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PEOPLE v. BOOKER Part-II

PEOPLE v. BOOKER Part-II
07:13:2011

PEOPLE v

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
__________________________________ )


STORY CONTINUE FROM PART I….

3. Asserted Batson/Wheeler error


Defendant, who is African-American,[1] contends the prosecutor improperly excused four African-Americans (M.L.W., J.M., M.D.W., and D.J.) from the venire. (People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162; Batson v. Kentucky (1986) 476 U.S. 79.)
“It is well settled that ‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias — that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds” — violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.]
“The United States Supreme Court recently reaffirmed the procedure and standard to be used by trial courts when Batson motions challenging peremptory strikes are made. ‘ “ ‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.’ ” [Citation.]’ (Snyder v. Louisiana (2008) 552 U.S. 472, 476-477.)” (People v. Hamilton (2009) 45 Cal.4th 863, 898.)
As explained below, we reject defendant’s challenge to each of the excusals.

a. Factual background


As noted, after hardship excusals approximately 130 potential jurors completed the juror questionnaire. Defense counsel noted that, according to the completed questionnaires, 64 percent of these prospective jurors identified themselves as Caucasian, 14 percent as Hispanic, 8 percent (10 out of 132) as African-American, 2 percent as Asian, 2 percent as other, and 10 percent did not specify. From this group, the parties stipulated to the excusal of at least 33 potential jurors. The trial court first questioned the prospective jurors, followed by counsel for each party.
From the panel of the first 20 prospective jurors, the prosecutor challenged a Hispanic prospective juror without objection.
(1) Prospective Juror M.L.W.

When the prosecutor exercised his second peremptory challenge, against M.L.W., defendant made a motion under Batson/Wheeler.
Answers to the juror questionnaire indicated that M.L.W. was a religious person who opposed the death penalty and believed it was generally unnecessary, as murderers “will always have to answer to God and that’s much worse than facing death.”[2] M.L.W. nonetheless expressed a willingness to set aside her personal beliefs. M.L.W.’s brother had been arrested for selling drugs, but M.L.W. felt he was fairly treated by the criminal justice system.
On voir dire, M.L.W. reiterated a willingness to set aside her personal beliefs regarding the death penalty. M.L.W. also was a crime victim: While driving on the freeway, someone pointed a gun at M.L.W., but she believed this experience would not affect her ability to serve as a juror.
In response to defendant’s Batson/Wheeler motion, the trial court ruled defendant had failed to make a prima facie case of racial discrimination, although it did note that the first prospective juror peremptorily excused by the prosecutor was Hispanic. The trial court also noted M.L.W.’s religious reservations about the death penalty. Because the trial court ruled defendant had not made a prima facie case, the prosecutor did not explain why he peremptorily challenged M.L.W. The prosecutor later expressed concerns about M.L.W.’s religious beliefs and about jurors who felt they might be sinning or “going to hell” if they voted in favor of a death verdict.
The prosecutor then excused three more jurors, including an African-American (G.N.), without objection.
(2) Prospective Juror J.M.

The prosecutor exercised his sixth peremptory challenge against J.M., and defendant made another Batson/Wheeler motion.
The juror questionnaire asked prospective jurors to indicate whether any relatives or close friends had been accused of a crime, and J.M. left this question blank. J.M.’s other responses indicated a generally favorable opinion of the death penalty.
On voir dire, the trial court asked J.M. if any family member had been accused of a crime, and J.M. said that none had. The prosecutor then pointed out that J.M.’s son had been prosecuted as a juvenile; J.M. responded by expressing confusion over whether the question applied to juvenile proceedings.
In denying defendant’s Batson/Wheeler motion, the trial court ruled defendant failed to make a prima facie showing, as J.M. was “obviously hiding something.” The prosecutor also accused J.M. of lying under oath and said there was no way J.M. would be kept on the panel.
(3) Prospective Juror M.D.W.

The prosecutor exercised his seventh peremptory challenge against M.D.W., and defendant made a Batson/Wheeler motion.
Like M.L.W., M.D.W.’s juror questionnaire indicated she was a religious person but could set aside those beliefs for jury duty. M.D.W. indicated the death penalty was appropriate for a person who “deliberately and maliciously causes severe harm to others,” but “the death penalty should only be used in instances where there can be no rehabilitating” and other people are at risk. The questionnaire also indicated M.D.W.’s aunt was charged with a crime and her children were taken away from her when the aunt’s boyfriend killed one of the children in his care. Despite the emotional nature of that situation, M.D.W. felt “justice was served.”
On voir dire, M.D.W. acknowledged that rehabilitation was just one possible factor in determining the appropriate penalty.
The trial court again ruled there was no prima facie showing of discrimination, citing M.D.W.’s concerns about rehabilitation; the trial court also noted her own awareness of being a “highly opinionated” person. The prosecutor acknowledged M.D.W. had given “correct verbal answers” but he felt she actually would be unable to vote for death.
The prosecutor then exercised three more peremptory challenges without objection.
(4) Prospective Juror D.J.

When the prosecutor exercised his 11th peremptory challenge, against D.J., defendant again made a Batson/Wheeler motion.
D.J.’s juror questionnaire indicated he worked as a loss prevention officer for a department store and had family members who worked in law enforcement. D.J.’s younger brother had tossed his infant son (D.J.’s nephew) into the air and failed to catch him, and the child died. Although the brother was convicted of manslaughter, D.J. felt the outcome was fair. D.J.’s church was opposed to the death penalty, but he expressed a willingness to vote for the death penalty if it was appropriate.
The trial court denied defendant’s Batson/Wheeler motion, finding no prima facie showing based on D.J.’s religious beliefs and some inconsistencies in answers about his incarcerated brother. The prosecutor also noted D.J.’s body language was “angry and/or at least very uncomfortable,” and noted D.J.’s concern about his brother’s conviction. But the prosecutor was most concerned with D.J.’s religious beliefs and purported willingness to ignore those beliefs; the prosecutor suspected D.J. may have had a hidden agenda to spare defendant from the death penalty.
After the prosecutor had used his 13th (of 20 total) peremptory challenges, and defendant had used seven of his 20, the parties accepted the jury.
During the selection process for the alternate jurors, the prosecutor used all four of his peremptory challenges, including one against an African-American (M.R.), without objection.

b. Legal contentions


In denying defendant’s Batson/Wheeler motions, the trial court first found no prima facie showing of discrimination, and then explained its reasons for doing so; the court, however, then invited the prosecutor to make additional remarks. The prosecutor each time concurred in the trial court’s remarks and made additional observations. Thus, similar to People v. Mills (2010) 48 Cal.4th 158, 173-174 (Mills), this case is a first stage/third stage Batson hybrid, as the record contains both the prosecutor’s reasons and the trial court’s evaluation (albeit implicit) of those reasons. Thus, as we did in Mills, we will express no opinion on whether defendant established a prima facie case of discrimination and skip to Batson’s third stage and evaluate the prosecutor’s reasons for challenging these prospective jurors.
“ ‘Review of a trial court’s denial of a [Batson/Wheeler] motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] “. . . We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citations.]” ’ ” (People v. Taylor (2009) 47 Cal.4th 850, 886 (Taylor).)
“As part of our analysis, we consider as ‘bearing on the trial court’s factual finding regarding discriminatory intent’ [citation] the comparisons of prospective jurors challenged and unchallenged that defendant expounds in his briefs, though few if any of these comparisons were made in the trial court. At the same time, ‘we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.’ [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved. ‘Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.’ [Citation.]” (Taylor, supra, 47 Cal.4th at p. 887.)
As noted, with respect to each of the challenged prospective jurors, the trial court ruled defendant failed to demonstrate an inference of racial bias. Defendant contends the trial court erred in so ruling, as the prosecutor used six of his 13 peremptory challenges (including four of his first seven) to excuse African-Americans.[3] Only 10 of the prospective jurors in the venire, defendant observes, were African-American.
Defendant contends we cannot rely on the trial court’s “speculations” about the prosecutor’s possible reasons for challenging these prospective jurors. We disagree. The prosecutor expressly adopted the trial court’s reasons, and his additional observations supplemented those of the trial court. Although defendant contends we “can have no confidence that the prosecutor’s stated race-neutral reasons were really his own,” there is nothing in the record to indicate they were not. Notably, the prosecutor explicitly adopted the trial court’s reasons; there is no need for us to engage in speculation as to the prosecutor’s reasons for the challenges, as the prosecutor actually offered reasons. Moreover, the record supports the inference that the prosecutor’s offered reasons were genuine, as his questioning of each of these prospective jurors focused on the exact bases that the trial court cited in its rulings.
The trial court correctly denied defendant’s Batson/Wheeler motion with respect to J.M. because of his less than forthcoming responses on the juror questionnaire and during voir dire regarding whether any family members were ever accused of committing a crime. Although defendant on appeal repeats J.M.’s stated confusion regarding whether the inquiry applied to juvenile adjudications, and contends there is “no reason to believe [J.M.] deliberately concealed this information” or “had some hidden agenda or would be biased against the prosecutor,” the trial court and the prosecutor, who had the opportunity to observe J.M.’s demeanor, concluded J.M. had been untruthful. On the record before us, J.M.’s reluctance to discuss these matters sufficiently demonstrates that the proffered reasons for dismissing J.M. were not pretextual.
M.L.W., M.D.W., and D.J., the subject of defendant’s first, third, and fourth Batson/Wheeler motions, were primarily excused due to their expressed reservations about the death penalty, reservations that were rooted in their religious beliefs.[4] In denying defendant’s motions, the trial court noted that the prosecutor also had challenged prospective jurors of other races who expressed religious objections or concerns about the death penalty. The trial court then related its experience that African-Americans, as a group, are less supportive of the death penalty.
Defendant contends the trial court’s comment about the effect of African-Americans’ beliefs, as a group, on their ability to serve as capital jurors demonstrated impermissible racial bias. Not so. The prosecutor excluded these specific three prospective jurors not because of their race but rather because of their expressed doubts about the death penalty. And, as defendant concedes, a juror’s reservations about the death penalty constitute a valid race-neutral reason for a peremptory challenge. (E.g., People v. Salcido (2008) 44 Cal.4th 93, 140-141 (Salcido).) To the extent defendant contends these religious reservations acted as a proxy for racial discrimination, as the trial court noted and defendant concedes, the prosecutor also challenged jurors of other races based on these same reservations. (See People v. Williams (1997) 16 Cal.4th 153, 190-191 [reliance on a reason asserted to be a proxy for race is permissible if there is a specific link between the stated reason and the basis for the challenge].) Consequently, defendant fails to demonstrate that the prosecutor’s concerns over the prospective jurors’ religious reservations were pretextual.
Defendant nonetheless contends the excusal of these prospective jurors acted as impermissible religious discrimination. As defendant did not articulate this basis for his objection in the trial court, he has forfeited the claim on appeal. (See People v. Thornton (2007) 41 Cal.4th 391, 462.) In any event, the claim lacks merit, as there is no evidence in the record the prosecutor discriminated against any particular religious denomination. Nor is there any evidence the prosecutor excluded prospective jurors who expressed some sort of religious belief, or a religious belief that might theoretically interfere with the ability to return a death verdict. Rather, the prosecutor challenged only those who actually expressed a possible conflict between their religious beliefs and duties as a juror, which as we have noted, is permissible.

4. Asserted failure to determine racial bias of jurors


Defendant contends the trial court erred by failing to determine whether any of the prospective jurors might be biased against him due to his race. As noted, defendant is African-American, his victims were not, and at the time of his trial, Riverside County was populated primarily by Caucasians.
The juror questionnaire did not expressly ask the jurors about any potential racial biases they might have, although one question did ask if there was anything about defendant’s “appearance” that might cause a prospective juror to be biased. No prospective juror answered in the affirmative. During voir dire, defense counsel did ask the first group of prospective jurors whether any of them would be affected by the differences in race between defendant and the victims, and, again, no prospective juror responded in the affirmative.
As we have held repeatedly and as defendant implicitly acknowledges, he cannot complain on appeal about the trial court’s failure to question the venire on racial prejudice unless he has requested specifically such an inquiry. (People v. Rogers (2009) 46 Cal.4th 1136, 1152-1153.) Defendant participated in drafting the juror questionnaire, questioned potential jurors but asked only one question during voir dire about differences between his race and the race of the victims, and does not justify his failure to request or conduct a more thorough inquiry. As such, defendant’s reliance on People v. Taylor (1992) 5 Cal.App.4th 1299 is unavailing because in that case, unlike here, the trial court controlled the voir dire and did not permit the attorneys to ask questions directly. Consequently, this claim is forfeited.
Citing People v. Holt (1997) 15 Cal.4th 619 (Holt), defendant nonetheless contends the trial court was required to propound specific questions designed to reveal racial prejudice. Not so. In Holt, we ruled a trial court could not prevent counsel from asking such questions (see id. at pp. 660-661), but Holt in no way obligates a trial court to undertake such an inquiry. Similarly, in Ristaino v. Ross (1976) 424 U.S. 589, 597, footnote 9, another case on which defendant relies, the high court ruled that “voir dire questioning directed to racial prejudice was not constitutionally required.” When race is “inextricably bound up” with the issues to be tried, however, a trial court might be required to make such an inquiry on its own initiative. (Id. at p. 597.) But other than the bare fact of the difference between the races of defendant and the victims, nothing about the circumstances of this crime suggests race played any role. (See ibid.; cf. Ham v. South Carolina (1973) 409 U.S. 524 [inquiry into racial prejudice was relevant as the defendant was a civil rights activist who claimed he had been framed by law enforcement personnel].)
Even were we to agree that the interracial nature of this crime required further voir dire, we would find no reversible error. “Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal. [Citation.]” (Holt, supra, 15 Cal.4th at p. 661; see People v. Robinson (2005) 37 Cal.4th 592, 620-623.) Defendant had the opportunity to further examine potential jurors about possible racial bias, either directly or indirectly through the juror questionnaire, but defense counsel apparently found no need to do so; moreover, defense counsel did not exhaust his allotment of peremptory challenges. (See People v. Taylor (2010) 48 Cal.4th 574, 607-610 (Taylor).) Consequently, defendant’s trial was not fundamentally unfair.

B. Guilt Phase Issues

1. Admission of crime scene photographs


Petitioner contends the trial court abused its discretion by admitting inflammatory, gruesome, cumulative, and irrelevant photographs of the victims’ bodies and the surrounding crime scene.
Prior to the start of trial, defendant sought to exclude some photographs of the victims (taken at the crime scene or during their autopsies), arguing the nature of their wounds and the fact that the young women had once been alive was not in dispute. After conducting a hearing, the trial court excluded six photographs of Powalka (and not 12 others), one photograph of Amanda (and not 21 others), and five photographs of Corina (and not 15 others). In lieu of the autopsy photographs, defendant offered to stipulate to the cause of death for each of the victims, but the prosecutor refused the stipulation. Of the 48 photographs not excluded during this hearing, 39 ultimately were admitted into evidence at trial.
Defendant objected at trial to the admission of four photographs of the crime scene on the grounds of relevance and being unduly prejudicial; the trial court overruled the objections. In total, the trial court admitted more than 100 photographs into evidence during the guilt phase.
We review for an abuse of discretion a trial court’s admission of evidence. (People v. D’Arcy (2010) 48 Cal.4th 257, 298 (D’Arcy).) Having reviewed the photographs, we conclude the trial court did not abuse its discretion in admitting them.
At the outset, we note defendant did not object to many of the photographs admitted at trial; he also does not specify on appeal which photographs are the basis for this claim. As the failure to raise a timely objection forfeits the claim for appeal (see Evid. Code, § 353; People v. Carey (2007) 41 Cal.4th 109, 126), he cannot now complain about the majority of the photographs that were admitted. Regardless, even if defendant’s claim could be applied to every photograph admitted at trial, his argument would still lack merit.
Defendant cites a variety of cases, some more than 50 years old, for the proposition that a trial court can abuse its discretion by admitting particularly gruesome photographs. As general rule this may be true, but cases of more recent vintage have recognized that photographs of murder victims are relevant to help prove how the charged crime occurred, and that in presenting the case a prosecutor is not limited to details provided by the testimony of live witnesses. (E.g., D’Arcy, supra, 48 Cal.4th at p. 299; see Evid. Code, § 350 [only relevant evidence is admissible].) The trial court, in applying this principle, properly reviewed the challenged photographs. It did not abuse its discretion in excluding some and ruling that others were relevant in proving the prosecutor’s theory of the case, and that their probative value was not substantially outweighed by their prejudicial impact. (E.g., Mills, supra, 48 Cal.4th at pp. 191-192; see Evid. Code, § 352 [evidence that is relevant still may be excluded if it creates a substantial danger of prejudicing, confusing, or misleading the jury, or would consume an undue amount of time].)
Citing People v. Poggi (1988) 45 Cal.3d 306, 322-323 (Poggi) and People v. Ramos (1982) 30 Cal.3d 553, 577-578, defendant contends the prosecutor was obligated to accept his offer to stipulate to the cause of death of each of the murder victims. Defendant’s reliance on these cases is misplaced, as both involved photographs of the victims while alive, which were used to demonstrate they were killed by the attacks in question.[5] The prosecutor here did not introduce the photographs from the crime scene and autopsies solely to establish the fact of their deaths, but rather to demonstrate that defendant committed murder. As defendant’s plea of not guilty put all elements of each offense at issue (e.g., People v. Steele (2002) 27 Cal.4th 1230, 1243), defendant’s mental state during the commission of the crimes was relevant, and his proposed stipulation would not have relieved the prosecutor from proving this element. Despite the graphic nature of some of these photographs, the prosecution may present a persuasive and forceful case, and except as limited by Evidence Code section 352, it is not required to sanitize its evidence. (See, e.g., Salcido, supra, 44 Cal.4th at p. 147.)
Defendant nonetheless argues none of the photographs “had any tendency in reason to prove that these offenses were premeditated as opposed to being impulsive, rash, unconsidered acts.” But as the trial court noted, many of photographs highlighted the attacks on the victims’ throats, which tended to prove an intent to kill. Malice aforethought is an element of murder. (§ 187, subd. (a).) The photographs also supported the prosecutor’s argument that the same person committed all of these crimes.[6] Moreover, the prosecutor alleged Powalka and Corina were murdered during the commission or attempted commission of rape (and that Corina was murdered during the commission or attempted commission of a lewd act). Some of the photographs depicted their nearly identical states of undress, which could have helped prove the necessary mental state required for these allegations.
Defendant further contends the photographs should have been excluded as cumulative to the testimony provided by live witnesses, but we have often rejected that argument (e.g., D’Arcy, supra, 48 Cal.4th at p. 299), and do so again here. Defendant also contends the photographs were cumulative, but the trial court did exercise its discretion and excluded some photographs as cumulative. To the extent that objection has not been forfeited with respect to the remaining photographs, defendant does not specify on appeal which photographs were cumulative to the others (see People v. Farnam (2002) 28 Cal.4th 107, 185), and as more than 100 photographs were admitted into evidence at trial, we decline to hazard a guess on his behalf.

2. Sufficiency of the evidence


Defendant contends there was insufficient evidence to support the convictions of first degree murder, attempted murder, and arson, as well as the special circumstances of murder during the commission or attempted commission of rape or a lewd act, or multiple murders. During closing argument for the guilt phase, defense counsel argued there was a possibility that Maddox committed some — or all — of these acts. Defense counsel also urged that, if the jury believed defendant had murdered the victims, he should be found guilty only of second degree murder.
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . 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. [Citation.]’ [Citation.]” (D’Arcy, supra, 48 Cal.4th at p. 293.) The same standard of review applies in evaluating the sufficiency of the evidence to support special circumstance findings. (E.g., People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).)

a. First degree murder


Defendant contends the evidence at trial demonstrated that he killed the victims as a result of an “unconsidered or rash impulse” rather than with the premeditation and deliberation required for first degree murder.
A murder that is willful, deliberate, and premeditated is murder in the first degree. (§ 189.) “ ‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.] “The process of premeditation 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. . . .’ [Citations.]” ’ [Citation.]” (People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.)
“ ‘Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] . . . But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27, “are descriptive, not normative.” [Citation.] 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 mere unconsidered or rash impulse.” [Citation.]’ [Citation.]” (People v. Elliot (2005) 37 Cal.4th 453, 470-471 (Elliot).) These three categories are merely a framework for appellate review; they need not be present in some special combination or afforded special weight, nor are they exhaustive. (See, e.g., People v. Brady (2010) 50 Cal.4th 547, 562 (Brady).)
Defendant contends the evidence at trial indicated that he “accidentally nicked” Corina, who then overreacted and accused him of trying to stab her. Then, as Corina fled to the bathroom, defendant contends, Powalka threatened to shoot him with the gun, so he disarmed her. Amanda then charged defendant, he claims, and in the ensuing melee he stabbed the two young women (and eventually shot Amanda in the head). From this, defendant concludes, he is guilty of manslaughter (on a theory of imperfect self-defense) or, at worst, three counts of second degree murder spurred by an unconsidered and rash impulse. While such a scenario might have been possible (although not entirely consistent with what defendant told the police), on review we do not reevaluate the credibility of witnesses or resolve factual conflicts; rather, we presume the existence of every fact in support of the verdict that could reasonably be inferred from the evidence. (See Lindberg, supra, 45 Cal.4th at p. 27.) Under this standard, the prosecution’s evidence supported the verdict.


TO BE CONTINUED AS PART III….

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[1] None of the victims were African-American.
Two of the seated jurors were African-American. The court noted only 6 or 7 percent of Riverside County residents were African-American.

[2] The prosecutor originally had sought to excuse for cause M.L.W. based on her questionnaire answers, but the trial court stated that it “would deny the challenge on that basis.”

[3] With respect to G.N., the African-American prospective juror whom the prosecutor challenged without drawing an objection from defendant, the trial court noted that G.N. was “so far out on the outlying end of the bell curve” that there was no dispute as to his excusal. Similarly, Prospective Alternate Juror M.R. expressed so many negative experiences with law enforcement and the judicial system that both parties declined to ask further questions about those experiences. Thus, their excusals do not help defendant establish a pattern of discriminatory challenges.

[4] M.D.W., M.L.W., and D.J. also had family members who had experiences with the criminal justice system. The prosecutor specifically expressed concern over D.J.’s brother’s prosecution for the death of the brother’s child, and how that experience might affect D.J.’s ability to serve as a juror. A negative experience with the criminal justice system is a valid neutral reason for a peremptory challenge. (E.g., People v. Lenix (2008) 44 Cal.4th 602, 628.)

[5] Over defendant’s objection, the trial court did admit some photographs of the victims while they were alive. To the extent defendant contends on appeal that the trial court erred in admitting these photographs, any such error was not prejudicial. (See, e.g., Poggi, supra, 45 Cal.3d at p. 323.)

[6] During the closing argument in the guilt phase, defense counsel argued there was a possibility that Maddox committed some (and possibly all) of the charged crimes.




Description 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.
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