasons exist to assume the evidence is reliable” (ibid.), “if the
exculpatory value of the excluded evidence is tangential, or
cumulative of other evidence admitted at trial, exclusion of the
evidence does not deny the accused due process of law” (People v.
Smithey (1999) 20 Cal.4th 936, 996; see also Green v. Georgia (1979)
442 U.S. 95, 97). A trial court’s decision to admit or exclude evidence
in this context is reviewed for abuse of discretion. (People v. Williams
(2006) 40 Cal.4th 287, 317.)
We conclude the trial court did not abuse its discretion in
limiting defendant’s mitigating evidence.
1. Statements made by defendant’s brother, Leonard
Hazlett
Defense counsel filed a motion seeking admission of certain
statements made by defendant’s brother Leonard Hazlett, who died
before trial but had spoken to his wife, Patricia Hazlett, and
investigators about the violence in the home in which he and
defendant were raised. Defense counsel represented that Leonard
stated: (1) defendant observed an incident in which their mother used
a can opener to poke out their stepfather’s eye, which “broke like an
egg”; (2) he and defendant witnessed violent fights between their
mother and stepfather and an assault of an aunt by an uncle who
“chased their aunt into [a] room, knocked her to the floor and with a

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knife, shredded her face”; and (3) he and defendant felt helpless to
protect their mother and this shamed defendant because he did not
help her.
Counsel sought admission of Leonard’s statements “on the
grounds that the witness is unavailable and that admission of the
statements are necessary to ensure the [d]efendant’s rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution and Article I, sections 1, 7, 15 and 17 of the
Constitution of California.”
After considering argument from counsel at the hearing on the
defense motion, the trial court denied the motion, ruling the
statements were “pure hearsay” and inadmissible. It reasoned that
admission of Leonard’s hearsay statement would put the prosecution
at a disadvantage because the prosecutor would have no opportunity
to cross-examine Leonard about the specific contents of his
statements. In addition, the trial court concluded, and defense
counsel conceded, certain statements by Leonard were inadmissible
because they purported to relate how defendant felt about certain
events during childhood. Impliedly, the trial court ruled that even if
Leonard were alive and available to testify, the statements would be
inadmissible on hearsay grounds (Evid. Code, § 1200) and for lack of
foundation (id., § 702). Finally, the trial court otherwise found the
subject of defendant’s childhood to be relevant and informed trial
counsel that “defendant can testify about his background. And if he
testifies about that, his testimony could be limited just to his
background, his growing up years.” Defendant elected not to testify.
On appeal, defendant argues the proffered evidence was critical
to establish the shame defendant felt for not being able to help his
mother and the extent of the domestic violence in defendant’s
childhood home. He contends that Leonard’s statements were reliable

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because he made them to his wife, Patricia, and he notes that the
prosecutor would have had an opportunity to cross-examine her.
The trial court properly ruled that the proffered extrajudicial
statements to defense investigators and to Patricia were inadmissible
hearsay as out-of-court statements offered to prove the incidents
occurred. (Evid. Code, § 1200, subds. (a) [hearsay is “evidence of a
statement that was made other than by a witness while testifying at
the hearing and that is offered to prove the truth of the matter
stated”], (b) [unless otherwise provided by law, hearsay evidence is
inadmissible].) Although, as noted, the exclusion of hearsay
testimony at the penalty phase may be improper if the testimony is
highly relevant and substantial reasons exist to assume the evidence
is reliable (Phillips, supra, 22 Cal.4th at p. 238), neither consideration
exists here. There is no substantial reason to believe that Leonard’s
out-of-court statements, made to investigators after defendant’s
arrest in this capital case, were particularly reliable. Defendant
asserts that the prosecutor could have cross-examined Leonard’s wife
about the statements Leonard made to her, but the circumstances
nonetheless foreclosed any opportunity for the prosecutor to impeach
or otherwise directly test Leonard’s credibility. (See People v. Wright
(1990) 52 Cal.3d 367, 431 [trial court properly excluded 10-year-old
psychiatric report offered in mitigation when the circumstances
foreclosed any opportunity for the People to impeach or otherwise test
the validity of the psychiatrist’s conclusions].) Furthermore, as the
trial court ruled, any statements by Leonard purporting to relate
defendant’s shame or other feelings about the pervasive domestic
violence he experienced growing up were inadmissible as lacking
foundation. (Evid. Code, § 702.) Finally, nothing prevented defendant
from taking the stand to testify about the subject of the proffered
testimony. We conclude that the trial court did not abuse its
discretion in excluding this evidence.

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2. Statements made by defendant’s siblings
Defendant contends the trial court abused its discretion in
excluding testimony from his siblings regarding how they were
affected by the domestic violence in their household in which they all
grew up. The trial court excluded the testimony after finding it did
not relate directly to what defendant experienced. Specifically,
defendant argues the trial court erred in sustaining the prosecutor’s
objections to the following testimony: (1) Dan’s testimony about his
father (defendant’s stepfather) and an incident between the two that
occurred in the kitchen, because Dan could not recall if defendant was
present; (2) Kevin’s testimony that he considered their father to be
evil based on incidents he, but not defendant, had observed;
(3) Kevin’s testimony about how he personally experienced his father’s
violence; (4) Kevin’s testimony about the circumstances that led him
to leave his home at age 15; (5) Kevin’s testimony about whether he
had verbally or emotionally abused his own children or committed
crimes involving domestic violence; (6) David’s testimony about his
own problems with alcohol and drug addiction; and (7) David’s
testimony concerning his (and defendant’s) mother’s use of
prescription pills to address pain.
Defendant argues the excluded testimony was relevant to show
that any problem defendant had with rage and violence “was not
simply because he was evil.” He asserts the evidence additionally
would have mitigated the capital crime by showing that he was able
to stop the cycle of domestic violence in his own home by not
perpetuating it upon his children.
We conclude none of the trial court’s rulings constituted an
abuse of discretion. Beginning with the first two rulings described
above, there was no foundation laid that defendant observed or was
involved in the incidents or sentiments described by Dan (kitchen
incident with defendant’s stepfather), or Kevin (Kevin’s feelings that
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his father was evil). (See People v. Loker (2008) 44 Cal.4th 691, 730
(Loker) [the trial court did not abuse its discretion in excluding
testimony from the defendant’s half brother about the environment he
grew up in when “no foundation had been laid that [the half brother]
was in the [trailer] park at the same time as [the] defendant, or that
he had a relationship with [the] defendant as they were growing up”].)
Defendant speculates that “the collateral impact” of these incidents
affected everyone in the house. Yet under this theory, this evidence
was tangential at best. “Exclusion of such evidence does not deny a
defendant due process of law.” (Ibid.)
The remaining five challenged rulings identified above —
regarding Kevin’s specific experiences with his father’s violence and
its impact on him as a teenager and an adult, David’s personal
problems with substance abuse, and defendant’s mother’s abuse of
prescription pills — similarly involved personal problems of
defendant’s family members with the domestic violence each
experienced in the home and its residual effects, but with no showing
of defendant’s involvement with or awareness of their experiences and
difficulties. Even assuming the reliability of the excluded evidence,
defendant fails to demonstrate how this evidence bore upon
defendant’s character or any critical issue before the penalty jury.
(See People v. Stayner (2026) 19 Cal.5th 395, 545 [“ ‘the background of
the defendant’s family is material if, and to the extent that, it relates
to the background of defendant himself’; it ‘is of no consequence in and
of itself’ ”].) Moreover, the jury heard extensive testimony about the
beatings defendant suffered at the hands of his stepfather and the
recurrent domestic violence between his mother and stepfather. The
jury had before it a detailed portrait of defendant’s upbringing even
without the challenged evidence. There was no abuse of discretion in
excluding the additional testimony implicated by this claim.

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3. Testimony of Dr. Minagawa concerning statements by
Kevin and David
Defendant contends the trial court erroneously limited the
testimony of his penalty phase expert, Dr. Minagawa. On direct
examination, Dr. Minagawa testified regarding the general effects of
exposure to domestic violence on children and characterized
defendant’s family as “a textbook case of domestic violence gone
completely amok.” Dr. Minagawa opined that based on his research,
clinical experience, and interviews with defendant’s family members,
defendant’s “behaviors, symptoms, [and] outcomes” were consistent
with what would be expected from a child raised in an environment of
domestic violence. Defense counsel then sought to elicit testimony
from Dr. Minagawa about whether in reaching his opinion he
considered statements by defendant’s brothers David and Kevin
concerning their “problems with drugs” and Kevin’s personal
problems with domestic violence involving his own children. The
prosecutor objected that the matter was irrelevant.
Outside the presence of the jury, the trial court ruled as follows:
“Clearly, the defendant’s background and his family is always
admissible. There’s been no objection to that. It’s the specifics of
what’s happened with his siblings. [¶] . . . [¶] In this particular case,
at this point in time, we have evidence that the siblings, four, five of
the brothers, have been in prison; we have evidence that they’ve
committed various crimes. [¶] I’ll allow the doctor to talk very
generally about that, but I don’t want [him] to get into specifics.” The
court continued, “If the brother had a particular problem with his
daughter, step-daughter or wife, we don’t need to get into particulars.
Very broad. The siblings had problems; it’s indicative of a household
full of family violence. Most of that evidence is already in anyway.
Very broad.”

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On appeal, defendant argues that the various facts
Dr. Minagawa relied on concerning defendant’s siblings and the
problems that they faced as a result of exposure to domestic violence
recurrent in the home were relevant to corroborate and support the
expert’s conclusions about domestic violence, including that
defendant’s family was a “textbook case” of domestic violence, and
should have been admitted. This claim fails.
As previously described, the jury had heard from many of
defendant’s family members who testified extensively about domestic
violence in their home. Dr. Minagawa testified concerning the impact
of exposure to domestic violence on children, generally, and the
specific impact domestic violence in their home had on defendant. The
trial court permitted Dr. Minagawa to testify in general about the
domestic violence experienced by defendant’s family members in the
household in which defendant grew up, but excluded testimony
related to specific incidents experienced by any individual family
member if it could not be shown that defendant also experienced that
same incident. The trial court did not err in drawing this line. (Loker,
supra, 44 Cal.4th at p. 731.) Although defendant argues that the
excluded testimony would have enabled the expert to better explain
to jurors what defendant overcame to stop the violence within his own
family, here again we conclude that the evidence that was admitted
at trial was adequate to show defendant’s difficult upbringing, against
which his current familial relations could be juxtaposed.
Finally, defendant argues that his inability to offer evidence
that some of defendant’s other family members experienced problems
later in life consistent with the effects of domestic violence permitted
the prosecutor to argue to the jury that some of defendant’s siblings
enjoyed successful careers despite their violent childhoods, with the
prosecutor referring to evidence of domestic violence as “an excuse.”
The jury, however, “would reasonably infer that a child who was
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physically abused . . . would have suffered from this experience”
(Loker, supra, 44 Cal.4th at p. 730), even without hearing of the
problems encountered by some of defendant’s other family members.
For these reasons, exclusion of the expert’s testimony was
neither an abuse of the trial court’s discretion nor a denial of
defendant’s right to due process.
D. Instruction Concerning Sympathy for Defendant’s
Family
Defendant contends that in response to a written question by
the jury, the trial court erroneously instructed the jury that it could
not consider sympathy for his family in determining the appropriate
penalty. He asserts the instruction violated his federal and state
constitutional rights to a properly instructed jury, due process, and a
reliable penalty verdict. (U.S. Const., 6th, 8th, & 14th Amends.; Cal.
Const., art. I, §§ 7, 16, 17.) We conclude the trial court did not err,
and that any assumed error was harmless.
1. Background
During closing argument, the prosecutor informed the jurors
that “[they] will be instructed that . . . while you may consider
sympathy for the defendant, you may not consider sympathy for his
family.” Subsequently, during the penalty phase deliberations, the
jury sent the trial court a note asking if it could consider sympathy for
defendant’s family in determining the appropriate penalty. At a
hearing outside the presence of the jury, the trial court acknowledged
that it did not include language in the standard instruction on the
factors in aggravation and mitigation (CALJIC No. 8.85) that the jury
was not to consider sympathy for the family. The court then cited
People v. Ochoa (1998) 19 Cal.4th 353, 456 (Ochoa) for the proposition
that the 1978 version of section 190.3 precludes the jury’s
consideration of sympathy for a defendant’s family as a matter

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relevant to mitigation. The court asked the parties whether that
holding reflected the earlier law that must be applied in the present
case. The prosecutor argued that the 1977 version of section 190.3,
applicable here, was essentially the same as the 1978 version on this
point and urged the trial court to instruct the jury that it could not
consider sympathy for defendant’s family. Defense counsel countered
that the 1977 version of section 190.3 was more flexible and permitted
consideration of sympathy for a defendant’s family and that Ochoa
was not authority concerning the 1977 law.
Based on the holding in Ochoa, the trial court answered the
jury’s note with the following instruction: “While you are correct that
you can consider sympathy for the defendant, sympathy for the family
of the defendant is not a matter which you can consider in mitigation.
Evidence, if any, of the impact of an execution on family members
should be disregarded unless it illuminates some positive quality of
the defendant’s background or character.”
2. Legal Principles
In Lockett v. Ohio (1978) 438 U.S. 586, 604, the United States
Supreme Court concluded that “the Eighth and Fourteenth
Amendments require that the sentencer . . . not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.” (Fn.
omitted.)
“State law requires the jury to take into account matters
relevant to the penalty determination. ‘[S]ection 190.3 [of the 1978
law] provides that, with narrow exceptions, “evidence may be
presented by both the people and the defendant as to any matter
relevant to aggravation, mitigation, and sentence including, but not
limited to” the circumstances of the current offense, prior felony

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convictions or violent crimes, “and the defendant’s character,
background, history, mental condition and physical condition.”
(Italics added.) In deciding whether the aggravating circumstances
outweigh the mitigating, the jury must consider, among other things,
“all of the evidence” and “the arguments of counsel.” ’ ” (Ochoa, supra,
19 Cal.4th at p. 455.) We have held that, under the current death
penalty statute, an instruction inviting a jury’s consideration of
sympathy for the defendant’s family in deciding penalty “would not
have properly stated the law, which requires an individualized
assessment of the defendant’s background, record, and character, and
the nature of the crimes committed, both as a matter of state law
[citations] and as a federal constitutional requirement.” (Id. at
p. 456.) In contrast, a jury may consider evidence of a family
member’s love for a defendant and desire that they live as indirect
evidence of the defendant’s character. (Ibid.; People v. Bennett (2009)
45 Cal.4th 577, 601; People v. Sanders (1995) 11 Cal.4th 475, 546
(Sanders) [although “the impact on the victim’s family is arguably
relevant to show the specific harm caused by the crime and the
blameworthiness of the defendant — factors the United States
Supreme Court has found relevant to the appropriate punishment —
the impact on the defendant’s family is not comparably relevant to
mitigate the specific harm of the crime or its blameworthiness”].)
“ ‘[W]hat is ultimately relevant is a defendant’s background and
character — not the distress of [the defendant’s] family.’ ” (People v.
Bennett, at p. 602.)
3. Discussion
Defendant argues that jurors were free to consider any
sympathy they had for his family, and the trial court erred by
prohibiting such consideration. He asserts our holding in Ochoa does
not apply here because the language of the 1977 version of the death

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penalty law was more flexible regarding the evidence a jury could
consider in deciding on the appropriate penalty. We reject this claim.
The 1977 law, as relevant here, provided that, subject to certain
exceptions identified later in the statute, “In the proceedings on the
question of penalty, evidence may be presented by both the people and
the defendant as to any matter relevant to aggravation, mitigation,
and sentence, including, but not limited to, the nature and
circumstances of the present offense, the presence or absence of other
criminal activity by the defendant which involved the use or
attempted use of force or violence or which involved the expressed or
implied threat to use force or violence, and the defendant’s character,
background, history, mental condition and physical condition.”
(Former § 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1258–1259.)
After listing a series of factors to be accounted for “if relevant” (former
§ 190.3, added by Stats. 1977, ch. 316, § 11, p. 1259),45 the 1977

45
These factors consisted of: “(a) The circumstances of the crime
of which the defendant was convicted in the present proceeding and
the existence of any special circumstances found to be true pursuant
to Section 190.1. [¶] (b) The presence or absence of criminal activity
by the defendant which involved the use or attempted use of force or
violence or the expressed or implied threat to use force or violence. [¶]
(c) Whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance. [¶]
(d) Whether or not the victim was a participant in the defendant’s
homicidal conduct or consented to the homicidal act. [¶] (e) Whether
or not the offense was committed under circumstances which the
defendant reasonably believed to be a moral justification or
extenuation for his conduct. [¶] (f) Whether or not the defendant
acted under extreme duress or under the substantial domination of
another person. [¶] (g) Whether or not at the time of the offense the
capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was impaired as
a result of mental disease or the affects [sic] of intoxication. [¶]
(h) The age of the defendant at the time of the crime. [¶] (i) Whether

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statute further specified that “[a]fter having heard and received all of
the evidence, the trier of fact shall consider, take into account and be
guided by the aggravating and mitigating circumstances referred to
in this section, and shall determine whether the penalty shall be death
or life imprisonment without the possibility of parole” (former § 190.3,
added by Stats. 1977, ch. 316, § 11, p. 1260).
By comparison, the 1978 law provides, after listing the factors
to be taken into account if relevant, “After having heard and received
all of the evidence, and after having heard and considered the
arguments of counsel, the trier of fact shall consider, take into account
and be guided by the aggravating and mitigating circumstances
referred to in this section, and shall impose a sentence of death if the
trier of fact concludes that the aggravating circumstances outweigh
the mitigating circumstances. If the trier of fact determines that the
mitigating circumstances outweigh the aggravating circumstances
the trier of fact shall impose a sentence of confinement in state prison
for a term of life without the possibility of parole.” (§ 190.3.)
In arguing that the trial court erred under the 1977 statute,
defendant relies on People v. Boyd (1985) 38 Cal.3d 762. There, we
determined “whether under the 1978 initiative the prosecution can
present evidence at the penalty phase which is not relevant to any of
the specific aggravating or mitigating factors listed in the 1978 law.”
(Id. at p. 772.) In answering this question in the negative, Boyd
contrasted the 1977 and 1978 versions of section 190.3: “Under the
1977 version of section 190.3, the jury must ‘consider, take into

or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor.
[¶] (j) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.” (Former
§ 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1259–1260.)

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account and be guided by the aggravating and mitigating
circumstances’ enumerated in that section. The statute, however,
provided no further guidance or limitation on the jury’s sentencing
discretion. In the absence of such a limitation, the jury was free, after
considering the listed aggravating and mitigating factors, to consider
any other matter it thought relevant to the penalty determination. The
1978 initiative, by contrast, provided specifically that the jury ‘shall
impose a sentence of death if [it] concludes that the aggravating
circumstances outweigh the mitigating circumstances. If [it]
determines that the mitigating circumstances outweigh the
aggravating circumstances [it] shall impose a sentence of confinement
in state prison for a term of life without the possibility of parole.’
[Citations.] By thus requiring the jury to decide the appropriateness
of the death penalty by a process of weighing the specific factors listed
in the statute, the initiative necessarily implied that matters not
within the statutory list are not entitled to any weight in the penalty
determination.” (Id. at p. 773, italics added.)
Defendant’s reliance on Boyd is misplaced. While the evidence
permitted under the 1977 law may not have been “limited to matters
relevant to the specified aggravating or mitigating factors” (People v.
Murtishaw (1981) 29 Cal.3d 733, 773), such evidence still had to be
“relevant to aggravation, mitigation, and sentence” generally (former
§ 190.3, added by Stats. 1977, ch. 316, § 11, p. 1259; cf. Murtishaw, at
p. 774 [determining, under the 1977 death penalty law, that expert
testimony offered by the prosecution at the penalty phase regarding a
defendant’s future dangerousness involved undue prejudice that
substantially outweighed its probative value and should not have
been admitted over defendant’s objection]). This relevance
requirement conveys a similar restriction on what the trier of fact
could properly consider under the 1977 law in determining the

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appropriate penalty, the broad language used in Boyd
notwithstanding.
In this case, the prosecutor’s argument and the trial court’s
response to the jury’s question properly cast sympathy to defendant’s
family as irrelevant “to aggravation, mitigation, and sentence”
(former § 190.3, Stats. 1977, ch. 316, § 11, p. 1259) under the 1977
death penalty statute, just as it is irrelevant under the 1978 law.
(Ochoa, supra, 19 Cal.4th at p. 456; accord, People v. Murtishaw
(1989) 48 Cal.3d 1001, 1027 (Murtishaw II) [“a 1978-law sentencer
[has] the same range of potential mitigating evidence and the same
broad power of leniency and mercy afforded a 1977-law jury”].) This
is because under both statutes, the fundamental question before the
trier of fact is to “decide whether the defendant deserves to die, not
whether the defendant’s family deserves to suffer the pain of having
a family member executed.” (Ochoa, at p. 456; see Sanders, supra,
11 Cal.4th at p. 546.)46 There was no error.
Furthermore, even assuming former section 190.3 permitted
jury consideration of family sympathy in deciding penalty, the trial
court’s instruction was not prejudicial. Defendant presented the
testimony of multiple family members showing the love that he and
his family shared and evidence of defendant’s importance within their
family, including his role as a parent and grandparent. The
instruction that was provided to the jury allowed the jury to consider
that evidence insofar as it implicated any positive aspect of
defendant’s character. None of defendant’s witnesses in the penalty

46
Having concluded the trial court did not err in this respect, we
reject defendant’s related argument that the trial court’s failure to so
instruct the jury deprived him of a state-created “liberty interest”
under Hicks v. Oklahoma (1980) 447 U.S. 343, 346. (See People v.
Boyette (2002) 29 Cal.4th 381, 445, fn. 12.)

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phase testified about the effect a death verdict would have upon them
or their family, however. It was only after the prosecutor stated that
the jury would be instructed that they could not consider sympathy
for defendant’s family and no such instruction was provided that the
jury sought clarification from the trial court. Under the
circumstances, we perceive no realistic possibility that the trial court’s
instruction contributed to the verdict.
E. Challenges to California’s Death Penalty Statute
Defendant raises numerous challenges under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the constitutionality of
California’s death penalty statute and the way it was applied to him.
In presenting his claims, defendant relies interchangeably on
authorities interpreting our 1977 and 1978 death penalty laws. We
conclude each claim lacks merit.
Preliminarily, we note that the aggravating and mitigating
factors listed for the jury’s consideration regarding the question of
penalty under the 1977 and 1978 death penalty statutes are the same
except that the 1978 death penalty initiative added new factor (c),
“[t]he presence or absence of any prior felony conviction.” (§ 190.3,
factor (c).) The remaining factors listed in the 1977 law were
thereafter resequenced accordingly. (§ 190.3, added by Prop. 7, § 8, as
approved by voters, Gen. Elec. (Nov. 7, 1978), eff. Nov. 8, 1978.) The
parties in this case agreed to have the trial court instruct the jury
under the version of CALJIC No. 8.85 that listed the statutory factors
as provided by the 1978 death penalty initiative.
In addition, as alluded to earlier in addressing defendant’s claim
regarding sympathy to his family, “the 1978 [death penalty] law tells
the jury to decide the appropriate punishment by weighing certain
factors, while the 1977 version asked only that the sentencer ‘consider,
take into account and be guided by’ the factors listed. But this

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amendment does not rob the jury of its constitutional responsibility to
decide what penalty is appropriate under all the relevant
circumstances. It simply makes clear that, in resolving the ultimate
issue of punishment under the 1978 law, the jurors are to limit their
consideration to ‘the specific factors listed in the statute . . . .’ ”
(People v. Brown (1985) 40 Cal.3d 512, 544.) Here, the jury was
instructed under former CALJIC No. 8.88 to exercise its sentencing
discretion in accordance with the 1977 law, i.e., that it “shall consider,
take into account and be guided by the applicable factors of
aggravating and mitigating circumstances upon which you have been
instructed.”
Further, and notably, the language of the 1978 death penalty
law “states that the fact finder ‘shall’ then impose a death sentence if
it concludes aggravating circumstances ‘outweigh’ mitigating, and
‘shall’ impose a sentence of life imprisonment without possibility of
parole if it concludes mitigating circumstances ‘outweigh’
aggravating. (§ 190.3.)” (Murtishaw II, supra, 48 Cal.3d at p. 1025.)
When, in Murtishaw II, we clarified that “the 1978 statute provides a
range of sentencing discretion no less favorable to a defendant than
its 1977 counterpart,” we tacitly recognized that there are essentially
no differences between the two statutory schemes relevant to our
resolution of defendant’s constitutional challenges. (Id. at p. 1026.)
For all these reasons, our rationale in denying identical or analogous
challenges to the constitutionality of the 1978 death penalty law
applies equally here.
Consistent with the foregoing, we decline defendant’s invitation
to reconsider our previous holdings that:
The 1977 death penalty statute does not violate the cruel and
unusual punishment and due process clauses of the state and federal
Constitutions. (People v. Robertson (1989) 48 Cal.3d 18, 64.)

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“Section 190.3, factor (a), as applied, does not fail to sufficiently
minimize the risk of wholly arbitrary and capricious action prohibited
by the Eighth Amendment.” (People v. Schmeck (2005) 37 Cal.4th
240, 304.)
“ ‘ “[T]he California death penalty statute is not impermissibly
broad, whether considered on its face or as interpreted by this
court.” ’ ” (People v. Gonzalez (2021) 12 Cal.5th 367, 416 (Gonzalez).)
“ ‘ “[S]ection 190.3, factor (a), on its face or as interpreted and applied,
[does not] permit[] arbitrary and capricious imposition of a sentence
of death.” ’ ” (Ibid.)
“ ‘Except for evidence of other crimes and prior convictions,
jurors need not find aggravating factors true beyond a reasonable
doubt; no instruction on burden of proof is needed; the jury need not
achieve unanimity except for the verdict itself; and written findings
are not required.’ ” (People v. Sánchez (2016) 63 Cal.4th 411, 487.)
“ ‘ “[T]he death penalty statute does not lack safeguards to avoid
arbitrary and capricious sentencing . . . or constitute cruel and
unusual punishment on the ground that it does not require either
unanimity as to the truth of aggravating circumstances or findings
beyond a reasonable doubt that an aggravating circumstance [except
for evidence of other crimes and prior convictions] . . . has been
proved, that the aggravating factors outweighed the mitigating
factors, or that death is the appropriate sentence.” [Citation.]
Nothing in Hurst v. Florida (2016) 577 U.S. [92] . . . , Cunningham v.
California (2007) 549 U.S. 270 . . . , Blakely v. Washington (2004)
542 U.S. 296 . . . , Ring v. Arizona (2002) 536 U.S. 584 . . . , or
Apprendi v. New Jersey (2000) 530 U.S. 466 . . . , affects our
conclusions in this regard.’ ” (Gonzalez, supra, 12 Cal.5th at p. 416;
see also People v. Robertson, supra, 48 Cal.3d at p. 63 [the 1977 death
penalty law’s “failure to impose a beyond-a-reasonable-doubt

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standard on the decision regarding the appropriateness of death is not
violative of equal protection”]; People v. Ghent (1987) 43 Cal.3d 739,
773–774 (Ghent) [under the 1977 death penalty statute, unanimity as
to whether uncharged criminal activity has been proved beyond a
reasonable doubt is not required].)
“ ‘ “[W]ritten findings by the jury during the penalty phase are
not constitutionally required, and their absence does not deprive
defendant of meaningful appellate review.” ’ ” (Gonzalez, supra,
12 Cal.5th at p. 417.)
“ ‘ “[T]he federal constitutional guarantees of due process and
equal protection, and against cruel and unusual punishment
[citations], do not require intercase proportionality review on
appeal.” ’ ” (Gonzalez, supra, 12 Cal.5th at p. 417.)
“ ‘ “ ‘[C]apital and noncapital defendants are not similarly
situated and therefore may be treated differently without violating’ a
defendant’s right to equal protection of the laws, due process of law,
or freedom from cruel and unusual punishment.” ’ ” (Gonzalez, supra,
12 Cal.5th at p. 417.)
“ ‘[T]he trial court [is not] constitutionally required to instruct
the jury that section 190.3’s mitigating factors [can] be considered
only as mitigating factors and the absence of evidence supporting any
one should not be viewed as an aggravating factor.’ ” (Gonzalez,
supra, 12 Cal.5th at p. 417; see also Ghent, supra, 43 Cal.3d at p. 777
[under the 1977 law, the trial court need not instruct “that evidence
of mitigating factors related solely to defendant’s background and
character could be considered and used as a basis for a sentence less
than death”].) “[T]he absence of a nonunanimity instruction
regarding mitigating evidence d[oes] not undermine [a] defendant’s
constitutional rights.” (People v. Moore (2011) 51 Cal.4th 1104, 1140.)

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“ ‘Use in the sentencing factors of such adjectives as ‘extreme’
[(modified CALJIC No. 8.85, as given here, section 190.3, factors (d),
(g))] and ‘substantial’ [(modified CALJIC No. 8.85, as given here,
factor (g))] does not act as a barrier to the consideration of mitigating
evidence in violation of the federal Constitution.’ ” (McDaniel, supra,
12 Cal.5th at p. 156; Ghent, supra, 43 Cal.3d at p. 776 [under the 1977
law, concerning use of “ ‘extreme’ ” adjective].) A trial court need not
delete assertedly inapplicable statutory sentencing factors from the
jury instructions. (McDaniel, at p. 156; Ghent, at pp. 776–777 [1977
law].) “The trial court need not instruct that there is a presumption
of life.” (McDaniel, at p. 157.)
“International law does not prohibit a sentence of death
rendered in accordance with state and federal constitutional and
statutory requirements.” (People v. Friend (2009) 47 Cal.4th 1, 90.)
“ ‘ “ ‘[T]he death penalty as applied in this state is not rendered
unconstitutional through operation of international laws and
treaties.’ ” ’ ” (Gonzalez, supra, 12 Cal.5th at p. 417.)
V. THE CALIFORNIA RACIAL JUSTICE ACT OF 2020
Defendant contends that racial bias infected every stage of trial
proceedings, rendering his conviction and death sentence invalid
under the California Racial Justice Act of 2020 (§ 745; Stats. 2020,
ch. 317, § 3.5; RJA). We conclude that the circumstances do not
establish prejudicial error under the RJA.
A. Applicable Law
The RJA prohibits the state from seeking or obtaining a criminal
conviction, or seeking, obtaining, or imposing a sentence, “on the basis
of race, ethnicity, or national origin.” (§ 745, subd. (a).) “The
Legislature passed the RJA in 2020 with a stated aim ‘to eliminate
racial bias from California’s criminal justice system’ and ‘to ensure
that race plays no role at all in seeking or obtaining convictions or in

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sentencing.’ (Stats. 2020, ch. 317, § 2, subd. (i).)” (People v. Wilson
(2024) 16 Cal.5th 874, 944–945.)
As relevant here, a defendant may establish a violation of the
RJA by proving that “[t]he judge, an attorney in the case, a law
enforcement officer involved in the case, an expert witness, or juror
exhibited bias or animus towards the defendant because of the
defendant’s race, ethnicity, or national origin.” (§ 745, subd. (a)(1).) A
defendant also establishes a violation of the RJA by showing that
“[d]uring the defendant’s trial, in court and during the proceedings,
the judge, an attorney in the case, a law enforcement officer involved
in the case, an expert witness, or juror, used racially discriminatory
language about the defendant’s race, ethnicity, or national origin, or
otherwise exhibited bias or animus towards the defendant because of
the defendant’s race, ethnicity, or national origin, whether or not
purposeful.” (§ 745, subd. (a)(2).) This latter provision “does not apply
if the person speaking is relating language used by another that is
relevant to the case or if the person speaking is giving a racially
neutral and unbiased physical description of the suspect.” (Ibid.)
“ ‘Racially discriminatory language’ means language that, to an
objective observer, explicitly or implicitly appeals to racial bias,
including, but not limited to, racially charged or racially coded
language, language that compares the defendant to an animal, or
language that references the defendant’s physical appearance,
culture, ethnicity, or national origin. Evidence that particular words
or images are used exclusively or disproportionately in cases where
the defendant is of a specific race, ethnicity, or national origin is
relevant to determining whether language is discriminatory.” (§ 745,
subd. (h)(4).)

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B. Racially Discriminatory Language
Defendant contends the prosecutor used racially discriminatory
language, in violation of the RJA, in multiple instances.
1. “Seething with racial hatred”
While commenting on the evidence of other sexual offenses
during closing argument at the guilt phase of trial, the prosecutor
said: “We also know from statements that the defendant made to two
of the victims that he was seething with racial hatred. Remember
what he told — what he called [S.R.], quote, fucking white bitch.
Remember what he told [K.S.], quote, you’re going to be fucked by a
n*****. Seething with racial hatred. Those two phrases, those two
epithets all part and parcel with a desire to hurt, to control, to
dominate, to humiliate.” Later, when speaking about Woolley, the
prosecutor said, “[Defendant] had the opportunity to watch [her]
through his window. He lived there, and he had the ability to check
out her apartment. He was a man seething with racial resentment.”
The prosecutor then discussed how defendant likely entered Woolley’s
apartment through the broken window.
Defendant asserts that in using this language, the prosecutor
“adopted the long and dishonorable tradition of exploiting untested
allegations of interracial rape to inflame Americans’ biases so that
reason is overwhelmed in a rush toward retribution.”
Context must be considered when determining whether
particular statements come within the RJA’s prohibition on uses of
racially discriminatory language. (People v. Bankston (2026)
19 Cal.5th 786, 835 (Bankston); see also People v. Chhuon and Pan
(2026) 19 Cal.5th 1018, 1087 (Chhuon and Pan).) Viewing the
prosecutor’s statements in light of the evidence that was introduced
at trial, we conclude that the prosecutor’s argument that defendant
was “seething with racial hatred” and “seething with racial

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resentment” did not violate the RJA. The prosecutor’s language did
not “appeal[] to racial bias” by using “racially charged or racially coded
language” that referenced “defendant’s physical appearance, culture,
ethnicity, or national origin.” (§ 745, subd. (h)(4).) Rather, the
prosecutor’s comments reflected a reasonable interpretation and
application of the words defendant himself used in sexually assaulting
other women. Defendant’s language suggested that these crimes were
to some extent racially motivated, and the prosecutor could fairly
argue that the sexual assault of Woolley was similarly motivated.
2. O.J. Simpson references
Defendant also argues that the prosecutor violated the RJA by
referring to the O.J. Simpson47 case twice at his trial. We find no error
as to the first reference and conclude that even if we were to assume
error as to the second reference, any assumed RJA violation is
harmless beyond a reasonable doubt.
First, during voir dire, the prosecutor asked the prospective
jurors if there was “[a]nybody with a basic distrust of scientists or
scientific evidence?” One prospective juror spoke up, saying, “Mine
isn’t so much a basic mistrust of scientists, but it’s of the people that
handled it before it got to the scientist. That’s where I always get a
little concerned.” The prosecutor responded, “As in the O.J. Simpson
case, perhaps?” and the prospective juror responded, “Yes, yes.”

47
The record in People v. Simpson (Super. Ct. L.A. County, 1995,
No. BA097211) is not part of the record in this appeal, but we take
judicial notice, as facts that are not reasonably subject to dispute
(Evid. Code, § 452, subds. (g), (h)), that the case involved the trial of
African-American former National Football League star Orenthal
James Simpson for the murders of his ex-wife Nicole Brown Simpson
and Ron Goldman; and that Simpson was found not guilty by a jury
after a trial in which DNA evidence was presented by the prosecution
and challenged by the defense.

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The second challenged reference to the O.J. Simpson case
occurred during closing argument at the guilt phase of trial. In its
closing argument, the defense argued that the semen sample on the
bedspread was fresher than the semen sample on the bedsheet and
raised the possibility of evidence tampering. Counsel told the jury
that no one back in 1978 had noticed any stains on the bedspread even
though rape or an attempted rape had been suspected and stains had
been noted on the bedsheet. Counsel argued, “So what we end up with
is in 1978 not one bit of evidence of any stain on [the] bedspread,
observations of many stains, some testing positive for acid
phosphatate [sic] in 1978 on [the] bed sheet.” Counsel then argued
that had the samples on the bedspread been deposited at the same
time as the samples on the bed sheet they would have degraded
similarly and not produced results that were as different as the
evidence at trial showed. Counsel asked, “Why such an enormous
difference? Well, the obvious answer is age. Age. The semen is much
fresher.” Later, making the same point, counsel said, “if the evidence
was contaminated, fiddled with, somebody did something, if somebody
did something to the bedspread, then they certainly would have done
something to the murder weapon, the sock.”
During rebuttal, when discussing the physical evidence in the
case, the prosecutor said, “Now, I never thought in my career that I
would actually be confronted with what essentially is the O.J.
Simpson defense, but that’s what we have in this case. And you all
probably remember one of the investigators assigned to the case went
and got a blood sample from O.J. Simpson because that’s what they
extracted DNA from back then. And not knowing what a defense
attorney was going to do two years later, the guy, because he was
assigned to the case, put the blood in the trunk of his car and drove
back to the crime scene to do more work with the other investigators.
And that allowed the defense attorney two years later to claim that

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the guy took the blood out of the trunk and went and mixed it with
the victim’s blood and stuff like that so that there would be — and so
that’s how O.J. Simpson’s DNA got at the crime scene rather than the
fact that he got cut during the struggle and bled.” He continued,
“Well, there’s one thing wrong with the O.J. Simpson defense in this
case. . . . [T]he DNA in this case that came off that bedspread came
from sperm, came from semen. It didn’t come from anything else. It
came from sperm. It came from semen. [¶] If — I’m not sure whether
it’s the cops or the scientists that are supposed to be the bad
conspirators under [defense counsel’s] theory. But if they planted
[defendant’s] DNA, where did they get the semen? Did they sneak up
on him in the night? They never got a semen sample from [defendant].
They got a saliva sample. So this is a desperate, ridiculous theory.
Can’t blame [defense counsel], he’s doing his job, but you sure don’t
have to buy it.” Defendant did not raise a contemporaneous objection
to this argument.
In his supplemental briefing, defendant refers to the
prosecutor’s references to O.J. Simpson as “a textbook example of
racially coded language” prohibited under the RJA. According to
defendant, the prosecutor’s argument was calculated to stoke race-
based resentment in what he describes as an all-White jury regarding
the not guilty verdict in the Simpson case, with that resentment then
spilling over to defendant’s case on account of the similar races of the
defendants and victims in the two matters.
We find no RJA violation as to the prosecutor’s first challenged
reference. However “ill-advised” it may be for a prosecutor to draw
comparisons between a proceeding and the O.J. Simpson case (People
v. Evans (Ill. 2004) 808 N.E.2d 939, 956), references to the O.J.
Simpson case in trial proceedings are not necessarily racially coded.
In People v. Dykes (2009) 46 Cal.4th 731, for example, the prosecutor
made a passing reference to that case in telling the jurors that he
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understood that the trial was a “ ‘big imposition,’ ” but “ ‘It’s just with
the O.J. case, I know you’re reliving some of the big imposition those
jurors have on their life but I assure you, as the judge has indicated,
when we do break early or oftentimes we’re here before and after you
come and go, but there are very important legal issues that we’ve been
working on.’ ” (Id. at p. 774.) We observed that “it is not reasonably
likely the jury would understand this comment to refer, as defendant
claims, ‘to the common view, at least among non-Black jurors, that
Simpson got away with murder,’ nor would it, as defendant claims,
‘prejudice the jury in the prosecution’s favor.’ ” (Ibid.)
Moreover, it is not unusual for the use of DNA evidence in the
O.J. Simpson case to come up in voir dire, as it did here. (See, e.g.,
People v. Nadey (2024) 16 Cal.5th 102, 135 [noting one prospective
juror’s knowledge of DNA evidence “came only from the ‘OJ Simpson
case’ ”]; People v. Miles (2020) 9 Cal.5th 513, 552 [voir dire included
asking prospective jurors about their opinion on the O.J. Simpson case
because “the prosecutor considered Simpson’s case to be similar to
defendant’s case given that both cases relied on DNA evidence and
circumstantial evidence”].) In context, the prosecutor’s question to the
prospective juror regarding the O.J. Simpson case illuminated the
prospective juror’s possible concerns about the handling of DNA
evidence by identifying a specific, well-known scenario that might
implicate those concerns.48 We conclude that an objective observer
would not perceive this specific inquiry as indicative of bias or animus
toward defendant, nor as involving racially discriminatory language,
coded or otherwise.
The prosecutor’s argument in rebuttal at the guilt phase is a
closer issue. Even if we were to assume without deciding that the

48
Both parties acknowledge that the facts of the O.J. Simpson trial
were well known at the time of the 2004 trial in this case.

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prosecutor’s argument violated the RJA, we conclude that any such
violation was harmless beyond a reasonable doubt. (See Bankston,
supra, 19 Cal.5th at pp. 873 [“at least with respect to cases in which
judgment was entered before the RJA took effect, we read the RJA as
permitting an inquiry into whether a miscarriage of justice occurred”],
879 [concluding “that in cases in which judgment was entered before
2021, the harmless beyond a reasonable doubt standard applies on
appeal to review of RJA claims asserting the use of racially
discriminatory language”], Chhuon and Pan, supra, 19 Cal.5th at
p. 1090; People v. Demolle (2026) 19 Cal.5th 1117, 1201 (Demolle); see
also U.S. v. Papajohn (8th Cir. 2000) 212 F.3d 1112, 1121 [the
prosecutor’s comparison of the defendant’s defense to the O.J.
Simpson defense was not so inflammatory to require a mistrial; the
comments were fleeting and it did not draw a direct comparison
between the defendant and Simpson]; State v. Taylor (Minn. 2002)
650 N.W.2d 190, 207–208 [concluding that even if a prosecutor’s
reference to the O.J. Simpson defense in response to the defendant’s
assertion of evidence tampering was misconduct, it did not warrant a
new trial]; State v. Thompson (Minn. 1998) 578 N.W.2d 734, 743
[finding a prosecutor’s reference to the defendant thinking, “ ‘Maybe I
am not going to get off like O.J. did,’ ” to be misconduct, but harmless
in light of the overwhelming evidence of guilt]; cf. DeFreitas v. State
(Fla.Dist.Ct.App. 1997) 701 So.2d 593, 601 [when viewed together
with other errors, the prosecutor’s invocation of O.J. Simpson in
closing argument deprived defendant of a fair criminal trial].)
The prosecutor’s references to the O.J. Simpson case were a
minor feature of his rebuttal argument at the guilt phase. (See People
v. Barrera (2026) 19 Cal.5th 919, 992 [the prosecutor’s comments
during closing argument violated the RJA but were harmless beyond
a reasonable doubt where, in part, “the challenged comments were
made only briefly and in passing”]; Demolle, supra, 19 Cal.5th at

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p. 1203 [concluding the challenged comments were harmless beyond
a reasonable doubt where “the argument as a whole was extensive and
fair, while the challenged remarks were brief[ and] contained”].)
Compelling evidence of defendant’s culpability was offered at trial,
including the DNA evidence that was the subject of the prosecutor’s
remarks, as well as the evidence of multiple other sexual offenses
committed by defendant. And the prosecutor did not refer to the O.J.
Simpson case at the penalty phase. (See Bankston, supra, 19 Cal.5th
at p. 880 [finding relevant in its prejudicial analysis that the
comments made in violation of the RJA occurred during the penalty
phase where,“ ‘ “unlike the guilt determination, ‘the sentencing
function is inherently moral and normative, not factual’ ” ’ ”].) We
conclude from the above that any assumed error was harmless beyond
a reasonable doubt as to both the guilt and penalty phases. 49
C. Racial Bias
Defendant also asserts that the prosecutor and the trial court
exhibited racial bias during jury selection and in the admission of
evidence at trial.
1. Exclusion of African-American jurors
Defendant contends the prosecutor violated the RJA by
successfully eliminating all African-American prospective jurors from
the venire. He asserts that the prosecutor’s “aggressive and disparate
questioning” of an African-American prospective juror (J.M.), resulted
in her dismissal for cause. The prosecutor then used his first
peremptory challenge to strike the only remaining African-American
(A.E.) from the panel. Defendant asserts that while Batson requires

49
The dissent would hold that the prosecutor’s two references to
O.J. Simpson violate the RJA. (Dis. opn. of Liu, J., post, at pp. 3–4.)
But it does not explain its view as to whether the purported error was
harmless.

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purposeful discrimination, under the RJA he “need only demonstrate
that racial bias — conscious or otherwise — played a role in
whitewashing his jury.”
The Attorney General argues that defendant’s claim is not
cognizable under the RJA. He asserts that the “plain language of
section 745 provides no remedy for a prosecutor’s exhibition of bias
directed at venirepersons during jury selection,” and even if the
statute were ambiguous on this issue, the RJA’s legislative history
establishes that the Legislature intended that racially discriminatory
peremptory challenges would be addressed under the
contemporaneously enacted Code of Civil Procedure section 231.7, not
the RJA. Defendant responds that because Code of Civil Procedure
section 231.7 applies only prospectively, and not to cases such as this
one that were tried long before its effective date as to criminal cases,
the RJA must be deemed applicable here to address racial
discrimination in jury selection that would otherwise violate the
statute but evade review.
We find the Attorney General’s proffered interpretation of the
statutory language more persuasive. “[T]he RJA’s relevant provisions
do not encompass bias or animus directed towards persons other than
the defendant” (Chhuon and Pan, supra, 19 Cal.5th at p. 1087), such
as a prospective juror. Although the dissent finds this view to be
“cramped” (dis. opn. of Evans, J., post, at p. 26), the plain language of
the provision at issue is directed to the “exhibit[ion of] bias or animus
towards the defendant because of the defendant’s race, ethnicity, or
national origin.” (§ 745, subd. (a)(2).) It is clear this language means
such bias or animus was directed toward the defendant and by reason
of the defendant’s race, ethnicity, or national origin — rather than
toward a prospective juror or by reason of the prospective juror’s race,
ethnicity, or national origin. Because a prosecutor’s exercise of a
peremptory challenge is not an action taken against a defendant but
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rather against a prospective juror, we conclude that the exercise of a
peremptory challenge, standing alone, does not exhibit the requisite
bias or animus “towards the defendant because of the defendant’s race,
ethnicity, or national origin” within the scope of this provision of the
RJA. (§ 745, subd. (a)(2), italics added.) This logic applies with equal
force to the prosecutor’s questioning of J.M., who ultimately was
dismissed for cause. This questioning, too, was not an action directed
toward the defendant.
The dissent would instead adopt an overly expansive view of the
statute, encompassing any action designed “to secure a perceived
tactical advantage” vis-à-vis the defendant. (Dis. opn. of Evans, J.,
post, at p. 27.) According to the dissent, such conduct would fall
within the RJA’s prohibition against “an unlawful effort to ‘seek,
obtain, or impose a sentence on the basis of [the defendant’s] race.’ ”
(Dis. opn. of Evans, J., post, at p. 28, quoting § 745, subd. (a).) We are
not persuaded that the type of conduct at issue here — permissibly
striking one juror using a peremptory challenge, and removing
another for cause — fits within the scope of the statute and the
commonly understood language it invokes. (North American Title Co.
v. Superior Court (2024) 17 Cal.5th 155, 169 [when interpreting a
statute, we give the relevant language “ ‘ “ ‘ “ ‘a plain and
commonsense meaning’ ” ’ ” ’ ”].)
Even if we were to conclude that the statutory language is
ambiguous, “ ‘other aids, such as the statute’s purpose, legislative
history, and public policy’ ” (People v. Reynoza (2024) 15 Cal.5th 982,
990) confirm our conclusion that a prosecutor’s exercise of a
peremptory challenge does not fall within the scope of this provision
of the RJA. As we explain below, the Legislature specifically
considered including a subdivision in the RJA prohibiting the exercise
of peremptory challenges in which “[r]ace, ethnicity, or national origin
was a factor.” (Assem. Bill No. 2542 (2019–2020 Reg. Sess.) § 3, as
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amended July 1, 2020.) The Legislature, however, did not ultimately
enact that subdivision in the RJA. Instead, the Legislature decided to
enact another bill — Assembly Bill No. 3070 (2019–2020 Reg. Sess.)
(Assembly Bill 3070) — to combat conscious and unconscious bias in
jury selection. (See Code Civ. Proc., § 231.7, added by Stats. 2020,
ch. 318.)
An early version of Assembly Bill No. 2542 (2019–2020 Reg.
Sess.) (Assembly Bill 2542) — the bill that eventually became the
RJA — proposed to expressly address peremptory challenges. (See
Assem. Bill No. 2542, §§ 3, 3.5, as amended July 1, 2020.) The
accompanying legislative findings discussed discrimination in the
criminal justice system, including discrimination in jury selection.
The findings quoted a Court of Appeal justice as having “observed the
legal standards for preventing racial bias in jury selection are
ineffective, observing that ‘requiring a showing of purposeful
discrimination sets a high standard that is difficult to prove in any
context.’ ” (Assem. Bill 2542, § 2, subd. (c), as amended July 1, 2020.)
The bill then set forth two options. The first option provided
that a defendant may establish a violation by proving that “[r]ace,
ethnicity, or national origin was a factor in the exercise of peremptory
challenges” and “need not show that purposeful discrimination
occurred in the exercise of peremptory challenges to demonstrate a
violation.” (Assem. Bill 2542, § 3, as amended July 1, 2020.) The
second option provided that a defendant may establish a violation by
proving that “[i]f jury selection was completed prior to January 1,
2021, race, ethnicity, or national origin was a factor in the exercise of
peremptory challenges,” and the defendant “need not show that
purposeful discrimination occurred in the exercise of peremptory
challenges to demonstrate a violation.” (Id., § 3.5, italics added.) The
bill provided that the first option would become operative if a separate
measure, Assembly Bill No. 3070, did not become effective on or before
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January 1, 2021. (Assem. Bill 2542, § 5, as amended July 1, 2020.)
The second option would become operative only if Assembly Bill 3070
“is enacted and becomes effective on or before January 1, 2021.”
(Assem. Bill 2542, § 5, as amended July 1, 2020.) As explained by
contemporaneous legislative materials, “This bill provides that if AB
3070 is enacted, this bill’s provisions would apply retroactively, while
AB 3070’s provisions would apply prospectively.” (Sen. Com. on Public
Safety, Analysis of Assem. Bill No. 2542 (2019–2020 Reg. Sess.), as
amended Aug. 1, 2020, p. 12.) In this way, the early versions of the
bill ensured that the RJA would apply to peremptory challenges: if
Assembly Bill 3070 passed, it would apply retroactively only, and if
Assembly Bill 3070 did not pass, it would apply both retroactively and
prospectively.
The two options relating to jury selection were amended later in
the legislative process. With the first option, a defendant could
establish a violation by proving that “[r]ace, ethnicity, or national
origin was a factor in the exercise of peremptory challenges” and “need
not show that purposeful discrimination occurred in the exercise of
peremptory challenges.” (Assem. Bill 2542, § 3 as amended Aug. 25,
2020.) The second option, however, no longer allowed a violation to be
shown based on the exercise of peremptory challenges. (Id., § 3.5.)
Specifically, the second option deleted the following language: “If jury
selection was completed prior to January 1, 2021, race, ethnicity, or
national origin was a factor in the exercise of peremptory challenges.
The defendant need not show that purposeful discrimination occurred
in the exercise of peremptory challenges to demonstrate a violation of
subdivision (a).” (Ibid.) This second option would “only become
operative if Assembly Bill 3070 is enacted and becomes effective on or
before January 1, 2021, in which case [the first option in] this bill shall
not become operative.” (Id., § 7.) In other words, later versions of the
bill envisioned that the RJA would prohibit the exercise of peremptory

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challenges in which “[r]ace, ethnicity, or national origin was a factor”
only if the separate bill, Assembly Bill 3070, did not become effective
on or before January 1, 2021. (Assem. Bill 2542, § 3, as amended
Aug. 25, 2020.) As explained by contemporaneous legislative
materials, the bill “[p]rovides contingency language so that the bill’s
provisions related to peremptory challenges would only go into effect
if AB 3070 is not signed into law.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill 2542 (2019–2020 Reg.
Sess.) as amended Aug. 25, 2020, p. 8.)
This approach was reflected in the version of Assembly Bill 2542
that was passed by the Legislature and signed by the Governor. (See
Stats. 2020, ch. 317, §§ 3, 3.5, 7.) The Legislature also passed
Assembly Bill 3070, which became effective on January 1, 2021.
(Stats. 2020, ch. 317, § 7; see Stats. 2020, ch. 318; Cal. Const., art. IV,
§ 8, subd. (c) [statute goes into effect on January 1 following the
enactment]; People v. Alford (2007) 42 Cal.4th 749, 753, fn. 2.) The
second option appearing within Assembly Bill 2542, which did not
contain the provision addressing the use of peremptory challenges,
therefore became operative. (Stats. 2020, ch. 317, § 7.)
Our review of this bill and its legislative history leads us to
conclude that the Legislature did not intend the RJA to apply to the
exercise of a peremptory challenge of a prospective juror. As detailed
above, the Legislature specifically considered — but ultimately did
not enact — a subdivision in the RJA prohibiting the exercise of
peremptory challenges in which “[r]ace, ethnicity, or national origin
was a factor.” (Assem. Bill 2542, § 3, as amended Aug. 25, 2020.)
“ ‘The rejection of a specific provision contained in an act as originally
introduced is “most persuasive” that the act should not be interpreted
to include what was left out.’ ” (Murphy v. Kenneth Cole Productions,
Inc. (2007) 40 Cal.4th 1094, 1107; accord, City of Santa Cruz v.
Municipal Court (1989) 49 Cal.3d 74, 89 [finding relevant that specific
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language in an early version of a bill was deleted from the final version
of the statute].) Moreover, the Legislature has since repeatedly
amended the RJA — in 2022, 2023, 2024, and 2025 — and at no point
did the Legislature add a subdivision expressly addressing
peremptory challenges.
References to discrimination in jury selection in the legislative
materials do not require a different conclusion. It is true that the
RJA’s accompanying legislative findings mention discrimination in
jury selection, in addition to other forms of discrimination in the
criminal justice system. (Stats. 2020, ch. 317, § 2(c).) However, those
legislative findings accompanied two options in the bill, one which
addressed discrimination in jury selection and one which did not, and
only the latter became effective. These accompanying findings do not
require us to disregard the Legislature’s decision to have the use of
peremptory challenges addressed through Assembly Bill 3070, rather
than the RJA. (See People v. Soto (2011) 51 Cal.4th 229, 245 [“ ‘The
rejection by the Legislature of a specific provision contained in an act
as originally introduced is most persuasive to the conclusion that the
act should not be construed to include the omitted provision’ ”].)
“Furthermore, while uncodified legislative findings may be used as an
aid in construing a statute, they ‘ “ ‘do not confer power, determine
rights, or enlarge the scope of a measure.’ ” ’ ” (Chhuon and Pan,
supra, 19 Cal.5th at p. 1104, fn. 12; cf. dis. opn. of Evans, J., post, at
p. 30 [contending that “[a]ny discussion of Legislative intent . . . must
first begin with the uncodified findings” (italics added)].)
It is also true that legislative materials associated with
subsequent amendments to the RJA include some references to
discrimination in jury selection. (See Fact Sheet, Assem. Bill No. 256
(2021–2022 Reg. Sess.) May 24, 2021, p. 1 [“Far too many Californians
have had their convictions and sentences upheld despite:
[¶] Blatantly racist statements by attorneys, judges, jurors and expert
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witnesses; [¶] The exclusion of all, or nearly all Black or Latinx people
from serving on a jury; and [¶] Stark statistical evidence showing
systemic bias in charging and sentencing”]; see also Assem. Com. on
Public Safety, Background Information Request for Assem. Bill
No. 1113 (2023–2024 Reg. Sess.) p. 3.) But these general statements
must be considered in the context of the statute as a whole, keeping
in mind the specific mechanisms the Legislature adopted to prohibit
racial discrimination in our courts. The materials do not explain in
any way how the specific provisions of the RJA purport to address
discrimination in jury selection. We do not believe these references
demonstrate that the Legislature intended for the RJA to apply to the
exercise of peremptory challenges, in spite of omitting a subdivision
that would expressly so provide.50
In sum, we conclude that the RJA does not apply to the
questioning of or exercise of a peremptory challenge of a prospective
juror. Both the language of the statute, and the Legislature’s intent,
reflect that it chose to address peremptory challenges in a statutory
scheme separate and apart from the RJA. We therefore conclude that
defendant’s claim regarding the prosecutor’s questioning of a

50
The dissent correctly rejects defendant’s claim that a defendant
can “necessarily demonstrate that the RJA was violated merely based
upon his related claim that Batson/Wheeler was violated.” (Dis. opn.
of Evans, J., post, at p. 37, fn. 5.) Beyond acknowledging that a
“separate analysis” (ibid.) would be required, however, the dissent
never explains how the RJA should operate in this context when a
defendant asserts a prosecutor acted with implicit bias in striking a
prospective juror — including where, as here, a majority of the court
concludes there was no prima facie showing of discrimination in
excusing any prospective juror.

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prospective juror and use of a peremptory challenge, standing alone,
is not cognizable under the RJA.51
2. Alleged reliance on race of prior victims
As previously discussed (see ante, pt. III.A.4.), the trial court
determined that evidence of defendant’s five prior, uncharged
instances of sexual misconduct was admissible under Evidence Code
section 1108. In making its ruling, the trial court relied on several
similarities between the uncharged and charged conduct. Specifically,
the incidents all occurred within a nine-year period, all five victims
were White, the victims were of a similar age, and four of the five
victims were acquainted with defendant. (See Falsetta, supra,
21 Cal.4th at p. 917.)
Defendant contends the trial court exhibited implicit racial bias
in violation of the RJA when it considered the race of the witnesses as
relevant to the admissibility of the uncharged acts evidence. But it
was not indicative of bias for the trial court to take the victims’ race
into consideration in determining the admissibility of the prior
assaults. We have frequently noted that victims were of the same race
in describing the degree of similarity across charged crimes, or
between charged and uncharged crimes. (See People v. Edwards

51
The dissent raises concerns regarding the potential “utiliz[ation
of] other aspects of the jury selection process in a race-conscious
manner,” “strik[ing] a Black judge under Code of Civil Procedure
section 170.6 on the basis of their discriminatory belief . . . that judges
may act more sympathetically towards a member of their own race,”
“preferentially exclud[ing] Black jurors for cause or hardship,” and
prosecutorial “target[ing of] only Black jurors for criminal background
checks” in evaluating them. (Dis. opn. of Evans, J., post, at p. 29.)
None of this occurred. Indeed, the dissent’s entire premise — that the
prosecutor struck a juror “based on a discriminatory belief that any
juror who shares a racial identity with a defendant cannot be
impartial” (id. at p. 28) — is not supported by the record in this case.

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(2013) 57 Cal.4th 658, 712 [noting that victims shared the same race
in upholding trial court’s ruling admitting evidence of prior killing in
murder trial]; People v. Lynch (2010) 50 Cal.4th 693, 757 [evidence of
an uncharged confrontation between defendant and a woman did not
violate Evid. Code, § 1101 in part because the individual involved in
that incident and the “victims in the charged crimes were Caucasian
elderly women”]; Alcala v. Superior Court (2008) 43 Cal.4th 1205,
1224 [fact that each of a defendant’s victims “was a young, single
Caucasian female” contributed toward cross-admissibility of evidence
regarding the killings and weighed against severance of charges];
People v. Kraft (2000) 23 Cal.4th 978, 1031 [the fact that all of a
defendant’s victims were White males between the ages of 18 and 25
similarly contributed toward cross-admissibility that cut against
severance of murder charges].) The victims’ race was also salient here
because defendant’s statements to S.R. and K.S. suggested a possible
motivation to sexually assault White women. On this record, we
conclude that defendant has not established that the trial court
exhibited “bias or animus towards the defendant because of the
defendant’s race, ethnicity, or national origin.” (§ 745, subd. (a)(1).)
In arguing that the trial court violated the RJA, defendant relies
on People v. Harris (1998) 60 Cal.App.4th 727. That case is readily
distinguishable. The defendant in Harris, a mental health nurse, was
charged with committing several sexual offenses against two patients
at the hospital where he worked. The trial court admitted evidence of
the defendant’s prior conviction of burglary with the infliction of great
bodily injury, the result of a rape, pursuant to Evidence Code section
1108. (Harris, at p. 735.) The trial court concluded the prior offense
was relevant and probative because “it involves Caucasian women. It
involves Caucasian [women] that [are] in this 20 or 30 year age
bracket. It involves coercion, some element of force. It involves
vaginal involvement.” (Id. at p. 740.) The Court of Appeal reversed,

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noting that the prior offense occurred 23 years prior to the charged
conduct and was significantly more violent than the “ ‘breach of trust’
sex crimes” he was charged with. (Id. at p. 741.) The Court of Appeal
further noted that the defendant was also Caucasian and “the ‘20’s or
30’s’ is a wide age group that includes the majority of the victims of
sexual assaults,” and therefore, those stated “ ‘similarities’ ” were not
significant. (Id. at p. 740.) The Court of Appeal concluded that,
despite the similarities in age and race of the victims upon which the
trial court relied, the prior conduct was temporally remote,
inflammatory, and likely to confuse and distract the jury. (Id. at
p. 741.)
Harris thus involved a case-specific determination that the race
of the victims, along with the other similarities between the incidents
before the court, was not enough to justify the admission of evidence
concerning the decades-earlier rape in that matter. Here, in contrast,
there were several similarities between the charged and uncharged
offenses, including the narrower time span in which the offenses
occurred and that four of the five victims were acquainted with
defendant prior to the attacks. Defendant misreads Harris by
gleaning from it the overbroad proposition that a trial court may never
rely on the fact that victims are of a particular race when determining
whether to admit propensity evidence. Nor is this position required
under the RJA as applied to this case.
Relatedly, we reject defendant’s argument that the trial court’s
asserted failure to exclude some of the allegations or the two instances
of racial language was indicative of racial bias or animus. We
previously rejected defendant’s argument that the trial court abused
its discretion when it declined to exclude this evidence (see ante,
pt. III.A.4.g.) and defendant’s reframing of his claim under the RJA
does not alter this conclusion. When making its ruling, the trial court
did not focus on the fact that defendant had a different racial identity
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than the victims; rather, it focused on the fact that the victims all had
the same racial identity.
Accordingly, we conclude that the trial court’s consideration of
the victims’ race as a factor in its decision to admit evidence regarding
their sexual assaults did not demonstrate implicit racial bias toward
defendant in violation of the RJA.
VI. CUMULATIVE ERROR
Defendant contends the cumulative prejudicial effect of the
asserted errors in the guilt and penalty phases of his trial requires
reversal of his conviction and death sentence even if none individually
compels reversal. We have found one error — the trial court’s
erroneous admission of the record of defendant’s misdemeanor
conviction — and we have assumed error in the admission of time of
death evidence, the instruction of the jury with CALJIC 8.71, and the
prosecutor’s argument during rebuttal regarding the O.J. Simpson
case, but found no resulting prejudice. We further conclude that even
if these actual and assumed errors are combined for purposes of
analysis, there was no prejudicial error affecting any stage of the
proceedings.

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VII. DISPOSITION
We affirm the judgment.
GUERRERO, C. J.

We Concur:
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
FUJISAKI, J.*

*
Associate Justice of the Court of Appeal, First Appellate
District, Division Three, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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S126387

Dissenting Opinion by Justice Liu

I join Justice Evans’s persuasive dissenting opinion. I
write to address the prosecutor’s references to the O.J. Simpson
case. The Racial Justice Act of 2020 (RJA) bans language that
implicitly appeals to racial bias regardless of whether it was
spoken with discriminatory intent (Pen. Code, § 745,
subds. (a)(2), (h)(4)), and this case is a prime example of why
that matters.
The prosecutor twice referred to the Simpson case. He
first mentioned the case during voir dire when probing a
prospective juror’s views on scientific evidence. (Maj. opn., ante,
at p. 147.) He then discussed the case at greater length during
his guilt phase rebuttal (id. at pp. 148–149), not long after he
described defendant Larry Hazlett as “ ‘seething with racial
hatred’ ” and “ ‘racial resentment’ ” (id. at p. 146).
Today’s opinion properly admonishes prosecutors from
“draw[ing] comparisons between a proceeding and the O.J.
Simpson case.” (Maj. opn., ante, at p. 149.) A key reason why
such comparisons are “ ‘ill-advised’ ” is their tendency to
activate jurors’ implicit biases against Black defendants. (Ibid.)
As noted in an article cited by the Legislature when it enacted
the RJA, “O.J. Simpson has become an avatar of the brute
caricature among white people, and prosecutors cast Simpson in
this role. Using Simpson’s name in prosecutors’ summations
may cause jurors to associate Black defendants with violent

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PEOPLE v. HAZLETT
Liu, J., dissenting

abuse.” (Prasad, Implicit Racial Biases in Prosecutorial
Summations: Proposing an Integrated Response (2018)
86 Fordham L.Rev. 3091, 3107, fn. omitted; see Stats. 2020,
ch. 317, § 2, subd. (e).)
But the court, as in past cases, goes no further than a brief
admonition. (See People v. Barrera (2026) 19 Cal.5th 919, 1000
(conc. opn. of Liu, J.) [“While I am all for admonishing litigants
to avoid improper language, the fact is that the court’s
admonitions, however strongly worded, carry no legal
consequence.”].) It finds no RJA violation as to the prosecutor’s
reference to the Simpson case during voir dire and, without
explanation, only assumes a violation as to the prosecutor’s
extended discussion of the Simpson case during guilt phase
closing argument. (Maj. opn., ante, at pp. 149–151.) It is not
clear why the court holds back from finding that the prosecutor’s
second reference to the Simpson case violated the RJA. I worry
that the reluctance to identify the violation or to explain why it
“is a closer issue” (id. at p. 150) once again “threatens to
significantly dilute the RJA’s prohibition on language that
‘implicitly appeals to racial bias’ ” (Barrera, at p. 1000 (conc.
opn. of Liu, J.)).
The issue does not seem especially close. At the time of
Hazlett’s trial, which occurred in 2004, “it would have been hard
to think of any recent case in the American justice system more
sensational and racially polarizing than the Simpson trial.”
(People v. Miles (2020) 9 Cal.5th 513, 613 (dis. opn. of Liu, J.).)
That year, 87% of White Americans, compared to 29% of Black
Americans, believed Simpson was guilty of murder, according to
one poll. (NBC News, NBC News Poll: 10 years after Simpson
verdict (June 6, 2004) <https://www.nbcnews.com/id/
wbna5139346> [as of Aug. 27, 2026]; all Internet citations in

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PEOPLE v. HAZLETT
Liu, J., dissenting

this opinion are archived by year, docket number, and case name
at <https://courts.ca.gov/opinions/cited-supreme-court-
opinions>.) Discussing the Simpson case to an all-White jury in
the capital trial of a Black man accused of murdering a White
woman “seems like playing with fire” (Miles, at p. 613 (dis. opn.
of Liu, J.)), as it risks “evok[ing] negative feelings [about the
defendant] in jurors who believe that Simpson was not punished
for his alleged crimes” (Prasad, supra, 86 Fordham L.Rev. at
p. 3107). It was perfectly appropriate for the prosecutor to
discredit an assertion of evidence tampering during closing
argument. “But surely there [were] less racially charged ways
of doing so.” (Miles, at p. 614 (dis. opn. of Liu, J.).)
There is no indication that the prosecutor sought to
inflame the all-White jury by mentioning the Simpson case in
his closing rebuttal. But even language spoken with proper
intentions can trigger “ ‘the associations we make
automatically, outside of our conscious awareness, between
certain groups and certain characteristics.’ ” (People v.
Bankston (2026) 19 Cal.5th 786, 890 (conc. opn. of Liu, J.).) The
Legislature was especially concerned about this possibility; that
is why it wrote the RJA to prohibit language, “whether or not
purposeful,” that “implicitly appeals to racial bias.” (Pen. Code,
§ 745, subds. (a)(2), (h)(4), italics added.) The prohibition
focuses on the effect of the speaker’s words, not the intent behind
them. Referencing the Simpson case so close to guilt
deliberations and shortly after commenting on the racially
charged nature of Hazlett’s crimes significantly risked priming
the all-White jury to not let another Black man accused of
murdering a White woman “get away with it.” This is precisely
the kind of implicit appeal to racial bias that courts must no

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Liu, J., dissenting

longer tolerate. (Stats. 2020, ch. 317, § 2, subd. (i) [racial bias
“in any form or amount . . . is intolerable”].)
The prosecutor’s reference to the O.J. Simpson case during
closing argument was a paradigmatic instance of “language
that, to an objective observer, . . . implicitly appeals to racial
bias” (Pen. Code, § 745, subd. (h)(4)), and I would so hold.
LIU, J.
I Concur:
EVANS, J.

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PEOPLE v. HAZLETT
S126387

Dissenting Opinion by Justice Evans

Larry Kusuth Hazlett, an African-American man, was
tried by an all-White jury of capital murder under the theory
that he raped and murdered Tana Woolley, a White woman, in
a fit of racial hatred. In selecting Hazlett’s jury, the prosecutor
used his first peremptory challenge to remove the only Black
prospective juror from the venire and immediately accepted the
jury as constituted. At trial, the prosecutor introduced evidence
that Hazlett had sexually assaulted four other White women. In
countering Hazlett’s defense that the DNA evidence was
compromised, the prosecutor compared Hazlett’s trial to the
notoriously racialized O.J. Simpson case. After finding him
guilty of capital murder, the jury sentenced Hazlett to death.
Today’s opinion holds that in challenging the prosecutor’s
removal of the last remaining Black prospective juror, Hazlett
failed to make a prima facie case of discrimination under Batson
v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler). I disagree. The prosecutor’s
immediate removal of the lone Black prosecutive juror — in a
case that was highly racially fraught with a special risk of
discriminatory animus — raised an inference of discrimination,
requiring the prosecutor to state his reasons for removing the
juror. Thus, the trial court’s failure to require the prosecutor to
state his reasons for the prospective juror’s removal violated
Hazlett’s right to a fair and impartial jury pursuant to
Batson/Wheeler. Since the passage of time makes it unrealistic

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PEOPLE v. HAZLETT
Evans, J., dissenting

for proper recollection and evaluation of any reason (Snyder v.
Louisiana (2008) 552 U.S. 472, 486 (Snyder)), I would reverse
the judgment.
This is not an ordinary case in which “mak[ing] a prima
facie case after the excusal of only one or two members of a group
is very difficult.” (People v. Bell (2007) 40 Cal.4th 582, 598,
fn. 3.) As we have noted, “circumstances may be imagined in
which a prima facie case could be shown on the basis of a single
excusal.” (Ibid.) This is that case.
I also write separately to disagree with the majority’s
conclusion that a defendant cannot raise a challenge to a
prosecutor’s discriminatory use of peremptory challenges under
the California Racial Justice Act of 2020 (RJA) (Pen. Code,
§ 745; Stats. 2020, ch. 317, § 3.5.).1 The fundamental and
overarching purpose of the RJA was “ ‘to eliminate racial bias
from California’s criminal justice system’ ” and “ ‘to ensure that
race plays no role at all in seeking or obtaining convictions or in
sentencing.’ ” (People v. Bankston (2026) 19 Cal.5th 786, 895,
quoting Stats. 2020, ch. 317, § 2, subd. (i).) The discriminatory
use of peremptory challenges — long regarded as a significant
source of racial discrimination that infects our criminal justice
system — was a significant concern for a Legislature intent on
eradicating racism from the system entirely. Even a cursory
review of the RJA’s uncodified findings reveals that, when
enacting the RJA, the Legislature explicitly detailed concerns
that prior law governing the exercise of peremptory challenges

1
Further unspecified statutory references are to the Penal
Code.

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PEOPLE v. HAZLETT
Evans, J., dissenting

was deficient and that it wished to change these shortcomings
to address the discrimination that prior law had tolerated.
Notwithstanding these express findings, today’s opinion
decides that what the Legislature actually intended was to
create a silent, nontextual exemption under the RJA for
discriminatory peremptory challenges. Under this exception,
courts adjudicating RJA claims must turn a blind eye to
discriminatory peremptories, no matter how clearly the record
demonstrates that prosecution challenges were based on bias.
The text of the RJA provides no support for the majority’s
conclusion. And the legislative history upon which the majority
seeks to bolster its decision is, at best, ambiguous. Because the
majority’s interpretation is so directly at odds with the RJA’s
stated purpose, I cannot join it.
With respect, I dissent.
I.
THE BATSON/WHEELER CLAIM
Our state and federal Constitutions prohibit the use of
peremptory challenges to remove prospective jurors based on
race or ethnicity. (See Batson, supra, 476 U.S. at p. 97; Wheeler,
supra, 22 Cal.3d at pp. 276–277.) “A party may not use
peremptory challenges to remove prospective jurors solely on
the basis of group bias. Group bias is a presumption that jurors
are biased merely because they are members of an identifiable
group distinguished on racial, religious, ethnic, or similar
grounds.” (People v. Fuentes (1991) 54 Cal.3d 707, 713.)
In evaluating a Batson/Wheeler claim, we first determine
whether the defendant made out a prima facie case of
discrimination. A prima facie showing requires that the
defendant demonstrate “that the totality of the relevant facts

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PEOPLE v. HAZLETT
Evans, J., dissenting

gives rise to an inference of discriminatory purpose.” (People v.
Scott (2015) 61 Cal.4th 363, 383 (Scott).) If such showing is
made, the proceedings continue to the second stage where the
“burden shifts to the State to explain adequately the racial
exclusion” by offering permissible race-neutral justifications for
the strikes. (Batson, supra, 476 U.S. at p. 94.) If the prosecution
tenders a race-neutral reason, the proceedings continue to the
third stage where the trial court decides whether the defendant
has proved purposeful racial discrimination. (Purkett v. Elem
(1995) 514 U.S. 765, 767.)
This is a first stage case where the defendant must
establish a prima facie showing — which, under the appropriate
standard, would mean even an inference — of racial
discrimination. A prima facie burden is “low” (Scott, supra,
61 Cal.4th at p. 384) and “ ‘not onerous’ ” (Wade v. Terhune
(9th Cir. 2000) 202 F.3d 1190, 1197). Proof of a prima facie case
may be made from any information in the record available to the
trial court. (Wheeler, supra, 22 Cal.3d at pp. 280–281.) This
information can include a showing that the prosecution struck
most or all of the members of the identified group from the
venire or has used a disproportionate number of peremptory
challenges against the group. (Ibid.) In addition, the defendant
being a member of the excluded group, and the alleged victim
being a member of the group to which the majority of the
remaining jurors belong, are relevant in proving a prima facie
case. (Ibid.)
“In the eyes of the Constitution, one racially
discriminatory peremptory strike is one too many.” (Flowers v.
Mississippi (2019) 588 U.S. 284, 298 (Flowers).) “[T]he exercise
of even a single peremptory challenge solely on the basis of race
or ethnicity offends the guarantee of equal protection of the laws

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PEOPLE v. HAZLETT
Evans, J., dissenting

under the Fourteenth Amendment to the federal Constitution.
[Citations.] Such conduct also violates a defendant’s right to
trial by a jury drawn from a representative cross-section of the
community under article I, section 16 of the state Constitution.”
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1157 (Gutierrez).)
After conducting voir dire and excusing a number of
prospective jurors for hardship or cause, the prosecutor
exercised his first peremptory challenge, immediately striking
Prospective Juror A.E. Defense counsel objected under
Batson/Wheeler, arguing the prosecutor struck A.E. “for the sole
reason she’s African-American” and noted that there were no
African Americans left in the jury pool. Counsel continued, “I
believe that at this stage . . . it’s appropriate for the Court to ask
the prosecutor for his reasons . . . other than the fact that she’s
African-American, the only African-American left on the
possible panel.”
When the trial court asked the prosecutor if he wanted to
respond, the prosecutor stated, “I do not” and added his dismay
that defense counsel initially objected in front of other
prospective jurors, asserting it did “nothing but point the finger
at me as some sort of racist or . . . bigot.” The prosecutor stated
he was not required to articulate his reason for striking
Prospective Juror A.E. unless the court found that there was a
prima facie case of racial discrimination. The trial court
ultimately decided that it was “not prepared to order the D.A. to
respond.”
Defense counsel requested the court to find that the
prosecutor had not stated a race-neutral reason for striking
Prospective Juror A.E. Counsel again pointed out that there
were no other African Americans in the venire, including the

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PEOPLE v. HAZLETT
Evans, J., dissenting

jury box. Counsel asserted there was no indication in
Prospective Juror A.E.’s questionnaire or voir dire responses
that she was biased for or against the death penalty and was
“not aware of any rational explanation the prosecutor could
offer.” Counsel further asked the court to consider the
circumstances under which the prosecutor had questioned
Prospective Juror J.M.’s alleged inability to fairly consider all
the evidence, namely, graphic crime scene photographs. (See
Code Civ. Proc., § 225 [challenges; definition; classes and
types].) Counsel asserted the prosecutor’s manner of
questioning Prospective Juror J.M. “could only [be] categorize[d]
as browbeating” and that the prosecutor misstated the law in
implying to J.M. that she would be “forced” to look at graphic
photographs in this case. Counsel argued that these
circumstances established a prima facie case of discrimination.
After reiterating that it would not ask the prosecutor to
provide a basis for the removal of Prospective Juror A.E., the
court gave the prosecutor another opportunity to explain his
removal of A.E. on the record. Instead, the prosecutor
responded that the questioning of Prospective Juror J.M. was
“completely irrelevant” and the question he asked J.M. “sounded
like exactly the same question that counsel propounded to . . .
other prospective jurors.” While the trial court recalled that
several prospective jurors had been asked similar questions, the
court did not address defense counsel’s characterization of the
prosecutor’s questioning of Prospective Juror J.M. as
“browbeating.” The prosecutor ultimately declined the trial
court’s invitation to articulate any reason for striking A.E.
In denying the Batson/Wheeler motion, the trial court
stated its belief that a race-neutral reason existed for striking
Prospective Juror A.E. Neither the prosecutor nor the court,

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PEOPLE v. HAZLETT
Evans, J., dissenting

however, ever articulated what that reason could be. The trial
court further opined, “I don’t believe there’s a prima facie
showing that the D.A. is somehow discriminating on, um —
against any particular class of individual.” Defense counsel
maintained his belief that “a prima facie case has been made”
since “there is nobody left who is African-American.”
After the jury was selected, defense counsel renewed his
Batson/Wheeler motion, moving for the trial court to reseat
Prospective Juror A.E. or, in the alternative, for a new jury
panel. The trial court denied the motions. Given the
circumstances of this case, we independently review the record
to determine whether it supports an inference that the
prosecutor excused a juror on a discriminatory basis. (Maj. opn.,
ante, at pp. 26–27.)
I would hold that Hazlett made a prima facie showing of
unlawful discrimination. In considering the relevant
circumstances, the record supports an inference (all that is
required to establish a prima facie case) that the prosecutor
struck Prospective Juror A.E., the sole remaining Black juror,
because of her race. (People v. Rhoades (2019) 8 Cal.5th 393,
429 [explaining certain types of evidence that are “ ‘especially
relevant’ ”]; see also Batson, supra, 476 U.S. at p. 97 [relevant
circumstances include a “ ‘pattern’ of strikes against black
jurors” and “the prosecutor’s questions and statements during
voir dire examination”].)
Four circumstances “loom large” (Flowers, supra, 588 U.S.
at p. 285) in assessing this first stage Batson/Wheeler challenge:
(1) the prosecutor removed the last remaining juror of Hazlett’s
minority race; (2) the prosecutor used his first peremptory strike
to achieve an all-White jury and immediately accepted the jury

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PEOPLE v. HAZLETT
Evans, J., dissenting

as constituted; (3) the case was highly racially fraught, involving
multiple interracial crimes, a theory Hazlett was motivated by
racial hatred, prosecutorial remarks that evoked offensive racial
imagery, and a comparison to the trial of O.J. Simpson; and
(4) the racial elements present in this case pose a special risk of
discriminatory animus — a Black male defendant, a White
female rape and homicide victim, four additional White female
rape victims, an all-White jury, and a capital trial in which
jurors decide whether to impose the penalty of death. In light of
these circumstances, Hazlett established a prima facie case of
discrimination that required the trial court to solicit and
evaluate the prosecutor’s proffered reasons for striking the
challenged juror.
First, in striking Prospective Juror A.E., the prosecutor
removed the last remaining juror of Hazlett’s race. This fact
alone has been found sufficient to establish a prima facie case of
discrimination. (See, e.g., U.S. v. Chalan (10th Cir. 1987)
812 F.2d 1302, 1314 [striking the last remaining juror of
defendant’s race is sufficient to raise an inference of
discrimination]; Reynolds v. State (Fla. 1991) 576 So.2d 1300,
1302 [“[t]he act of eliminating all minority venire members, even
if their number totals only one” created a strong likelihood of a
racially discriminatory motive that “shifts the burden to the
state to justify the excusal”]; Hollamon v. State (Ark. 1993)
846 S.W.2d 663, 666 [“defendant must first establish a prima
facie case of purposeful discrimination, which the appellant
clearly did in this case when he pointed to a peremptory strike
by the state dismissing the sole black person on the jury”];
Highler v. State (Ind. 2006) 854 N.E.2d 823, 827 [removal of the
only Black juror on the panel “ ‘raise[s] an inference that the
juror was excluded on the basis of race’ ”]; Commonwealth v.

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PEOPLE v. HAZLETT
Evans, J., dissenting

Harris (Mass. 1991) 567 N.E.2d 899, 903 [“a party contesting
the use of a single peremptory challenge can make a prima facie
showing rebutting the presumption that the challenge was
properly used simply by demonstrating that he is a member of a
constitutionally protected, discrete community group, and that
the only prospective juror of the same group has been
peremptorily challenged”]; City of Seattle v. Erickson (Wn. 2017)
398 P.3d 1124, 1126 [adopting “the bright-line rule” “that the
peremptory strike of a juror who is the only member of a
cognizable racial group constitutes a prima facie showing of
racial discrimination requiring a full Batson analysis by the
trial court”]; People v. Portley (Colo.App. 1992) 857 P.2d 459, 464
[“we adopt the rule announced in [Chalan] and hold that if no
members of a cognizable racial group are left on a jury as a
result of the prosecutor’s exercise of peremptory challenges” a
defendant has made a prima facie case of discrimination].)
While other courts have adopted a per se rule that striking
the last remaining juror of a defendant’s race is unlawful, this
court has not yet had occasion to consider such a rule. However,
we have repeatedly recognized the relevance of whether a
juror — or alternate juror — of a particular race remains on the
impaneled jury. (See, e.g., People v. Reed (2018) 4 Cal.5th 989,
1000 [“While acceptance of one or more black jurors by the
prosecution does not necessarily settle all questions about how
the prosecution used its peremptory challenges, these facts
nonetheless help lessen the strength of any inference of
discrimination that the pattern of the prosecutor’s strikes might
otherwise imply”]; People v. Garcia (2011) 52 Cal.4th 706, 747–
748 [“ultimate inclusion on the jury of members of the group
allegedly targeted by discrimination indicates ‘ “good faith” ’ in
the use of peremptory challenges, and may show under all the

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PEOPLE v. HAZLETT
Evans, J., dissenting

circumstances that no Wheeler/Batson violation occurred”]; see
also People v. Battle (2021) 11 Cal.5th 749, 777 (Battle) [the
retention of alternates lessens any inference of discrimination].)
In addition to sister states that have adopted a per se rule,
there is ample federal case law recognizing the significance of
striking the last remaining juror of a defendant’s race. For
example, in Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943, the
Ninth Circuit held the defendant, an African-American man,
made a prima facie case of discrimination where the prosecution
struck the only Black prospective juror. (Id. at pp. 955–956
[vacating the district court’s denial of the defendant’s writ of
habeas corpus and remanding for a third-step determination].)
The court reasoned that while striking the only and last
remaining Black juror may not alone establish a prima facie
case, it was that factor — along with the prosecutor’s less-
favorable rating for the Black prospective juror than her White
counterparts, who had comparable hesitancy and opposition to
the death penalty — that raised an inference of discrimination.
(Ibid.) Similarly, in U.S. v. Collins (9th Cir. 2009) 551 F.3d 914,
the Ninth Circuit held the defendant made a prima facie case of
discrimination where the prosecution struck the only Black
prospective juror. (Id. at pp. 921–923.) As in Crittenden, the
Collins court reasoned that, while striking the only and last
remaining Black juror may not by itself establish a prima facie
case, it was that factor along with a comparative juror analysis
that established a prima facie case. (Id. at pp. 920–921.) The
majority decision today downplays the significance of striking
the last juror of a defendant’s race in the totality of the
circumstances analysis.
Second, the prosecutor used his first peremptory strike to
effectively remove all Black jurors from the venire and

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PEOPLE v. HAZLETT
Evans, J., dissenting

immediately accepted an all-White jury. While recognizing this
factor as significant, today’s opinion fails to attribute proper
significance to the prosecutor’s conduct. (See maj. opn., ante, at
pp. 28–29; Battle, supra, 11 Cal.5th at p. 777 [the fact that the
prosecutor did not strike the challenged juror “right away, but
instead passed on her for several rounds before striking her . . .
tends to suggest that [her] later challenge was not based on
race”].) The prosecutor used his first peremptory strike against
the sole remaining African-American prospective juror. The
prosecutor then proceeded to accept the jury as constituted. It
was only after defense counsel subsequently exercised several
peremptory strikes that the prosecutor struck three additional
prospective jurors. Ultimately, the impaneled jury, including
the alternate jurors, was all-White. The prosecutor’s conduct
raised an inference of a discriminatory motive: to achieve an all-
White jury. The jury’s all-White composition “serves as
standalone evidence to inform our step-one analysis,” and it is
“particularly germane where the case was racially charged.”
(Battle, supra, 11 Cal.5th at p. 774.)
Third, this case was highly racially fraught and “the
salient racial issues at play are significant.” (Battle, supra,
11 Cal.5th at p. 774.) Given the nature of the case, the record
reveals case-specific reasons why the prosecutor would be
motivated to exclude a particular class of jurors and seek an all-
White jury. (See People v. Williams (1989) 48 Cal.3d 1112, 1129
[“the social, racial and sexual overtones [of the case] were
precisely the kind which could ‘most effectively prejudice’
defendant”]; see Powers v. Ohio (1991) 499 U.S. 400, 416
(Powers) [“Racial identity between the defendant and the
excused person might in some cases be the explanation for the
prosecution’s adoption of the forbidden stereotype, and if the

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PEOPLE v. HAZLETT
Evans, J., dissenting

alleged race bias takes this form, it may provide one of the easier
cases to establish both a prima facie case and a conclusive
showing that wrongful discrimination has occurred”].) During
jury selection, the jurors were frequently asked whether
Hazlett’s race would impact their ability to be fair. The
prosecution’s theory was that Hazlett was motivated by racial
animus towards White women, and the prosecutor introduced
evidence of prior sexual assaults of White women. This theory
was reinforced throughout the trial, exacerbating the risk of
racial prejudice presented by this case.
Reinforcing the racialized nature of this case, the
prosecutor evoked offensive racial imagery and themes. For
example, the prosecutor asked an expert whether Hazlett was
“irresistibly impelled to savagely rape women,” described the
prior sexual assaults as Hazlett having “savagely” raped four
women, and described the capital offense as Hazlett having
“savagely” raped and murdered the victim. (See Bennett v.
Stirling (D.S.C. 2016) 170 F.Supp.3d 851, 866 [granting capital
defendant’s petition for writ of habeas corpus where the
prosecutor made “multiple statements clearly calculated to
excite the jury with racial imagery and stereotypes” involving
“racial issues [such] as the Petitioner’s interracial sexual
relations, [and] a crime victim being chased by black savages”].)
And in closing argument, the prosecutor compared Hazlett’s
case to O.J. Simpson’s case. (See dis. opn. of Liu, J., ante, at pp.
3–4.) Needless to say, “[r]ace was a recurrent theme throughout
the capital [trial], a theme designed to implant both racial fears
and prejudices in the mind of the jury by playing upon ancient
staples of racial disparagement and discrimination.” (Bennett v.
Stirling (4th Cir. 2016) 842 F.3d 319, 327 [affirming the district
court’s grant of habeas corpus relief].) Ultimately, I disagree

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PEOPLE v. HAZLETT
Evans, J., dissenting

with the majority’s insistence that there are race-neutral
reasons so apparent that they would dispel any inference of
racial discrimination.
Fourth, the racial elements of this case carry a special risk
of discriminatory animus. The “ ‘[r]acial identity between the
defendant and the excused person,’ ” as well as “the victim and
the majority of remaining jurors, raises heightened concerns
about whether the prosecutor’s challenge was racially
motivated.” (People v. O’Malley (2016) 62 Cal.4th 944, 980.)
Hazlett, a Black man, was charged with raping and killing a
White woman. Like Hazlett, the stricken juror was African
American. Like all of the members of the impaneled jury, the
victim was White. These racial elements are highly relevant.
(See People v. Holt (1997) 15 Cal.4th 619, 660 [“[A]dequate
inquiry into possible racial bias is . . . essential in a case in which
an African-American defendant is charged with commission of a
capital crime against a White victim”].) Hazlett was charged
with capital murder — where disparity in sentencing based on
the same racial factors present in this case is most pronounced
in our criminal justice system. (See McCleskey v. Kemp (1987)
481 U.S. 279, 356 (dis. opn. of Blackmun, J.) [“black-
defendant/white-victim cases advanced to the penalty trial at
nearly five times the rate of the black-defendant/black-victim
cases . . . and over three times the rate of white-defendant/black-
victim cases”]; see also Walker v. Georgia (2008) 555 U.S. 979,
981 (stmt. of Stevens, J.) [McCleskey “make[s] it abundantly
clear that there is a special risk of arbitrariness in cases that
involve black defendants and white victims”].)
Additionally, Black male defendants are
disproportionately sentenced to higher penalties for the type of
capital offense at issue in this case. (See Note, A Survey of the

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PEOPLE v. HAZLETT
Evans, J., dissenting

History of the Death Penalty in the United States (2015)
49 U.Rich. L.Rev. 693, 707 [discussing a study showing Black
defendants were sentenced to death in nearly 100 percent of
cases involving the rape and murder of a White victim, whereas
all defendants convicted of such offenses were sentenced to
death in 70.8 percent of such cases]; see also Baker, Once a
Rapist? Motivational Evidence and Relevancy in Rape Law
(1997) 110 Harv. L.Rev. 563, 594 [“Black men who rape white
women receive much greater penalties than do other men who
rape white women”].) “Because of the range of discretion
entrusted to a jury in a capital sentencing hearing, there is a
unique opportunity for racial prejudice to operate but remain
undetected . . . . [¶] The risk of racial prejudice infecting a
capital sentencing proceeding is especially serious in light of the
complete finality of the death sentence.” (Turner v. Murray
(1986) 476 U.S. 28, 35; see People v. Bankston (2026) 19 Cal.5th
786, 911–914 (conc. opn. of Evans, J.) [discussing the impact of
appeals to racial bias, particularly in capital trials].)
These circumstances, taken together, more than establish
an inference of racial bias. As such, I address the Attorney
General’s contention that there are “nondiscriminatory reasons
for a peremptory challenge that are apparent from and ‘clearly
established’ in the record [citations] and that necessarily dispel
any inference of bias.” (Scott, supra, 61 Cal.4th at p. 384.) In
considering the totality of the circumstances, a reviewing court
may consider a readily apparent race-neutral reason from the
record “only when these reasons ‘necessarily dispel any
inference of bias,’ such that ‘ “there is no longer any suspicion
. . . of discrimination in those strikes.” ’ ” (Battle, supra,
11 Cal.5th at p. 773.)

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PEOPLE v. HAZLETT
Evans, J., dissenting

While neither the court nor the prosecutor articulated any
race-neutral reasons, the Attorney General posits that
Prospective Juror A.E. was properly removed based on her
“reservations regarding the use of the death penalty as a tool of
revenge, as well as about whether . . . DNA evidence might
prove [Hazlett’s] innocence.”
Prospective Juror A.E. described herself as a 17-year
resident of Kern County who had attended college and worked
as an administrative assistant for over seven years. Prospective
Juror A.E. claimed no hardships. While she had a brother-in-
law who went to jail for drugs and allegedly sexually assaulted
his daughter, she was not aware of the circumstances and
recounted those matters “were handled fine.” She “ha[d] no
attitude” generally toward law enforcement officers and never
knew someone who was falsely accused of a crime, or a family
member involved in a lawsuit.
Regarding her opinions on the death penalty, Prospective
Juror A.E. stated that she felt it was “used too often” and that
“everybody wants to get even with everyone.” She also wrote,
“People are accused and then come to find out they were
innocent and released.” Asked whether she felt the death
penalty was used too often, seldom, randomly, or appropriately,
Prospective Juror A.E. responded: “Too seldom [sic]. People are
accused [and] then come to find out they were innocent [and]
released.” She indicated she could be a fair and impartial juror.
Prospective Juror A.E. confirmed she would not refuse to impose
the death penalty based on any opinion she had of the death
penalty. She confirmed she could reach either a death or life
without the possibility of parole verdict based on the evidence.
She explained to the trial court that her concerns about an
individual possibly being exonerated in the future related to the

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PEOPLE v. HAZLETT
Evans, J., dissenting

individual’s innocence being proved by “DNA results” and noted
“[t]hat’s it.” She stated that this concern would not influence
her in this case if she were tasked with making the penalty
decision. She confirmed she was not biased in favor of the death
penalty, nor in favor of life imprisonment without the possibility
of parole. A.E. confirmed that notwithstanding her concerns as
expressed on her questionnaire, she could fairly consider and
weigh all the evidence presented and vote for death if she
determined it to be the appropriate penalty.
During the prosecutor’s voir dire, Prospective Juror A.E.
confirmed her belief “that it has happened that people have been
sent to death row and then DNA has proved their innocence.”
The prosecutor asked if A.E. believed that an innocent person
being sent to death row has happened in California, and A.E.
replied affirmatively. The prosecutor stated, “If you believe that
to be the case, then you must believe that it could happen in this
case” and A.E. replied affirmatively. When the prosecutor asked
Prospective Juror A.E. whether “having no reasonable doubt
with regard to [Hazlett]’s guilt” in the guilt phase she could vote
for death “if [she] thought it was an appropriate case,” she said,
“Probably not.” The prosecutor then asked, “And the reason that
you could not sentence him to death, even though you believed
beyond a reasonable doubt that he committed the crime, because
you’d be frightened that he, nevertheless, might be innocent and
the death penalty is final?” A.E. responded, “Yes.” The
prosecutor continued, “[B]ut doesn’t that mean — since you’d
always be worried that the defendant that you found guilty
might somehow not be guilty, doesn’t that mean that you could
never vote to sentence him to death?” A.E. responded, “No. I
would just listen to the evidence and then go from that — from
the evidence as far as finding him guilty or not.” A.E. explained

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PEOPLE v. HAZLETT
Evans, J., dissenting

that during any penalty trial she could vote for death if
warranted based on the evidence but added that it would be
difficult to do so because “we, as humans, always will have that
in the back of our mind,” that is, the thought that “I might be
wrong” about the defendant’s guilt.
The prosecutor followed up with additional questions
about the possible appropriate use of the death penalty: “Have
you heard of cases, you know, criminal cases that maybe you
read about or watched on TV or heard about in the news where
you heard about it and you said to yourself you know what, if
that’s what happened, death is the appropriate penalty?” A.E.
responded, “Well, like humans, we all have thoughts like that,
yes.” She affirmed that “if [her] reason told [her] that the
appropriate penalty in this case was death, [she] could . . . look
the defendant in the eye and render a verdict of death.”
The prosecutor posed this final question to Prospective
Juror A.E.: “And some people would not want to be put in the
position of making a life-or-death choice, say it’s too emotionally
rending, it’s too difficult; and some people might say you know
what, even though my reason tells me that the appropriate
penalty is death, there’s nobody I have to look in the eye . . . so
I’m just going to take the easy way out and vote for life without
parole, even though that’s not what I think the penalty should
be. Is there any chance you might be such a person?” A.E.
answered, “No.”
Neither side challenged Prospective Juror A.E. for cause.
Given the particular circumstances of this case, the record
does not establish a race-neutral reason for the prosecutor to
strike Prospective Juror A.E. that necessarily dispels any
inference of racial discrimination. The Attorney General

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PEOPLE v. HAZLETT
Evans, J., dissenting

represents that A.E. had reservations about the use of the death
penalty as a “tool of revenge.” But A.E. did not use those words
and only expressed a sentiment that “everyone wants to get even
with everyone.” A.E.’s apprehension about the death penalty
concerned the risk of executing someone who is later exonerated.
To be sure, we have previously held that reluctance and
equivocation in imposing the death penalty are race-neutral
reasons that can justify striking a prospective juror. (See, e.g.,
People v. Winbush (2017) 2 Cal.5th 402, 436; People v. Lomax
(2010) 49 Cal.4th 530, 572; People v. Ledesma (2006) 39 Cal.4th
641, 677–678.)2 We have also determined that “significant

2
While general reluctance to impose the death penalty was
considered a race-neutral reason for using a peremptory
challenge at the time of Hazlett’s trial, views have since evolved.
In 2021, the Legislature enacted Assembly Bill No. 3070 (2019–
2020 Reg. Sess.), which added Code of Civil Procedure section
231.7 and altered the procedures for raising and evaluating
claims of improper discrimination during jury selection. For all
trials in which jury selection begins on or after January 1, 2022,
several justifications that have served as proxies for excluding
potential jurors of color will be deemed presumptively invalid
including a distrust of the criminal justice system. (Code Civ.
Proc., § 231.7, subd. (e)(1) [“distrust of or having a negative
experience with law enforcement or the criminal legal system”].)
Expressing distrust in imposing a death sentence for fear of
wrongfully convicting and executing someone is an example of
distrust in the criminal legal system. Such views no longer
justify striking a juror “unless the party exercising the
peremptory challenge can show by clear and convincing
evidence that an objectively reasonable person would view the
rationale as unrelated to a prospective juror’s race, ethnicity,
gender . . . .” (Code Civ. Proc., § 231.7, subd. (e).) Thus, it
appears that reluctance to impose the death penalty stemming
from distrust in the efficacy of convictions is no longer a valid,
race-neutral ground for excusal.

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PEOPLE v. HAZLETT
Evans, J., dissenting

reservations about the death penalty” can amount to a race-
neutral reason that dispels any inference of bias. (See Battle,
supra, 11 Cal.5th at p. 782.) Yet in making that determination,
our inquiry remains focused on the totality of the circumstances,
accounting for the individual circumstances of each case.
In this case, Prospective Juror A.E. expressed a degree of
apprehension in imposing the death penalty, mainly based on
concerns of executing an innocent person. Two factors render
A.E.’s apprehension of nominal significance in this case:
(1) A.E.’s apprehension was tempered and largely concerned a
circumstance — lack of DNA evidence — that would not arise in
this case; and (2) A.E.’s apprehension about imposing the death
penalty was shared amongst seated White jurors. Ultimately, I
am unpersuaded that this reason necessarily dispels an
inference of racial discrimination.
Prospective Juror A.E.’s apprehension was relatively
tempered and largely concerned a circumstance not particularly

Notably, recent scholarship and studies illuminate that
reluctance to impose capital punishment is not race neutral. In
practice, excusals based on reluctance to impose the death
penalty — expressed by prospective jurors or anticipated by
prosecutors based on the prospective juror’s race —
disproportionately remove African Americans from serving as
jurors. African Americans oppose capital punishment at higher
rates than Whites. (Haney et al., The Continuing Unfairness of
Death Qualification: Changing Death Penalty Attitudes and
Capital Jury Selection (2022) 28 Psychol. Pub. Pol’y. & L. 1, 2
[“The fact that African Americans, especially, have historically
been opposed to capital punishment in greater numbers than
other groups [citations] accounts for their disproportionate
exclusion in the death qualification process [citation],
corroborated more recently in a smaller (county-wide) California
jurisdiction”].)

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PEOPLE v. HAZLETT
Evans, J., dissenting

salient to this case. Her questionnaire reflected concerns
regarding the risk of wrongful convictions — specifically that
people who are sentenced to death have later been exonerated
by DNA evidence. Rather than reflecting a valid, race-neutral
reason for a peremptory strike, A.E.’s statements appear to be
thoughtful remarks based upon the fact that wrongful
convictions have occurred in the past. 3 At one point, she
remarked that she could “probably not” return a death verdict
based on concerns of executing an innocent person. In response
to questions from the court, defense counsel, and the
prosecution, however, Prospective Juror A.E. repeatedly
maintained she could impose the death penalty based on the
evidence establishing guilt.
We must consider Prospective Juror A.E.’s responses in
context, not in isolation. (Flowers, supra, 588 U.S. at p. 315
[courts must evaluate the use of peremptory strikes “in the
context of all the facts and circumstances” not “in isolation”]; id.
at p. 314 [noting the challenged strike “might be deemed
permissible” “[i]n a different context”].) A.E.’s concern
regarding the execution of an innocent individual did not
suggest that she had “concerns about whether the death penalty
should be imposed at all.” (Battle, supra, 11 Cal.5th at p. 780.)

3
According to the Death Penalty Information Center, there
have been 203 exonerations of death row prisoners in the United
States. (Death Penalty Information Center, Innocence
Database (2026) <https://deathpenaltyinfo.org/database/
innocence> [as of Aug. 27, 2026]); all Internet citations in this
opinion are archived by year, docket number and case name at
<https://courts.ca.gov/opinions/cited-supreme-court-opinions>.)
Out of the 203 exonerations, 34 involved DNA evidence. Eight
exonerees had been convicted in California and 109 exonerees
were Black men.

20
PEOPLE v. HAZLETT
Evans, J., dissenting

This type of apprehension is distinct from the challenged juror
in Battle, supra, 11 Cal.5th 749. A.E.’s concern is reflective of
society’s interest in ensuring the right individual is identified as
the perpetrator of a crime — particularly of a capital crime.
(Wade v. Brady (D.Mass. 2006) 460 F.Supp.2d 226, 249 [“In
accordance with the State’s interest in doing justice, exculpatory
DNA results may allow the state to both free the innocent and
convict the guilty. Not only have 183 individuals been
exonerated thus far [in 2006] by DNA evidence, but almost 30%
of the exonerations have led to the apprehension of the real
perpetrator”]; The Adequacy of Representation in Capital Cases,
Hearings before Sen. Com. on Judiciary, Subcom. on
Constitution, 110th Cong., 2d Sess., at p. 84 (2008), statement
of William Sessions [“We should always remember that when
the wrong person is convicted, the real perpetrator remains free,
perhaps to commit more crimes”].)
In contrast, the challenged juror in Battle described the
death penalty as cruel and inhumane, and she “signal[ed] she
may have had more than one reason for her concerns.” (Battle,
supra, 11 Cal.5th at p. 780.) We explained the challenged
juror’s use of those “powerful words” evinced she “had concerns
about whether the death penalty should be imposed at all.”
(Ibid.) We also explained that the challenged juror’s “death
penalty reservations were serious,” as “she had an inherent
discomfort with the death penalty.” (Ibid.)
In considering whether the prosecution was so obviously
motivated by apparent race-neutral reasons, it is particularly
relevant that, in this case, lack of DNA evidence was not a
factor. Prospective Juror A.E.’s apprehension indicated she
would have concerns voting to execute someone absent DNA
evidence. Here, however, there was significant DNA evidence

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PEOPLE v. HAZLETT
Evans, J., dissenting

establishing that Hazlett committed the crime. Thus,
Prospective Juror A.E.’s concern that DNA evidence would later
exonerate an executed prisoner was not particularly pertinent
given the DNA evidence supporting the prosecution’s case. This
concern does little to dispel the inference of racial
discrimination. This is particularly true in light of the
prosecution’s willingness to accept White jurors who
equivocated about the death penalty.
Next, Hazlett points out that other seated jurors shared
similar apprehensions. “Although such [comparative juror]
analysis is not required at the prima facie stage, . . . it can
sometimes ‘aid in determining whether the reasons we are able
to identify on the record are ones that help to dispel any
inference that the prosecution exercised its strikes in a biased
manner.’ ” (Battle, supra, 11 Cal.5th at p. 782.) In this case, the
fact that seated, White jurors shared Prospective Juror A.E.’s
apprehensions about the death penalty tends to undermine the
contention that this race-neutral reason necessarily dispels the
inference of racial bias.
Here, like Prospective Juror A.E., several White seated
jurors expressed apprehensions about the death penalty and a
general desire to invoke such punishment only if presented with
overwhelming evidence. For instance, Juror No. 125130
expressed a concern that juries may come to incorrect
conclusions or wrongfully convict someone, stating, “There’s
always misconceptions, you know. Lines crossed. There has
[sic] been cases where they have to come before a court and do
all of this and they’re actually innocent.” Since Prospective
Juror A.E. voiced concerns similar to those voiced by White
seated jurors, Prospective Juror A.E.’s apprehension to impose

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PEOPLE v. HAZLETT
Evans, J., dissenting

the death penalty does not constitute a race-neutral reason that
would dispel an inference of racial discrimination.
The majority and the Attorney General maintain there
were differences between Prospective Juror A.E.’s expressed
apprehensions and those of the seated jurors. But to the extent
there were any differences in the responses, “th[ose] differences
seem far from significant” in light of the “strong similarities.”
(See Miller-El v. Dretke (2005) 545 U.S. 231, 247 (Miller-El)
[where there were “strong similarities” and “some differences”
in views of a stricken Black venireperson and similarly situated
non-Black jurors, “the differences seem far from significant”].)
Specifically, the majority makes much of the fact that Juror No.
125130’s concern was expressed following a question that was
not specifically about the death penalty. (Maj. opn., ante, at
p. 44, fn. 21.) But this is a first stage case where the question is
merely whether there was an inference of racial discrimination.
Prospective Juror A.E.’s concerns were similar enough to those
voiced by White seated jurors that we should not ignore the trial
court’s failure to require the prosecutor to provide reasons for
striking her. Since the trial court acquiesced to the prosecutor’s
refusal to explain why it struck A.E., Hazlett had no opportunity
to highlight the similarities in the expressed concerns. Nor did
he have an opportunity to question why the prosecutor was
unconcerned by the White jurors who shared comparable views,
which the prosecutor could have then addressed. (See Williams
v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1110 [vacating the
district court’s denial of defendant’s petition for writ of habeas
corpus, and concluding the defendant “cannot be charged, prior
to the prosecutor’s explanation of his challenges, with
developing a record that might refute the prosecutor’s possible
explanations”].) Thus, we cannot assume that the prosecutor

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PEOPLE v. HAZLETT
Evans, J., dissenting

removed Prospective Juror A.E. because of this asserted
apprehension since White jurors who expressed similar
apprehensions remained on the jury. (Wade v. Terhune, supra,
202 F.3d at p. 1198 [the prosecutor permitting other jurors
“ ‘similarly situated’ ” to the challenged prospective juror to
remain on the jury “allow[s] us to infer racial bias and would
thus support [a] prima facie case”]; see also Lewis v. Lewis (9th
Cir. 2003) 321 F.3d 824, 830 [reversing with directions to grant
the defendant’s writ of habeas corpus petition, as proffered
reasons for an African-American prospective juror’s removal
were not applied to seated jurors]; Turner v. Marshall (9th Cir.
1997) 121 F.3d 1248, 1253–1254 [vacating the district court’s
denial of habeas corpus relief, on the grounds the prosecutor’s
proffered reason in striking an African-American prospective
juror was not equally applied to a White juror].)
In short, the differences noted by the majority and the
Attorney General did not absolve the trial court of its duty to
inquire into the prosecutor’s actual reasons for striking
Prospective Juror A.E. and to evaluate those reasons. To hold
otherwise would effectively compromise our role in “vigorously
enforc[ing] and reinforc[ing] [Batson], and guard[ing] against
any backsliding.” (Flowers, supra, 588 U.S. at p. 301.)
In sum, considering all the relevant circumstances, the
record supports an inference that the prosecutor impermissibly
removed Prospective Juror A.E. because of her race. In a highly
racially fraught case, the prosecutor used his first peremptory
challenge to remove the sole remaining African-American
prospective juror and then immediately accepted the jury as
constituted. Prospective Juror A.E. expressed apprehension
about executing a person who might later be exonerated by DNA
evidence. Such apprehension does not necessarily dispel the

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PEOPLE v. HAZLETT
Evans, J., dissenting

inference of racial discrimination because it is a concern that
reflects society’s interest in exonerating the innocent and
convicting the guilty, was shared by several White seated jurors,
and was inapplicable in this case given the ample DNA evidence
establishing Hazlett’s guilt. Given the totality of the
circumstances, Hazlett demonstrated a prima facie case of racial
discrimination.
II.
PEREMPTORY CHALLENGES & THE RACIAL JUSTICE ACT
The RJA’s primary command is that “[t]he state shall not
seek or obtain a criminal conviction or seek, obtain, or impose a
sentence on the basis of race, ethnicity, or national origin.”
(§ 745, subd. (a).) To implement this prohibition, the statute
provides four methods, including showing that “an attorney in
the case . . . exhibited bias or animus towards the defendant
because of the defendant’s race, ethnicity, or national origin,
whether or not purposeful.” (§ 745, subd. (a)(2).)
The facts of this case provided fertile ground for the
operation of either conscious or unconscious bias “towards the
defendant.” (§ 745, subd. (a)(2).) As the majority concedes,
there were “ ‘salient racial issues in the case [that] raise[]
concerns that warrant careful consideration’ ” and the “ ‘racially
charged’ ” facts provided the prosecutor “ ‘with a plausible
motive to strike Black prospective jurors on the impermissible
“assumption or belief that” they “would favor” [the defendant]
solely because of their shared race.’ ” (Maj. opn., ante, at pp. 32–
33.) The majority’s observations are well-taken. As discussed
above, this case involved the racially motivated rape and
murder of a White woman by a Black man, in which the
prosecutor referred to the “O.J. Simpson defense” to undermine

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PEOPLE v. HAZLETT
Evans, J., dissenting

the defense. (See maj. opn., ante, at pp. 150–152 [finding error
harmless even assuming that the prosecutor’s argument
concerning the “O.J. Simpson defense” violated the RJA]; see
also dis. opn. of Liu, J., ante, at pp. 3–4 [arguing that the
prosecutor’s comments concerning the O.J. Simpson case during
argument violated the RJA].) It’s difficult to conceive of a case
with greater racial charge.
Although conceding the prosecutor certainly had a
“ ‘plausible motive’ ” (maj. opn., ante, at p. 32) to strike the only
African-American juror, the majority finds no possibility of an
RJA violation. In support of this interpretation, it makes two
central arguments.
First, the majority suggests that even if the prosecutor
acted on a forbidden race-based motive, his conduct was not bias
“directed toward the defendant and by reason of the defendant’s
race” but instead was bias towards the stricken juror. (Maj.
opn., ante, at p. 153.) In the majority’s telling, the prosecutor
here could have formulated a plan — based on the defendant’s
race and the racially explosive facts of the crime — to bolster his
chances at securing a conviction and death sentence by
constructing an all-White jury through race-based peremptory
challenges. Yet, under the majority’s logic, by doing so, the
prosecutor somehow was not exhibiting bias “towards the
defendant” based on the defendant’s race. The majority holds
that the only possible bias in this scenario was towards the
stricken juror.
This argument is meritless. It hinges on a cramped and
unsupported view of what constitutes bias “towards the
defendant.” (§ 745, subd. (a)(2).) No one, not even Hazlett, has
suggested that the prosecutor harbored animus “towards” Black

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PEOPLE v. HAZLETT
Evans, J., dissenting

people generally or the stricken juror specifically. The
prohibition of discriminatory behavior targeted by
Batson/Wheeler, a doctrine focused on intentional
discrimination, is not an effort to “brand the prosecutor a liar or
a bigot.” (Gutierrez, supra, 2 Cal.5th at p. 1183 (conc. opn. of
Liu, J.).) Prosecutors rely on prohibited racial stereotypes not
necessarily out of animosity towards any particular group or
juror, but to secure a perceived tactical advantage. (See
Alschuler, The Supreme Court and the Jury: Voir Dire,
Peremptory Challenges, and the Review of Jury Verdicts (1989)
56 U.Chi. L.Rev. 153, 172 [“The Court in Swain [v. Alabama
(1965) 380 US 202] told prosecutors that they might lawfully
exclude blacks from a jury for trial-related reasons; Batson
informed them that this tactical exclusion was no longer
permissible”].) Empirical analysis reflects that there may be
some truth in the racial stereotyping that overzealous
prosecutors, impermissibly, have relied upon at times. For
example, as a purely statistical matter, there is evidence that
“striking potential black jurors gives prosecutors a strategic
advantage when attempting to convict a black defendant who
killed a white victim.” (Hatoum, Injustice in Black and White:
Eliminating Prosecutors’ Peremptory Strikes in Interracial
Death Penalty Cases (2018) 84 Brook. L.Rev. 165, 176; see also
ante, fn. 2.) Thus, relying on racial stereotypes when selecting
a jury is not inevitably associated with bare animus towards the
targeted group or its members, but may reflect a strategic choice
to secure the desired verdict.
On the other hand, failing to fairly probe specific jurors’
characteristics and instead relying on racial stereotyping is a
form of discrimination towards the targeted jurors themselves.
(See Powers, supra, 499 U.S. at p. 410 [“Race cannot be a proxy

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PEOPLE v. HAZLETT
Evans, J., dissenting

for determining juror bias or competence”].) But, in cases such
as this one, it is simultaneously an unlawful effort to “seek,
obtain, or impose a sentence on the basis of [the defendant’s]
race.” (§ 745, subd. (a).) When a prosecutor strikes a juror
based on a discriminatory belief that any juror who shares a
racial identity with a defendant cannot be impartial, or to make
implicitly discriminatory arguments that might be more readily
accepted by an all-White jury, this is necessarily bias “towards
the defendant because of the defendant’s race.” (§ 745,
subd. (a)(2).)
As the high court explained almost 150 years ago, “how
can it be maintained that compelling a [person of color] to
submit to a trial for his life by a jury drawn from a panel from
which the State has expressly excluded every man of his race,
because of color alone, however well qualified in other respects,
is not a denial to him of equal legal protection?” (Strauder v.
West Virginia (1880) 100 U.S. 303, 309, italics added.) The high
court has expanded the scope of equal protection under Batson
to encompass cases of White defendants complaining of racially
discriminatory peremptories — on the basis of the presence of
discrimination towards Black jurors. (Powers, supra, 499 U.S.
at pp. 410–411.) But this hardly suggests that there is no
discrimination against Black defendants flowing from excluding
Black prospective jurors. (See id. at p. 418 (dis. opn. of Scalia,
J.) [collecting numerous cases in which discriminatory excusal
of Black jurors was held to violate the rights of Black defendants
prior to the recognition of juror-based standing in Powell].) As
the Supreme Court has more recently explained, although
“racial minorities are harmed more generally” by discrimination
in jury selection, defendants themselves are also “harmed, of
course, when racial discrimination in jury selection

28
PEOPLE v. HAZLETT
Evans, J., dissenting

compromises the right of trial by impartial jury.” (Miller-El,
supra, 545 U.S. at p. 237, citing Strauder, at p. 308.)
Further, the majority’s argument, that only conduct by a
prosecutor aimed directly “towards” a defendant is cognizable
under the RJA, sweeps extremely broadly in ways that
undermine the law’s central purpose. For instance, what if a
prosecutor seeking to maximize a Black defendant’s sentence
decides to strike a Black judge under Code of Civil Procedure
section 170.6 on the basis of their discriminatory belief,
unconscious or otherwise, that judges may act more
sympathetically towards a member of their own race? Would
such conduct be noncognizable under the RJA because the
discriminatory action is only “towards” the judge even where the
ultimate target is the Black defendant?
And what if prosecutors’ conscious or unconscious desire
for an all-White jury leads them to utilize other aspects of the
jury selection process in a race-conscious manner? Prosecutors
can just as easily harbor a discriminatory motive in seeking to
preferentially exclude Black jurors for cause or hardship, rather
than through peremptory challenges. (See People v. Johnson
(2019) 8 Cal.5th 475, 528 (dis. opn. of Liu, J.) [discussing “a well-
founded suspicion that the prosecutor here, in evaluating
prospective jurors, targeted only Black jurors for criminal
background checks”]; Battle, supra, 11 Cal.5th at pp. 783–784
[acknowledging that “selective solicitude for minority jurors’
hardship concerns” may be evidence of discrimination].) The
legislative history of the RJA provides no support for insulating
such practices from scrutiny.
The majority’s second argument is more narrow and rests
on more solid footing but is nonetheless ultimately

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PEOPLE v. HAZLETT
Evans, J., dissenting

unpersuasive. Today’s opinion concludes that the legislative
history of the RJA indicates that the Legislature intended to
exclude peremptory challenges from the ambit of the RJA when
it was first enacted. In support of this theory, the majority notes
that the Legislature specifically removed a provision from the
RJA addressing peremptory challenges, in coordination with,
and depending upon, the passage of Assembly Bill No. 3070
(2019–2020 Reg. Sess.) (Assembly Bill 3070). (Maj. opn., ante,
at pp. 154–158.) Any discussion of Legislative intent, however,
must first begin with the uncodified findings. Consideration of
these findings casts considerable doubt on the majority’s
conclusion that the Legislature’s only possible intent in passing
a version of the RJA lacking specific reference in the bill text to
discriminatory peremptory challenges was to exempt them
entirely.
Our prime directive in interpreting the RJA, or indeed any
law, is to construe it to “ ‘ “ ‘ “ ‘effectuate the law’s
purpose.’ ” ’ ” ’ ” (People v. Lopez (2026) 19 Cal.5th 639, 657
(Lopez).) And in understanding legislative intent, “normally we
give [uncodified] legislative findings great weight.” (Martinez v.
Regents of University of California (2010) 50 Cal.4th 1277,
1289.) The legislative findings expressing the RJA’s
fundamental purpose are therefore critical here.4 The

4
Although the majority criticizes our focus upon the RJA’s
uncodified legislative findings (maj. opn., ante, at p. 158), our
cases instruct that the fundamental goal of statutory
construction is to ascertain the intent of lawmakers in order to
effectuate the purpose of the law. (People v. Pieters (1991) 52
Cal.3d 894, 898.) The uncodified findings here unambiguously
articulate the RJA’s purpose. As such, they offer powerful
guidance on how to properly construe its provisions.

30
PEOPLE v. HAZLETT
Evans, J., dissenting

Legislature unequivocally specified that its purposes in enacting
the RJA was “to eliminate racial bias from California’s criminal
justice system” and “to ensure that race plays no role at all in
seeking or obtaining convictions or in sentencing.” (Stats. 2020,
ch. 317, § 2, subd. (i).) As courts have interpreted these findings
and the RJA’s text, “this broad scheme, which covers every stage
of the prosecutorial process — from investigation through
charging, trial, conviction, and sentencing — defendants may
pursue different theories supported by different kinds of proof.”
(Young v. Superior Court of Solano County (2022) 79
Cal.App.5th 138, 164 (Young), italics added.) More recently, the
Legislature exhorted that, “[l]ike a metastatic cancer, racial bias
in one part of a criminal prosecution infects the whole.” (Stats.
2025, ch. 721, § 1, subd. (e), italics added.) Thus, any
construction of the RJA creating a gap that allows a particular
form of racial discrimination to persist should strongly be
disfavored. The particular exemption that the majority opinion
creates — for discriminatory peremptory challenges — is even
more difficult to accept in light of the RJA’s findings expressly
calling out the problem of racial discrimination in the exercise
of peremptory challenges.
In first enacting the RJA, the Legislature observed that
“[m]ore and more judges in California and across the country are
recognizing that current law, as interpreted by the high courts,
is insufficient to address discrimination in our justice system,”
citing cases involving allegations of racial bias in jury selection,
and specifically cases involving the exercise of biased
peremptory challenges. (Stats. 2020, ch. 317, § 2, subd. (c),
citing Turner v. Murray (1986) 476 U.S. 28, 35 [restrictions on
voir dire regarding racial prejudice], People v. Bryant (2019) 40
Cal.App.5th 525, 543–549 (conc. opn. of Humes, P. J.) (Bryant)

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PEOPLE v. HAZLETT
Evans, J., dissenting

[biased peremptory challenges], State v. Saintcalle (2013) 178
Wn.2d 34, 35 [same]; see also Stats. 2020, ch. 317, § 2, subd. (d),
citing People v. Williams (2013) 56 Cal. 4th 630, 652, id. at pp.
699–728 (dis. opn. of Liu, J.).) The RJA’s legislative findings
reference more cases involving discrimination in jury selection
than any other category of cases.
Not only did the Legislature cite cases regarding
discrimination in jury selection generally, but it also specifically
expressed concern about discrimination in the exercise of
peremptory challenges. It explained as an “example” of “racism
clearly infect[ing] a criminal proceeding, under current legal
precedent” that “the legal standards for preventing racial bias
in jury selection are ineffective . . . [and] ‘require[e] a showing of
purposeful discrimination [that] sets a high standard that is
difficult to prove in any context.’ ” (Stats. 2020, ch. 317, § 2,
subd. (c), italics added, quoting Bryant, supra, 40 Cal.App.5th
525, 544 (conc. opn. of Humes, P. J.).) Bryant, as noted, was a
Batson/Wheeler case. As Justice Humes’s concurring opinion
sets forth in some detail, the Batson/Wheeler framework,
particularly given its narrow focus on purposeful
discrimination, had long proven inadequate to prevent
discrimination from infecting the exercise of peremptory
challenges. (Id. at pp. 544–546.) Presiding Justice Humes
specifically highlighted the prospect of reform in this area, citing
Washington’s General Rule 37. (Id. at pp. 548–549.) The most
natural interpretation of the RJA’s findings is that the
Legislature intended the RJA to address discrimination in jury
selection as part of the RJA when it specifically rejected the
overly restrictive “current legal precedent” under
Batson/Wheeler. (Stats. 2020, ch. 317, § 2, subd. (c).)

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PEOPLE v. HAZLETT
Evans, J., dissenting

The majority brushes these findings aside because the
findings “accompanied two options in the bill, one which
addressed discrimination in jury selection and one which did
not, and only the latter became effective.” (Maj. opn., ante, at p.
158.) The majority eschews the legislative findings by simply
assuming the very point it is trying to prove. According to the
majority, express legislative findings that identify peremptory
challenges as a problem to be addressed by the RJA may be
disregarded. The majority believes this is because, by providing
for two versions of the RJA, the Legislature could only have
created one version that “addressed discrimination in jury
selection and one which did not.” (Ibid.)
Although this is one possible reading of the legislative
history, I do not think it is the only one. Nor is it the most
compelling. Aware that these bills had potentially overlapping
provisions, the Legislature maintained the same unitary set of
clear findings but created differing versions of the bill text based
on the contingency of the enactment of Assembly Bill 3070. One
version of the RJA’s bill text included an express provision
referencing peremptory challenges. The other version of the
RJA’s bill text, conditioned on the passage of Assembly Bill 3070
and ultimately enacted, did not. (See Maj. opn., ante, at pp. 156–
157, citing Assem. Bill No. 2542 (2019–2020 Reg. Sess.) §§ 3, 3.5,
7, as amended Aug. 25, 2020.) The majority concludes that, by
enacting the version that did not expressly reference
peremptory challenges in the bill text, the Legislature meant to
exclude them from the scope of the RJA, leaving only Assembly
Bill 3070 to address discriminatory peremptory challenges.
It is undisputable that the Legislature did not wish there
to be a conflict between the RJA and Assembly Bill 3070 in
addressing claims of discriminatory peremptory challenges. But

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PEOPLE v. HAZLETT
Evans, J., dissenting

this could have been a concern about conflicting procedures,
rather than substantive ends. (See Couzens, California Racial
Justice Act of 2020 (Apr. 2024) p. 7 [“To avoid potential
confusion or conflict with Assembly Bill 3070 . . . which in some
ways is inconsistent with the provisions of section 3 of AB 2542
and more fully addresses bias in the exercise of peremptory
challenges, the Legislature enacted section 7 of AB 2542”].) For
instance, Assembly Bill 3070 eliminated the prima facie case,
the procedural point disputed in Hazlett’s Batson/Wheeler
claim, from its framework for addressing discriminatory
peremptory challenges. (See Code Civ. Proc., § 231.7, subd. (c).)
The RJA, however, contains its own distinct framework, which
still retains a prima facie burden. (Pen. Code, § 745, subd. (c).)
It seems entirely plausible that the Legislature did not mean to
exempt discriminatory challenges under the RJA, but instead
merely wished to provide parties and the courts the more
specific procedures detailed in Assembly Bill 3070 for litigating
prospective challenges.
That the Legislature might enact multiple statutes
covering the same subject is not uncommon. (See, e.g., Landeros
v. Flood (1976) 17 Cal.3d 399, 414 [“There is nothing to prevent
the Legislature from imposing a reporting requirement on
physicians in two separate statutes, even if their coverage
apparently overlaps”]; Nestle v. City of Santa Monica (1972) 6
Cal.3d 920, 931, fn. 7 [noting Law Revision Commission’s
observation that, in the context of governmental immunity, “[i]n
some cases, statutes expressing conflicting policies overlap”].)
Indeed, we have an entire doctrine to address situations in
which two statutes addressing the same issue should be resolved
in cases of irreconcilable conflict between the two. (See
Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301,

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PEOPLE v. HAZLETT
Evans, J., dissenting

310 [“[i]f conflicting statutes cannot be reconciled, later
enactments supersede earlier ones [citation], and more specific
provisions take precedence over more general ones”].) By
deleting the subject-specific peremptory challenge provision
from the RJA, the Legislature could well have sought to make
clear that the “more specific” procedural terms of Assembly Bill
3070 should be controlling in cases of peremptory challenges.
(Ibid.) The Legislature likely still intended for the RJA to
substantively forbid discriminatory peremptory challenges. As
Hazlett argues, the Legislature merely “sought to avoid any
possible confusion by allowing the more specific provisions of
[Assembly Bill 3070] to govern in future cases.”
Such a reading more naturally comports with the
overarching purpose of the RJA: to “eliminate racial bias”
entirely from California’s criminal justice system and guarantee
that race plays “no role at all in seeking or obtaining convictions
or in sentencing.” (Stats. 2020, ch. 317, § 2, subd. (i).) An
interpretation of the RJA which excludes discriminatory
peremptory challenges, a major contributor of racial
discrimination in criminal trials, would be inconsistent with a
“broad scheme” which covers “every stage of the prosecutorial
process.” (Young, supra, 79 Cal.App.5th at p. 164.)
As the majority acknowledges (maj. opn., ante, at pp. 158–
159), materials in subsequent legislative history for
amendments to the RJA also support the view that the
originally enacted RJA covered jury selection. Throughout
multiple amendments to the RJA, the legislative history
materials continued to explain that “[f]ar too many Californians
have had their convictions and sentences upheld despite . . . [¶]
. . . [¶] [t]he exclusion of all, or nearly all Black or Latinx people
from serving on a jury.” (Fact Sheet, Assembly Bill No. 256

35
PEOPLE v. HAZLETT
Evans, J., dissenting

(2021–2022 Reg. Sess.) May 24, 2021, p. 1, italics added; Assem.
Com. on Public Safety, Background Information Request for
Assem. Bill No. 1113 (2023–2024 Reg. Sess.) p. 3.) These
materials appear to indicate that the Legislature viewed the
originally enacted and subsequent versions of the RJA in the
same way its original uncodified legislative findings
suggested — as covering jury selection and the discriminatory
exercise of peremptory challenges.
The majority responds that “the materials do not explain
in any way how the specific provisions of the RJA purport to
address discrimination in jury selection.” (Maj. opn., ante, at p.
159.) But there is no doctrine stating that the Legislature needs
to spell out every conceivable application of a law in its
legislative history. The more important question — one which
the majority never answers — is why the legislative history
indicates that the RJA covers the discriminatory removal of
jurors during jury selection if the Legislature intended to
exempt this process from the statute.
At a bare minimum, these materials suggest that an
interpretation that the RJA prohibits discriminatory
peremptory challenges is a reasonable one. The rule for
remedial legislation, such as the RJA, is that it must be
construed broadly to promote its protective purpose. (Lopez,
supra, 19 Cal.5th at p. 657; see also People v. Wilson (2024) 16
Cal.5th 874, 967 (dis. opn. of Evans, J.).) The Legislature
recently has reminded courts that we must expansively, and not
narrowly, construe this landmark legislation:
“Because racial bias in the criminal legal system is
the result of centuries of historical and embedded
racial injustice, it requires bold, concerted, and

36
PEOPLE v. HAZLETT
Evans, J., dissenting

ongoing efforts to undo. ‘The only way out of this
morass — for all of us — is to stare at racial
disparity unblinkingly, and then do what evidence
and experts tell us is required to level the playing
field and march forward together, collectively
striving to achieve true equality for all Americans.’
(Students for Fair Admissions, Inc. v. President and
Fellows of Harvard College (2023) 600 U.S. 181, 408
(dis. opn. of Jackson, J.).) Thus is the aim of
California’s Racial Justice Act and the Legislature’s
intent in passing it. Its provisions should be
interpreted in this light.” (Stats. 2025, ch. 721, § 1,
subd. (f), italics added.)
Unfortunately, the majority ignores the Legislature’s
clarion call to action and, once again, has adopted an unduly
narrow construction of the RJA which will allow cases infected
with implicit bias to stand without remedy. 5

5
Even assuming the RJA applies to the exercise of
peremptory challenges, this does not, as Hazlett suggests,
necessarily demonstrate that the RJA was violated merely
based upon his related claim that Batson/Wheeler was violated.
A separate analysis would be required to determine whether the
prosecutor acted with implicit bias in striking the sole African-
American juror. Although I would conclude such a claim is
cognizable under the RJA, it is unnecessary to address the
merits of this claim as I independently conclude there exists
reversible error based on the Batson/Wheeler violation.
Regardless of the cognizability of peremptory challenges under
the RJA, I note for future cases that the existence of implicitly
discriminatory peremptory challenges may still be relevant to
other claims of discriminatory conduct when considering the
totality of circumstances.

37
PEOPLE v. HAZLETT
Evans, J., dissenting

In our democratic system, the significance of serving on a
jury cannot be understated. “Other than voting, serving on a
jury is the most substantial opportunity that most citizens have
to participate in the democratic process.” (Flowers, supra,
588 U.S. at p. 293.) “The harm from discriminatory jury
selection extends beyond that inflicted on the defendant and the
excluded juror to touch the entire community. Selection
procedures that purposefully exclude black persons from juries
undermine public confidence in the fairness of our system of
justice.” (Batson, supra, 476 U.S. at p. 87.) “[T]he very integrity
of the courts is jeopardized when a prosecutor’s discrimination
‘invites cynicism respecting the jury’s neutrality,’ [citation], and
undermines public confidence in adjudication.” (Miller-El,
supra, 545 U.S. at p. 238.) “Taints of discriminatory bias in jury
selection — actual or perceived — erode confidence in the
adjudicative process, undermining the public’s trust in courts.”
(Gutierrez, supra, 2 Cal.5th at p. 1154.)

38
PEOPLE v. HAZLETT
Evans, J., dissenting

In this racially fraught case, Hazlett established a prima
facie case of discrimination, requiring the trial court to have
evaluated the prosecutor’s reasons in striking Prospective Juror
A.E. Because the passage of time — nearly 20 years — makes
impractical a remand to explore the prosecution’s actual reasons
for striking A.E. (see Snyder, supra, 552 U.S. at p. 486), the
judgment of conviction must be reversed.
EVANS, J.

I Concur:
LIU, J.

39
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Hazlett
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted