PEOPLE v. BOOKER










Filed 1/20/11



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S083899
v. )
)
RICHARD LONNIE BOOKER, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR67502
__________________________________ )

A jury convicted defendant Richard Lonnie Booker of the first degree murders of Tricia Powalka, Amanda Elliot, and Corina Gandara. (Pen. Code, § 187, subd. (a).)[1] It also convicted him of arson (§ 451, subd. (b)) and the attempted murder of Eric S. (§§ 187, 664). It found true special circumstance allegations of multiple murder as to each count of murder (§ 190.2, subd. (a)(3)) and that Corina was murdered during the commission or attempted commission of a rape (§ 190.2, former subd. (a)(17)(iii), now (a)(17)(C)) and a lewd act by force on a child under 14 (§ 190.2, former subd. (a)(17)(v), now (a)(17)(E)).[2] The jury further found that defendant had personally used a handgun and a knife in the commission of these offenses. (§§ 1192.7, subd. (c)(8), (23), 12022, subd. (b), 12022.5, subd. (a).) The jury returned a verdict of death as to each of the victims. The trial court denied the automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death for the three murders and to life with the possibility of parole and determinate prison terms for the remaining counts and allegations.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

1. Prosecution evidence

On August 9, 1995, 19-year-old Tricia Powalka lived in an apartment in the City of Riverside with her six-month-old son, Eric S. Eric’s cousins, 15-year-old Amanda Elliot and 12-year-old Corina Gandara, sometimes visited them and babysat Eric.[3] Amanda’s close friend, 21-year-old Deverick Maddox, twice previously had visited the apartment to socialize with the young women. Although Maddox had spent the night at Powalka’s apartment on a previous occasion, he denied having a sexual interest in any of the young women.
During the evening of August 9, Maddox visited Powalka’s apartment while she was at work; Amanda, Corina, and Eric were there. Amanda suggested Maddox invite a friend over, so he telephoned defendant and invited him over. Maddox left the apartment to meet defendant, who had turned 18 a month before; on the way back, they stopped at a nearby liquor store, purchased two bottles of fortified wine, and returned to the apartment. Powalka arrived at the apartment, and then she, Maddox, and defendant went to a store and bought some more liquor. The two men and three young women spent the evening drinking, talking, dancing, playing dominos, listening to music, and watching a movie; a neighbor was also present for part of the evening. At one point, Powalka retrieved a gun from the bedroom, showed it to the others, and let defendant handle it. Neighbors heard talking, laughter, and music until as late as 3:00 a.m.
At some point, Powalka went to her bedroom to go to sleep. Maddox and defendant fell asleep on the couch in the living room, and Amanda and Corina slept on the floor. Maddox awoke during the night and noticed Amanda was now on the couch and defendant was on the floor.
In the early morning, Maddox was awakened by Amanda screaming. Defendant was standing looking towards the hallway. Amanda entered from the hallway holding her neck, then dropped to her knees. The other females were not in the living room. Defendant was holding a knife and a gun in his hands, which were covered with blood; he was not wearing shoes and his socks also were covered in blood. Amanda told Maddox she had been heading towards the bathroom when defendant “sliced” her. Maddox asked defendant if there had been an accident, and he responded he did it “on purpose,” repeatedly apologized, and said he “killed them.” When Maddox told defendant they had to call the police, defendant said he wasn’t going to go to jail.
Maddox walked down the hallway and saw Corina’s body in a puddle of blood in the bathroom. Powalka’s bloodstained legs were visible in the bedroom. Maddox started to leave the apartment, but defendant thrust the gun at him and said, “Shoot me. I rather you kill me than to go to jail, if you tell them.”
Maddox went home. About 6:00 a.m. on August 10, 1995, a coworker of Maddox’s father arrived at the Maddox household to drive Maddox’s father to work. While there, the coworker saw Maddox enter the house; there was no blood on him. Later that day, Maddox washed his clothes.
At some point in the morning, defendant telephoned Maddox. Defendant told Maddox that while talking to Corina he dropped his knife near her and she accused him of trying to cut her. Defendant said Corina went to tell Powalka, so he followed her.
About 7:30 a.m., the maintenance supervisor for Powalka’s apartment complex received a telephonic page indicating there was a fire in her unit. Receiving no response to his knocks on Powalka’s door, the supervisor opened the door with his master key and discovered Amanda’s body in the living room and Powalka’s body in the bedroom of the smoke-filled apartment. Powalka was wearing no clothes except a pair of shorts and her panties were rolled around her left knee. On the stove was a large deposit of ashes. Firefighters arrived and rescued Eric from his playpen in the bedroom. A firefighter started to drag Powalka’s body from the apartment, but stopped after realizing that she already was dead. A chest of drawers was blocking the bathroom door. Firefighters moved the chest, looked into the bathroom, and saw Corina’s body. Corina’s shorts and panties, like Powalka’s, had been rolled down around her left knee. Corina’s legs were open and there were bloodstains on her thighs consistent with the shape of handprints.
Fire investigator Timothy Rise determined the fire had been deliberately started by placing a nylon bag full of clothes on the stove’s hot burners. There was charring on the kitchen cabinets, the overhead light fixtures, and the stove’s exhaust vent. In Rise’s opinion, the amount of smoke in the apartment would have been lethal.
Powalka’s neighbors told law enforcement personnel that Maddox was one of the male visitors from the night before. Detectives located Maddox, transported him to the police station, and interviewed him there. After initially denying any involvement, Maddox identified defendant as the other visitor.
After locating and then transporting defendant to the police station that night, Riverside Police Detective Ron Sanfilippo advised him of his rights under Miranda v. Arizona (1966) 384 U.S. 436 to remain silent and have counsel present during questioning. Defendant, who had a cut on one of his hands, initially denied involvement in the killings. Defendant told the officers his memory of the events was incomplete and confusing because he had been drinking heavily that night. Defendant acknowledged Maddox had introduced him to the young women and they were “kicking back” and having a party at the apartment. Defendant initially claimed he had left about 3:00 a.m., but revised his story after Sanfilippo told him that they had already spoken to Maddox.
Defendant then claimed he was absent mindedly playing with his knife when Corina accidentally bumped into it. Corina asked defendant why he was trying to stab her and tried to grab the knife, so he “hit” (that is, stabbed) her. Defendant inconsistently claimed he threw Corina into the bathroom and that she ran in on her own accord. Defendant said he locked the bathroom door, but denied blocking it with the chest of drawers.
Defendant provided various explanations for how he killed Powalka. Defendant initially claimed Powalka threatened to shoot him, so he struck her in the neck. Defendant then claimed that when he exited the bathroom Powalka put the gun to his head, so he stabbed her at least twice. Defendant also claimed Powalka tried to shoot him when he threw Corina into the bathroom, so he struck Powalka. At some point, defendant knocked the gun out of Powalka’s hand and picked it up. As Powalka was lying on the ground, defendant removed her shorts.
Defendant admitted that he returned to the bathroom and told Corina to take her shorts off, and that he “kind of helped” her while she was lying on the floor. Defendant admitted he was drunk and did not intend to “make it” with Corina; he alternatively admitted he “might of touched” her “down there,” but also said he only “looked” at her “there.” Defendant recalled striking Corina, perhaps more than once, as she lay on the bathroom floor.
With respect to Amanda, defendant claimed she charged him, so he stabbed her two or three times in the neck and then shot her as she lay on the ground.
Defendant denied deliberately trying to set the apartment on fire, but admitted he may have put a laundry bag on top of the stove and turned on the burner before he left. Defendant denied knowing that Eric was in the apartment that evening, but recalled hearing a baby cry at some point. Defendant claimed that, before he left the apartment, he picked up the telephone to call the police, but then changed his mind and went home and slept.
Defendant described the weapons as being a .22-caliber Beretta handgun and a knife that was actually two steak knives that he had taped together. Defendant showed Sanfilippo where he had hidden the handgun near Powalka’s apartment. Later, ballistic tests indicated that an ammunition casing recovered from the apartment was “probably” fired by the recovered handgun. Defendant claimed he threw the knife into a garbage can, and it was never recovered. Maddox testified he regularly saw defendant carrying a knife, and one of defendant’s friends also testified he had seen defendant with a knife similar to the one used in the killings. Police officers later searched defendant’s room and found two steak knives similarly taped together.
While in jail, defendant told deputies that he should get the death penalty and be executed “for what he had done,” expressed concerned for his own safety in custody, and said he wanted to talk to a priest or a pastor because he wanted to die or kill himself. Defendant was placed in a safety cell because he told a doctor he wanted to kill himself.
In August 1995, Robert DiTraglia, M.D., a forensic pathologist, performed autopsies on the victims and concluded all of them had bled to death. Neither fire nor smoke contributed to their deaths.
Corina suffered multiple “sharp force injuries” (that is, stab and cut wounds) to the neck and bled to death because her right carotid artery and jugular vein were severed. Corina bore no signs of genital trauma. Two criminologists compared hairs obtained by combing Corina’s pubic region with samples provided by defendant and Maddox; the criminologists concluded the recovered hairs were inconsistent with defendant’s samples but consistent with Maddox’s and her own. An analysis of vaginal swabs and Corina’s clothing did not reveal the presence of semen.
Powalka was stabbed 54 times and had at least 52 cut wounds. Powalka’s right carotid artery was severed in one location and almost severed in another; the right jugular vein also had multiple sharp-force injuries. Powalka bore no signs of genital trauma. A vaginal smear slide collected from Powalka indicated the presence of a spermatozoa, but there was insufficient material to perform further analysis.
Amanda was stabbed six times and had multiple cut wounds. Her right carotid artery was partially severed. Amanda also was shot: the bullet entered behind her left ear, pierced her lungs, and lodged there. The gunshot wound would have been independently fatal. Amanda also had multiple stab and cut wounds, consistent with being defensive wounds, that were caused by a serrated knife blade.

2. Defense evidence

Defendant presented no evidence, but impeached Maddox with convictions for receiving stolen property and discharging a firearm from a car.

B. Penalty Phase

1. Prosecution evidence

a. Defendant’s uncharged violent criminal conduct

On March 22, 1994, defendant stabbed his uncle, Robin Stewart. Stewart, who was much larger than defendant, had been bullying him for months. On that day, Stewart shoved defendant against a wall and then threw him out the front door. Stewart insulted defendant and dared him to come back. Defendant came back, stabbed Stewart in the stomach, and ran away. Stewart went to the hospital for treatment. Although Stewart testified defendant was justified in stabbing him, he had told the police defendant stabbed him for no reason.
During the summer of 1994, defendant’s former neighbor, Maricely Ascencio, her husband, and her brother were arguing with one of defendant’s relatives. Defendant joined in the argument and threatened to kill Ascencio and her family if they were “messing with his brother,” so she reported the incident to the police. Although defendant was unarmed during the argument, Ascencio twice saw defendant with two taped-together knives that he repeatedly threw against the ground.
Ascencio’s brother recalled another incident where he saw defendant chasing an individual down the street while trying to hit him with a stick.
A few months before the murders, defendant and four other men were arguing near a high school. The four other men started fighting. Defendant pulled out a knife, but did not engage anyone in combat.

b. Victim impact evidence

Powalka had, in addition to her son Eric, a daughter, Brianna, who was two years old when Powalka was murdered. Powalka’s mother, Frankie Sanderson, described Powalka as “[f]eisty, a lot of fun, very outspoken, [and] just a good person.” Despite her extensive injuries, Powalka had an open-casket funeral. Powalka was cremated because her mother believed she “didn’t like bugs” and would not have wanted to be in the ground. It was very difficult for Sanderson to view the autopsy photographs, sort through Powalka’s belongings, make the funeral arrangements, apply to be the guardian for her two children, and endure the holidays, her birthday, and the anniversary of her death. Since Powalka’s death, Eric and Brianna had not lived together. Sanderson believed Powalka’s death had a negative effect on her health, and accelerated her own mother’s death. Sanderson missed Powalka terribly. Linda Baker, Powalka’s sister, described her as a happy, fun, outgoing person who was a great mother. Baker started raising Brianna.
Esther Elliot-Martin, Amanda’s mother and Corina’s aunt, described her daughter as beautiful, intelligent, thoughtful, caring, helpful; good at writing, music, video games, and making people laugh; and as someone who loved children, especially Eric. Amanda had written a poem about her brother, which Elliot-Martin read to the jury. Elliot-Martin missed Amanda, especially on birthdays, Mother’s Day, and Christmas; whenever she heard the song “Mandy,” which was Amanda’s nickname, Elliot-Martin cried.
Corina was the only child of Nora Gandara, who described her daughter as her best friend and a warm and caring person. Richard Gandara, Nora’s husband and Corina’s stepfather, described Corina as easy to raise, and as a “straight-A” student who loved school, played clarinet, composed music, drew, and wrote stories. Corina also loved Eric. Nora and Richard stayed involved with Corina’s school because her murder was so hard on her friends. Because of Corina’s death, Nora attempted to commit suicide and had been in a mental institution twice; due to her condition, Richard had to take care of her. Nora had not been able to find work, Richard was unable to concentrate at work and had changed jobs three times, and they were struggling to keep their marriage together.
Ricardo Gandara, Amanda’s and Corina’s grandfather, described their family as extremely close, and said it was “hell on earth” having to deal with his daughters’ loss of their children. The holidays were the worst.
The jury viewed videotapes depicting photographs of each of the young women.

2. Defense evidence

Defendant’s mother, Natalie Booker, was born with brain damage due to complications during her birth. Defendant’s grandmother, Mary Booker-Johnson, was Natalie’s caretaker, as she was unable to live independently, handle money, make rational decisions, or exercise good judgment. Natalie could write her name but could not read. Natalie, who was 19 years old when she gave birth to defendant, did not know how to take care of her son or even how to clean a house. Defendant and Natalie lived with Booker-Johnson for almost all of his childhood.
In school, defendant had problems with reading comprehension and mathematics and was placed in a special education program in the second or third grade.
In 1991, Natalie was hit by a car and had been comatose in a convalescent home ever since. Defendant, who was 12 or 13 at the time of the accident, was devastated, struggled in school, and was not quite the same since the accident.
Booker-Johnson described defendant as a good grandson who had been “a right hand” to her. Booker-Johnson provided examples of defendant’s helpfulness, and testified that she had always known him to be kind and caring. She loved defendant very much.
Defendant had one son, who was born in 1995 shortly after the murders.

II. Discussion

A. Pretrial Issues

1. Failure to initially swear in grand jurors

The trial court did not swear in the grand jury until midway through its proceedings, and defendant contends this omission constituted a “fundamental jurisdictional error” that compels reversal.[4] These are the relevant facts:
Defendant’s case was initiated by way of an indictment rather than a complaint. (See § 682.) On February 28, 1996, the trial court selected the jurors for a criminal grand jury, including a foreperson, from a pool of potential petit jurors.
The person selected as the grand jury foreperson admonished the rest of the potential grand jurors to step down if they could not act impartially. The prosecutor made his opening statement. Sanfilippo then testified and played a portion of the audiotape recording of defendant’s confession.
At this point, the trial court realized that the assembled jurors had not been sworn in, so it administered the oath for grand jurors.[5] The grand jury then finished listening to the audiotape. Sanfilippo continued to testify. Sanfilippo’s partner also testified; during his testimony several photographs were introduced into evidence. The prosecutor then made his closing argument and instructed the grand jury. The grand jury returned the indictment at issue.
On April 26, 1996, defendant moved pursuant to section 995 to set aside the indictment on the ground, among others, that some evidence was presented to the grand jury before it was sworn in.[6] Following a hearing, the trial court denied the motion.
Defendant filed a petition for writ of mandate in the Court of Appeal, which denied it without comment. (Booker v. Superior Court (Aug. 23, 1996, E018917) [nonpub. order].)
The Attorney General concedes the trial court administered the oath to the grand jurors after they had heard some testimony, but contends defendant suffered no prejudice from this belated swearing-in of the grand jurors and thus is not entitled to relief.
The Attorney General is correct. Under federal and state law, irregularities in grand jury proceedings generally are reviewed for prejudice. (See, e.g., Bank of Nova Scotia v. United States (1988) 487 U.S. 250, 254-257 [citing Fed. Rules Crim.Proc., rule 52(a)]; People v. Jablonski (2006) 37 Cal.4th 774, 800 [citing Bank of Nova Scotia] (Jablonski).) Isolated exceptions to this general rule, not applicable to defendant’s case, have included cases involving discrimination in the composition of the grand jury based on the grand jurors’ race (Vasquez v. Hillery (1986) 474 U.S. 254) or gender (see Ballard v. United States (1946) 329 U.S. 187).
Citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519 (Pompa-Ortiz), defendant contends the challenge to the indictment that he filed prior to the start of his trial now relieves him of the burden of demonstrating on appeal the prejudice he suffered. Not so. In Pompa-Ortiz, we affirmed the defendant’s conviction despite irregularities in his preliminary examination; and ruled that, as to pretrial challenges to irregularities during the preliminary examination, a defendant need not demonstrate prejudice to obtain relief, but does as to posttrial challenges. (Id. at p. 529.) We have since extended the rule articulated in Pompa-Ortiz to include irregularities during grand jury proceedings. (See, e.g., Jablonski, supra, 37 Cal.4th at pp. 800-801.)
Defendant is correct that Pompa-Ortiz did not require a showing of prejudice during a pretrial challenge to irregularities in the preliminary examination, but nothing in Pompa-Ortiz suggests that standard of review applies to a posttrial challenge if the defendant asserted the challenge pretrial. In Jablonski, notwithstanding the defendant’s having challenged alleged irregularities during the grand jury proceedings in a section 995 motion, we rejected the claim as presented on appeal because he failed to demonstrate prejudice. (Jablonski, supra, 37 Cal.4th at pp. 800-801.) As Pompa-Ortiz and Jablonski demonstrate, the need for a showing of prejudice depends on the stage of the proceedings at which a defendant raises the claim in a reviewing court, and not simply on whether he or she had raised the claim prior to trial. That defendant here, unlike the defendant in Jablonski, filed a pretrial writ petition does not alter the analysis as to why no showing of prejudice is required for pretrial challenges to grand jury proceedings but is required for posttrial challenges.
Defendant also cites Serna v. Superior Court (1985) 40 Cal.3d 239 in support of the contention that pretrial exhaustion obviates the need for a posttrial showing of prejudice. In Serna, we granted a pretrial petition for writ of mandate directing the superior court to dismiss a case on speedy trial grounds. We did so without requiring a showing of prejudice. In the course of our analysis, we observed, “it is not unreasonable to require a felony defendant who does not seek or obtain pretrial relief to demonstrate actual prejudice when reversal of a judgment is sought on this ground on appeal.” (Id. at p. 263, italics added; see also People v. Stewart (2004) 33 Cal.4th 425, 461 (Stewart) [“But when such claims are presented for the first time on appeal . . .” (italics added)].)[7] Seizing on the italicized language, defendant emphasizes that he did in fact seek relief prior to this appeal, and contends he ought therefore to be excused from the requirement to demonstrate prejudice. We are not persuaded. Serna and Stewart are consistent with Pompa-Ortiz’s rule that whether a showing of prejudice is required depends on the stage of the proceedings at which the claim is raised in the reviewing court. To the extent defendant reads Serna or Stewart as implying there exists a different required showing of prejudice for posttrial challenges based on whether there was also a pretrial challenge, he is mistaken.
Thus, because this is a posttrial challenge to the grand jury proceedings, any irregularity in the proceedings requires reversal only if defendant has been prejudiced. Assuming for the sake of argument that the irregularity violated the federal Constitution, defendant is entitled to relief unless the prosecution can show beyond a reasonable doubt that the irregularity did not affect the outcome of trial. (Chapman v. California (1967) 386 U.S. 18 (Chapman).) Under state law, defendant bears the burden of demonstrating any error deprived him of a fair trial. (See Jablonski, supra, 37 Cal.4th at p. 800.)
Here, defendant is not entitled to relief under either standard. As the trial court noted, the evidence presented to the grand jury after the trial court administered the oath was sufficient to support an indictment against defendant. The belated swearing-in of the grand jurors did not have a structural impact on those proceedings, as the grand jury, once properly sworn, received sufficient evidence to support the indictment.[8] Contrary to defendant’s assertion, the error is susceptible to review for actual prejudice because we can review — and, indeed, have reviewed — the evidence that was presented to the grand jury after it was sworn. Unlike Vasquez v. Hillery, supra, 474 U.S. 254, where racial animus of the grand jurors may have affected their decision in whether and how to charge the defendant, our review of these grand jury proceedings does not require us to speculate as to the jurors’ motives. Consequently, we reject his claim that it is impossible to determine whether there was sufficient evidence to support his indictment, and we need not consider his claim that the indictment was based at least partly on evidence received prior to jury being sworn.

2. Asserted Witt/Witherspoon error

Defendant contends the trial court improperly excused five prospective jurors who expressed doubts about their willingness to impose the death penalty. Under state and federal law, prospective jurors may be excused for cause if their views on the death penalty would prevent or substantially impair the performance of their duties as jurors, even where the prospective jurors have not made it “ ‘unmistakably clear’ that [they] would ‘automatically’ vote a certain way.” (People v. Carasi (2008) 44 Cal.4th 1263, 1286, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 and Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21.) Unless a juror makes it clear that he or she is unwilling to set aside his or her beliefs and follow the law, a trial court may not dismiss a juror under Witt/Witherspoon based only on answers provided on a juror questionnaire. (People v. Wilson (2008) 44 Cal.4th 758, 785-787; Stewart, supra, 33 Cal.4th at p. 451.) Errors under Witt/Witherspoon mandate reversal of the penalty verdict without regard to prejudice. (People v. Schmeck (2005) 37 Cal.4th 240, 264; see People v. Tate (2010) 49 Cal.4th 635, 666-667 [Witt/Witherspoon error does not compel reversal of guilt phase verdict].)
Jury selection in this case started with a large group of prospective jurors, some of whom were dismissed immediately due to hardship caused by jury service. Approximately 130 prospective jurors remained, and they were given questionnaires prepared jointly by the parties. The questionnaire inquired about, among other topics, the prospective jurors’ opinions concerning the death penalty.
The trial court noted on the record that, for efficiency’s sake, the parties had reviewed the completed questionnaires and, based solely on the responses, defendant agreed to stipulate to the excusal of some jurors who appeared to oppose the death penalty while the prosecutor agreed to do likewise for some jurors appeared to support it. At one point, the trial court explicitly recited it was not excusing any prospective jurors for cause; rather, the parties were stipulating to the excusals. In total, the parties stipulated to the excusal of 33 prospective jurors, five of whom are the basis for this claim. If either party objected to the excusal of a prospective juror through this process, that person was not excused but was summoned later for voir dire. The trial court did not excuse any prospective juror over defendant’s objection during this process. At the end of the stipulated excusals, defense counsel stated:
“Your Honor, for the record, [the prosecutor] and I have both reviewed all of the questionnaires . . . . [¶] And as a matter of trial tactics, we had agreed to enter into stipulations regarding excusing by my count, 33 of the venire members, as we believe it’s to the benefit of our client to do that.”
The trial court then began its voir dire of the remaining prospective jurors, and eventually the jurors and alternate jurors were seated.
The Attorney General contends defendant has forfeited this claim on appeal, and we agree. We previously have barred belated challenges to stipulated excusals of prospective jurors. (See People v. Benavides (2005) 35 Cal.4th 69, 87‑89 (Benavides); People v. Ervin (2000) 22 Cal.4th 48, 72-74.)
Defendant nonetheless contends the logic of these decisions was undermined by other cases, such as Stewart, supra, 33 Cal.4th 425, People v. Heard (2003) 31 Cal.4th 946, and People v. Cash (2002) 28 Cal.4th 703. Not so. Stewart involved the dismissal by the trial court of prospective jurors based on the questionnaire responses; in Heard, the trial court improperly dismissed a prospective juror when during voir dire he clarified his questionnaire responses and indicated he could follow the trial court’s instructions; and Cash was concerned with the trial court’s refusal to permit questioning on whether specific acts of aggravation would cause a potential juror to automatically vote in favor of the death penalty. In contrast, in this case, as in Benavides and Ervin, the parties stipulated to the dismissal of the prospective jurors.
Our more recent case, People v. Cook (2007) 40 Cal.4th 1334 (Cook), also is in accord with Benavides and Ervin. In Cook, prospective jurors completed a questionnaire that inquired about their views on the death penalty. The trial court permitted both the prosecution and the defense to move to exclude for cause various prospective jurors based solely on their questionnaires. (Cook, at p. 1341.) The trial court stated it would dismiss a prospective juror if both parties agreed to the excusal. (Id. at p. 1342.) The trial court also asked if there were “ ‘others that there’s going to be a challenge for cause that you’re willing to submit on the questionnaires‌’ ” (Ibid.) The parties agreed to “ ‘submit on the questionnaires’ ” with respect to some prospective jurors, and the trial court clarified that they would be “ ‘thereby waiving [their] right to any further questioning.’ ” (Ibid.) If the trial court denied such a challenge, the parties could later question the prospective juror during voir dire. (Ibid.)
One prospective juror, Maria R., provided answers that cast doubt on her ability to vote for the death penalty. (Cook, supra, 40 Cal.4th at p. 1341.) The defendant “submit[ted]” as to the prosecutor’s challenge for cause to Maria R.; the trial court granted the challenge, and the defendant did not comment. (Id. at p. 1342.) On appeal, we ruled the defendant had forfeited his right to complain about the trial court’s failure to question Maria R. on voir dire because he repeatedly agreed to let the trial court decide such challenges for cause based solely on the questionnaire responses. (Ibid.) In so ruling, we noted that Stewart, upon which defendant here relies and the defendant in Cook similarly relied, presented a different situation; there, the trial court granted several challenges for cause based solely on questionnaire responses over the defendant’s repeated objections and without the defendant’s agreeing to the procedure. (Cook, at p. 1342; see also Uttecht v. Brown (2007) 551 U.S. 1, 15-20 [rejecting federal habeas corpus challenge in which defense counsel’s acquiescence during an otherwise extensive voir dire supported the trial court’s excusal of a potential juror for cause].)
Defendant here, like the defendant in Cook, agreed to the procedure whereby a prospective juror would be dismissed without voir dire if both parties stipulated to the dismissal. Of the five prospective jurors about whose dismissal he now complains, defendant stipulated to the dismissal of all of them; unlike the defendant in Cook, defendant here did not object to the dismissal of any of the prospective jurors now challenged on appeal. In addition, defendant declined to stipulate to the dismissal of several other prospective jurors, and they were later summoned to voir dire. If defendant had wanted to retain any of the five dismissed prospective jurors for further questioning, he should not have stipulated to their dismissal.
Moreover, unlike the prospective jurors in Cook and Stewart, the trial court here did not excuse any prospective juror for cause — the parties stipulated to the excusals, as was the case in Benavides and Ervin. Although the discussion between the trial court and the parties focused on the prospective jurors’ opinions about the death penalty, and those expressed opinions formed the basis for the parties’ decisions regarding whether to stipulate to the dismissal, no prospective juror during this stage of the proceedings actually was dismissed for cause.
Defendant contends he stipulated to this presceening procedure only at its conclusion, and thus could not have forfeited his right to challenge any purported errors that occurred during it, but this is simply not so: the record indicates the parties agreed to the procedure at its outset and then entered the stipulation into the record at its conclusion.
As defendant agreed to and participated in the process whereby some prospective jurors were excused through stipulations, he has forfeited his right to complain about this procedure.[9] And as none of the five challenged prospective jurors actually were dismissed for cause, the trial court made no findings on whether their views on the death penalty would prevent or substantially impair the performance of their duties as jurors, and we therefore have no basis on which to exercise our review.

TO BE CONTINUED AS PART II….

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