PEOPLE v. FARLEY
Filed 7/2/09 (reposted same date to correct participating concurring justices)
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. 123146
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STORY CONTINUE FROM PART II.
c. Defendants work at ESL
Defendant began working at ESL in approximately November 1977, and received a top-secret security clearance from the Department of Defense in March 1978. No background investigation was performed, because defendant had left the Navy so recently, and no subsequent investigation occurred because of funding shortages.
Richard Rose, a Department of Defense contracting officer, testified regarding defendants work at ESL. ESL specialized in building direction-finding equipment and signal-processing systems for the United States government. Defendant worked in three areas testing, repair, and preventative and corrective maintenance. From November 1977 through June 1979, defendant was involved in a project concerning the research and development of direction-finding equipment and its installation on ground vehicles and aircraft. The equipment enabled a military commander to determine the location of enemy communication or radar transmitters, and thereby learn the location and strength of enemy forces.
From June 1979 through June 1984, defendant was assigned to the Joint Defense Space Research Facility in Australia. Rose testified that this facility, which was shared by the United States and Australian governments, provided valuable contributions to the verification of arms control and disarmament agreements. Defendant and others provided round-the-clock maintenance of the electronic equipment, including diagnostic and repair functions. According to Rose, defendants contribution could be considered essential in that he was maintaining equipment that was of a significant value to the defense of the United States. Rose also testified that according to the Secretary of Defense, all of the projects on which defendant worked were vital to the national defense, and disclosure of any of this classified information could, according to the Secretary, result in exceptionally grave harm to the national defense and public relations of the United States. Defendants four ESL performance evaluations for this work were 99 percent, 96 percent, 96.5 percent, and 98 percent.
From June 1984 until his termination by ESL in May 1986, defendants work involved feasibility studies for the United States National Security Agency. This project analyzed equipment that might be developed, and how it would function.
d. Other mitigating evidence
Brian Messing, a systems engineer for ESL, worked with defendant in Australia. Messing testified that he considered defendant the best technician at the facility, because he was conscientious about his tasks. According to Messing, defendant took an active interest in his assignments, and would go out of his way to learn something else about the system. Messing testified that defendant assisted Messing on an occasion when Messings vehicle ran out of gasoline at night on an isolated stretch of road. Other drivers had passed him by without stopping. Defendant gave him a ride back to the ESL site to obtain gasoline, and then drove him back to his vehicle. Messing also stated that during a conversation on another occasion in Australia, defendant mentioned he owned several guns and a crossbow.
Alcina Sousa knew defendant at San Jose State University. She testified that he always would offer to look at and comment upon computer programs she had written. She also would see him in the hallways helping other students or just being friendly. He did not seem violent to Sousa, but instead very calm. He told Sousa about an incident in which he pulled someones vehicle out of the snow with his truck. After defendants arrest, Sousa visited him in jail. She testified that much of their conversation was about her life.
Stanley Hilberg shared a home with defendant from September 1986 to the end of January 1987. He testified that defendant was congenial and very responsible. He also testified that defendant had a shotgun in his room.
Joseph Nielsen, who was 71 years of age, resided on the same street as defendant in late 1987 and early 1988. Nielsen had spoken to defendant on several occasions, and testified he seemed like a very nice young man.
Lynn Clay and Gregory Debord testified that defendant performed well when he was employed at Covalent. Defendants responsibilities were undertaken in a timely manner, and he provided needed expertise. Clay testified that defendant was patient and responsive when dealing with customers. Debord noted that defendant seemed able to control himself.
Department of Corrections assistant director Robert Conroy and Santa Clara County Deputy Sheriff James Teichner testified that while in jail, defendant was courteous and respectful to officers. Conroy further testified that defendant was allowed to use a calculator and a typewriter, which were special privileges. Defendant wrote Conroy a thank you note for providing these materials unusual action for an inmate to take. Teichner, Deputy Sheriff Jeffrey Hunter, Correctional Officer James Darnell, and Correctional Officer Libby Reynolds testified that defendant did not cause any problems for officers when he was transported from jail to court.
Darnell further testified that while in jail, defendant was selected to be a trustee. This role required an ability to work independently. During the three months Darnell was assigned to defendants housing unit, defendant did a great job working as a trustee.
Reynolds and Judith Pelite, a teacher who provided jail educational services, testified that defendant studied mathematics. Pelite, Reynolds, Hunter, and inmate Wayne Nichols testified that defendant tutored other inmates in mathematics. Nichols further testified that defendant was patient and encouraging.
3. Rebuttal Evidence
The prosecution presented evidence of defendants misconduct while in jail. During a May 1990 search of defendants jail cell, scrubbing pads, used to polish the floors, were found hidden in a paper bag. An infraction report was written. In June 1988, during a search of defendants cell, a razor blade, two towels, a bag of sugar, 13 books, and 10 magazines were found. It was determined that defendant had committed a minor infraction, and as a penalty he lost use of the sun deck. In March 1989, while defendant was serving as a trustee, he turned off the juice machine to save juice for the trustees, despite having been instructed by an officer to leave it on. He turned the machine on again when ordered to do so, but became agitated. He raised his voice and confronted the officer in front of the other inmates.
II. Discussion
A. Pretrial Issues
1. Change of venue motions
Defendant contends the trial court erroneously denied his two motions for change of venue[1]in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We disagree.
a. Factual Background
On July 17, 1989, two years before trial, defendant filed a motion for a change of venue. At the hearing on the motion, held before Judge John Flaherty, defendant produced expert testimony, newspaper articles, and television news reports. On August 21, 1989, the trial court denied the motion without prejudice to its renewal after voir dire. The trial court expressed the view that this is an extremely close case, and stated that its decision to deny the motion was based in part on the applicability of the Hovey voir dire. . . . Im satisfied that by the use of that . . . extensive voir dire procedure, that the defendant here can receive a fair trial in this county. (See Hovey v. Superior Court (1980) 28 Cal.3d 1.)
Almost two years later, on June 13, 1991, after jury voir dire, defendant filed a second motion for a change of venue. The hearing on the second motion was held before Judge Joseph Biafore, the trial judge, on June 26, 1991, the day before the parties were scheduled to exercise peremptory challenges. The court considered the moving papers, the hearing transcript, and the exhibits from the first motion for a change of venue, as well as written and oral arguments and additional exhibits, including newspaper articles, television news reports, and summaries of voir dire responses, received prior to and at the hearing on the second motion for a change of venue. At the conclusion of the hearing, the court announced it would defer ruling on the motion until 12 jurors were chosen, to allow the court to take a good hard look at those particular people seated in terms of analyzing whether or not the Defendant would, in fact, receive a fair trial from those persons.
Following the selection of 12 jurors, but before they were sworn and before alternates were selected, the court heard further argument, and then denied the motion. The court found that the gravity of the offense, and the nature and extent of the publicity, weighed in favor of granting the motion, but also noted that during voir dire, prospective jurors indicated there was a spate of media exposure, followed by a decline in news reports. [M]any of them indicated there was actually nothing they heard about this case until the time for jury selection. . . . [I]n the intervening time, there was not a great mass of media exposure. This case did not generate the type of hysteria that counsel for the defense was talking about. The court also found that the status of the victims and defendant, who were not well-known in the community, weighed against granting the motion. The most salient factor, the court found, was the size of the community. The population of Santa Clara County was large, approaching 1.5 million persons. With respect to the jurors selected, the court had no doubt that these people will follow the law as instructed by the court. The jurors exhibited to the court that they can set aside whatever opinions, impressions that they may have derived from the media and judge . . . this case fairly and squarely on the evidence presented in this courtroom. The court found no reasonable likelihood defendant could not receive a fair trial in this community.
b. Analysis
A trial court must order a change of venue for trial of a criminal case to another county on motion of the defendant when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be held in the county. ( 1033, subd. (a).) (People v. Hayes (1999) 21 Cal.4th 1211, 1250.) We consider the correctness of the trial courts ruling at the time it was made. (Peoplev. Zambrano (2007) 41 Cal.4th 1082, 1127 (Zambrano), disapproved on different grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) We will sustain the courts determination of the relevant facts where supported by substantial evidence. We independently review the courts ultimate determination of the reasonable likelihood of an unfair trial. (Peoplev. Hart (1999) 20 Cal.4th 546, 598 (Hart).) Both the trial courts initial venue determination and our independent evaluation are based on a consideration of five factors: (1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim. (People v. Leonard (2007) 40 Cal.4th 1370, 1394 (Leonard).) On appeal, a defendant challenging a trial courts denial of a motion for change of venue must show both error and prejudice: that is, that at the time of the motion it was reasonably likely that a fair trial could not be had in the county, and that it was reasonably likely that a fair trial was not had. [Citations.] (People v. Davis (2009) 46 Cal.4th 539, 578).)
We begin with defendants initial motion, which was made before jury voir dire took place. The first factor of the analysis the nature and gravity of the offense weighed in favor of a change of venue for the trial of these seven senseless murders. The same could be said, however, of most capital crimes, and we have concluded that this factor is not dispositive. (Peoplev. Sanders (1995) 11 Cal.4th 475, 506; Peoplev. Pride (1992) 3 Cal.4th 195, 224.) Indeed, on numerous occasions we have upheld the denial of change of venue motions in cases involving multiple murders. (See, e.g., Leonard, supra, 40 Cal.4th at pp. 1395, 1397 [six counts of murder]; People v. Ramirez (2006) 39 Cal.4th 398, 407, 434-435 (Ramirez) [13 counts of murder]; People v. Welch (1999) 20 Cal.4th 701, 721, 744-745 [six counts of murder].)
We next consider the nature and extent of the media coverage, the factor upon which defendant primarily relies. Defendant presented evidence of numerous newspaper articles and television news stories that discussed or mentioned the events, including film of persons being rescued from the ESL building during the siege, pictures of an injured Laura Black, and segments of defendants recorded statements to Lieutenant Grijalva. He complains that some reports portrayed him as having committed various criminal acts rather than referring to him as a suspect or as an alleged criminal. He also complains that the media consistently portrayed [him] as an obsessed, dangerous man.
The media coverage, which decreased over time, was largely factual. (See Murphy v. Florida (1975) 421 U.S. 794, 800, fn. 4 [the court has distinguished largely factual publicity from that which is invidious or inflammatory]; id. at p. 802; Beck v. Washington (1962) 369 U.S. 541, 556 [the court noted that [e]ven the occasional front-page items were straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness]; Hart, supra, 20 Cal.4th at p. 599 [noting that the trial court found the reporting to be neutral, not inflammatory, and insufficient to sway public opinion].) Even in a case in which the trial court described the media coverage as saturation, we found no error in the denial of a motion for a change of venue, noting, among other factors, that the defendant did not show that the media coverage was unfair or slanted against him or revealed incriminating facts that were not introduced at trial. (Ramirez, supra, 39 Cal.4th at pp. 434-435.)
Defendant asserts, however, that even noninflammatory journalism may warrant a change of venue if the facts are sensational. We have acknowledged that press coverage need not be inflammatory to justify a change of venue (Peoplev. Tidwell (1970) 3 Cal.3d 62, 69-70), but the cases upon which defendant relies involved additional factors that weighed in favor of a change of venue. In Tidwell, two of the victims were prominent members of a small community, the defendants were strangers to that community, and some of the jurors selected to serve knew one or more of the victims or witnesses. (Id. at pp. 64-65, 67, 69-75.) Similarly, the change of venue ordered in Corona v. Superior Court (1972) 24 Cal.App.3d 872, was motivated by a concern that jurors in a small community, in which the defendant was charged with the murder of 25 migratory farm workers, would be vulnerable to claims of insensitivity toward migratory farm workers, and conscious of the communitys reputation for peace and security. (Id. at pp. 875-876, 883.) As explained below, such circumstances were absent in the present case.
The remaining three factors the size of the community, and the status of defendant and of his victims in the community weighed against a change of venue. Santa Clara County, with a population of almost 1.5 million persons, was a large community. (Peoplev. Dennis (1998) 17 Cal.4th 468, 523 [noting that Santa Clara County in 1988 was the fourth most populous county in the state].) Neither defendant nor his victims were prominent members of this community. Contrary to defendants contention, the circumstance that defendant, his victims, and many qualified jurors worked in the high tech industry did not affect the status of the participants for purposes of the change of venue motion; the terror engendered by defendants attack stemmed not from its occurrence in a technology company, but from the circumstance that it happened in the middle of the work day in an office setting. Some degree of juror identification with the victims would occur in any venue. (See Peoplev. Webb (1993) 6 Cal.4th 494, 515 [Any sympathetic features of the case would be apparent wherever it was tried].) For the same reason, defendants contention that jurors would perceive him as a changeling, who had turned on and murdered his own kind, does not establish that a change of venue was warranted.
For these reasons, we conclude the trial court did not err in denying defendants first motion for a change of venue.
As noted above, the court deferred its ruling on defendants second motion for a change of venue until after jury selection. (See Maine v. Superior Court (1968) 68 Cal.2d 375, 380 [it has long been the practice to permit the trial court to defer its final ruling on a motion for a change of venue until the jury is empaneled].) By this point in the proceedings, the trial court had heard on voir dire from the jurors selected that they would decide the case based solely upon the evidence and argument presented in court, and the trial court expressly credited those assertions. (See Leonard, supra, 40 Cal.4th at p. 1396 [jurors selected to try this case bear out the trial courts conclusion that an unbiased jury could be found].) In addition, none of the sitting jurors or alternates had been challenged for cause. (Beck v. Washington, supra, 369 U.S. at pp. 557-558 [the circumstance that the defendant did not challenge for cause any of the jurors selected is strong evidence that he was convinced the jurors were not biased].) Nor did defendant exhaust his peremptory challenges, thus indicating that the jurors were fair, and that the defense itself so concluded. (People v. Panah (2005) 35 Cal.4th 395, 448; see also Zambrano, supra, 41 Cal.4th at pp. 1127-1128 [the court cited the circumstance that the defendant did not challenge any of the sitting jurors for cause or exhaust available peremptory challenges, in support of its conclusion that hindsight demonstrated that retention of the case did not produce an unfair trial].)[2]
Defendant relies upon the circumstance that numerous jurors were excused for bias against the defense.[3] The number of excusals may have been more than would occur in an ordinary criminal trial, but it by no means suggests a community with sentiment so poisoned against [the defendant] as to impeach the indifference of jurors who displayed no animus of their own. (Murphy v. Florida, supra,421 U.S. at p. 803.)
Defendant also relies upon the circumstance that three years after his commission of the crimes, many prospective jurors still had a recollection of the murders. The relevant question is not whether the community remembered the case, but whether the jurors at [the defendants] trial had such fixed opinions that they could not judge impartially the guilt of the defendant. (Patton v. Yount (1984) 467 U.S. 1025, 1035; see Ramirez, supra, 39 Cal.4th at pp. 434-435 [Although only one member of the jury indicated . . . he had never heard of the case, they all stated they had not formed any opinion as to the guilt or innocence of [the defendant] . . . and could be fair].) We must distinguish between mere familiarity with [the defendant] or his past and an actual predisposition against him. (Murphy v. Florida, supra, 421 U.S. at p. 800, fn. 4.) Defendant asserts without citation to the record that four jurors believed he was guilty, but our review of the voir dire indicates all jurors demonstrated a willingness to set aside any preconceived notions and make their decision solely upon the evidence presented. (See Beck v. Washington, supra, 369 U.S. at p. 557 [ It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court ].)
Defendant further contends, however, that jurors assertions that they could be impartial should not be credited. In exceptional cases, adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors claims that they can be impartial should not be believed, [citation] . . . . [Citation.] The category of cases where prejudice has been presumed in the face of juror attestation to the contrary is extremely narrow. Indeed, the few cases in which the [high] Court has presumed prejudice can only be termed extraordinary, [citation], and it is well-settled that pretrial publicity itself even pervasive, adverse publicity does not inevitably lead to an unfair trial [citation]. [Citation.] This prejudice is presumed only in extraordinary cases not in every case in which pervasive publicity has reached most members of the venire. (Peoplev. Prince (2007) 40 Cal.4th 1179, 1216 (Prince).)
In Prince, supra, 40 Cal.4th 1179, we reviewed some of the extraordinary cases in which the high court has presumed prejudice from pretrial publicity. In one case . . . the critical feature was that a local television station in a relatively small community on several occasions broadcast the entire spectacle of the defendants jailhouse confession. [Citation.] (Id. at p. 1217.) In a second case, [t]he trial . . . had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, [in a third case, prejudice] arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to . . . news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. [Citation.] The reviewing court instead must look for indications in the totality of the circumstances that [the defendants] trial was not fundamentally fair. [Citation.] (Id. at pp. 1217-1218.)
The present case does not fall within the limited class of cases in which prejudice would be presumed under the United States Constitution. (Prince, supra, 40 Cal.4th at p. 1217.) The publicity adduced at the second change of venue motion, as at the first, was largely factual and noninflammatory. Nor is there evidence in the record that the jury selection process lacked solemnity. (Murphy v. Florida, supra, 421 U.S. at p. 799.) Moreover, the seated jurors, who were questioned on voir dire individually, either recalled nothing of the case or remembered few details. The trial court, which observed the jurors demeanor, expressly found they had demonstrated an ability to set aside any preconceived impressions derived from the media. Thus, no extraordinary circumstances are presented.
We conclude the trial court did not err in denying the second motion for change of venue.
2. Excusing prospective jurors for cause due to their views concerning the death penalty
Defendant contends the trial court erroneously excused two prospective jurors for cause based upon their views concerning the death penalty. We disagree.
a. Factual background
(1) Excusal of Prospective Juror A.S.
In Prospective Juror A.S.s questionnaire, she stated she Will Consider the death penalty, and drew an arrow pointing toward the Oppose and Strongly Oppose responses. She believed that the penalty should be exercised with great caution. One must be absolutely convinced of the guilt of the accused. He or she must have committed a crime for which they could never be forgiven and which demonstrates a disregard for human life. During voir dire by the court, she stated that choos[ing] the death penalty would be very difficult for me. . . . [T]he circumstances would have to be very aggravating. She also stated she would be capable of performing the weighing process required to determine the appropriate penalty; she would listen to all of the evidence and arguments before choosing a penalty; she could make a choice between the penalties, and she would not automatically choose one penalty over another.
When the defense asked whether she could vote for death if she concluded the death penalty was the appropriate punishment, A.S. responded, I think so. When the prosecutor inquired concerning the hesitancy reflected in her response, she agreed that although she could impose the death penalty on an intellectual level, emotionally and spiritually it was more difficult. She explained the basis of her inclination against the death penalty: I dont think its right to kill other people. And that doesnt mean thats not justified in very, very unusual cases, but I would not . . . take that lightly. Seems like a very grave issue. She stated she could vote to send a man to his death, but when pressed by the prosecutor to confirm that she could vote for the death penalty, she responded, Im not sure I could. The prosecutor asked, In other words, you dont know whether, if you got to that stage emotionally, then you could actually do it even though intellectually you believed it to be the appropriate decision? A.S. agreed, Thats true.
The prosecutor challenged A.S. for cause under Witt, supra, 469 U.S. 412. Over defense objection, the trial court sustained the challenge, stating, I believe that the juror was setting the signals early in the voir dire, and she exhibited some difficulty even going through the weighing process, when she had volunteered the concerns about the death penalty as it would affect her ability to go though the weighing process, but we got through that. But I think under these circumstances, that [the prosecutors] challenge should be granted because I believe that this jurors views would prevent or substantially impair the performance of her duties as a juror in accordance with [the] instructions.
(2) Excusal of Prospective Juror R.R.
In Prospective Juror R.R.s questionnaire, he circled the Strongly Oppose response when asked his view concerning the death penalty. In response to a question regarding the circumstances under which the death penalty was inappropriate, he wrote, all. During voir dire, he confirmed he was morally, philosophically, and intellectually opposed to the death penalty, but also indicated he understood that if the aggravating circumstances substantially outweighed the mitigating circumstances, he would be required to vote for death. The prosecutor then clarified that the law never would require a juror to vote for death. Following this clarification, R.R. stated he [a]bsolutely always would vote for life imprisonment without the possibility of parole, and if the aggravating evidence substantially outweighed the mitigating evidence, he would vote for life in [e]very instance.
The prosecutor challenged Prospective Juror R.R. for cause under Witt, supra, 469 U.S. 412. Over defense objection, the trial court sustained the challenge, stating, I think its abundantly clear after listening to this juror that when he finally realizes he has a freedom of choice after hearing the evidence, and that there is not going to be any directive as to which way he should vote, and the onus is on him and the choice is clearly his, he has indicated in every instance he would vote for life no matter what the evidence is. If given a choice, he would have to vote for life in prison without the possibility of parole.
b. Analysis
The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of that jurors duties in accordance with the courts instructions and the jurors oath. (Peoplev. Smith (2003) 30 Cal.4th 581, 601; see Witt, supra, 469 U.S. at p. 424.) The standard of review of the courts ruling regarding the prospective jurors views on the death penalty is essentially the same as the standard regarding other claims of bias. If the prospective jurors statements are conflicting or equivocal, the courts determination of the actual state of mind is binding. If the statements are consistent, the courts ruling will be upheld if supported by substantial evidence. (Peoplev. Horning (2004) 34 Cal.4th 871, 896-897.) Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors. (Uttecht v. Brown (2007) 551 U.S. 1, 9.)
A.S.s statements with respect to her ability to follow the law concerning imposition of the death penalty were equivocal. Although her questionnaire and initial voir dire indicated she could weigh the relevant factors and consider either penalty, her subsequent responses reflected significant hesitation regarding her emotional ability to impose the death penalty. The trial court was in a position, which we are not, to view her demeanor as she responded, and its determination of her state of mind is binding. Substantial evidence supports its ruling that A.S.s views concerning the death penalty would prevent or substantially impair her performance as a juror.
Contrary to defendants claim, R.R. did not make it clear that while he was reluctant to impose a death penalty, he would follow the law. Rather, R.R. struggled with the idea that he would be compelled to impose the death penalty if the aggravating circumstances substantially outweighed the mitigating circumstances. After he was informed he would have a choice concerning the appropriate penalty under those circumstances, he stated he always would vote for life imprisonment without the possibility of parole, regardless of the evidence. Nor, contrary to defendants claim, does the record indicate the court and the prosecutor tricked [R.R.] into disqualifying himself by misrepresenting that a juror could properly take the position that aggravation would never outweigh mitigation enough to warrant a death penalty, and then disqualif[ying] [R.R.] because he took that position. Rather, the prosecutor simply corrected R.R.s apparent belief that under certain circumstances, a juror would be required to impose the death penalty, and the court properly excused R.R. based upon R.R.s disclosure that he never would impose the penalty of death.
3. Prosecution challenges for cause
Defendant claims the trial court erroneously permitted the prosecutor to challenge four prospective jurors on the ground they were biased against the defense as a result of pretrial publicity. He contends that the prosecutor had no standing to make the challenges, and that the trial court erred in excusing the prospective jurors for cause. He also asserts that sustaining the challenges impaired his right to counsel under the Sixth, Eighth, and Fourteenth Amendments, and deprived him of a number of peremptory challenges equal to that allotted to the prosecution.
TO BE CONTINUED AS PART IV.
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[1] As to this, and almost every other appellate claim, defendant contends the alleged error infringed his constitutional rights. In those instances in which he did not present constitutional theories below, it appears either that (1) the appellate claim is one that required no objection to preserve it, or (2) the new arguments are based upon factual or legal standards no different from those the trial court was asked to apply but raise the additional legal consequence of violating the Constitution. To that extent, defendants new constitutional arguments are not forfeited on appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) No separate constitutional discussion is required, or provided, when rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or gloss raised for the first time on appeal. (Ibid.)
[2] Defendant contends he justified his failure to exhaust peremptory challenges by stating in the trial court that although he had eight challenges remaining, the venire included more than eight prospective jurors against whom he had made unsuccessful challenges for cause. He asserts that because it was futile . . . to try to eliminate all those who had been exposed to prejudicial publicity, he instead tried, in vain, to eliminate those . . . who had expressed an opinion that [defendant] was guilty. Nothing in these circumstances alters the principle that a partys failure to exercise available peremptory challenges indicates relative satisfaction with the unchallenged jurors. (Peoplev. Morris (1991) 53 Cal.3d 152, 185, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) As noted, defendant fails to identify any sitting juror he challenged for cause. Nor has he shown that exhausting his remaining peremptories would necessarily have resulted in the seating of a juror who ought to have been removed for cause. (Peoplev. Price (1991) 1 Cal.4th 324, 401.)
[3] Defendant asserts 83 prospective jurors were excused for bias against the defense. Below, defense counsel represented that 65 of the 240 prospective jurors who were questioned were excused on the ground that they were biased against the defense. The larger figure apparently includes jurors who were excused pursuant to defense challenge both for bias against the defense and under Wainwright v. Witt (1985) 469 U.S. 412 (Witt).
