Full opinion text
Opinion GEORGE, C. J. Defendant Richard Bert Stewart appeals from a judgment of the Contra Costa County Superior Court imposing a sentence of death following his conviction of three counts of first degree murder (Pen. Code, § 187), possession of a concealable firearm by a felon (§ 12021), and attempted arson (§ 455). The jury found true a multiple-murder special-circumstance allegation. (§ 190.2, subd. (a)(3).) The jury also found true the allegations that defendant personally used a firearm in the commission of the offenses. (§ 12022.5, subd. (a).) Defendant thereafter admitted two separate prior prison term allegations. (§ 667.5, subd. (b).) In addition to imposing a judgment of death on each murder conviction, the trial court declared that if for any reason the death sentence should not be carried out, defendant would serve a sentence of fife imprisonment without possibility of parole. The court then imposed and stayed a consecutive sentence of seven years eight months on the various remaining counts and enhancements. Defendant’s appeal is automatic. (§ 1239, subd. (b).) We shall affirm the judgment as to guilt and the special circumstance finding, but because of errors in the jury selection process we are compelled by controlling decisions of the United States Supreme Court to reverse the judgment of death and to remand the matter for a new penalty trial before a properly selected jury. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt); Davis v. Georgia (1976) 429 U.S. 122, 123 [50 L.Ed.2d 339, 97 S.Ct. 399]; Gray v. Mississippi (1987) 481 U.S. 648, 659-667 [95 L.Ed.2d 622, 107 S.Ct. 2045] (opn. of the court); id., at pp. 667-668 (plur. opn.); id., at p. 672 (cone. opn. of Powell, J.).) I. Facts and Procedural History A. Prosecution evidence Defendant blamed his mother, Gloria Pillow, and his stepfather, Weldon Ardell Pillow (Ardell), for his confinement in state prison. In 1989, a few months after being paroled, defendant shot to death Ardell and Gloria, along with Murray Lucas, a boarder who then was living with them. We set forth the relevant events leading to and following the commission of these crimes as reflected in the record before us. Upon being paroled from prison, defendant moved in with his girlfriend Donna Guthrie, who lived at the Atchison Village in Richmond, California. In late June 1989, defendant obtained a .22-caliber semiautomatic Jennings handgun from Frank Walker. Defendant’s cousin, Gary Beach, resided at a house owned by defendant’s stepfather Ardell, located on Harbour Way in Richmond. In mid-to-late June 1989, defendant and his girlfriend Donna visited that house, and while in the backyard defendant, holding a small gun wrapped in a handkerchief, fired a practice shot into an exterior garage wall. Rory Pillow—a half brother of defendant who lived in a trailer behind the Harbour Way house—saw and heard defendant fire the shot. After Rory objected to the gunfire, defendant placed the gun, still wrapped in a handkerchief, in his back pocket. During the evening of July 3, 1989, defendant visited the home of Shane Powell and Mary Perron, the next door neighbors of Ardell and Gloria, at 18th Street in Richmond. Defendant was upset and disturbed; Powell testified that defendant remarked that having been jailed made him “what he is today, and he’s not responsible for his actions, whatever they may be,” and that “society would just have to deal with that.” He complained to Perron and Powell that Ardell and Gloria were alcoholics who treated him like an outcast and embarrassed him, and that Gloria was responsible for his most recent commitment to prison, which resulted from his having been “caught in possession of a gun,” a violation of Ms “probation.” After approximately 20 minutes, defendant departed. Powell and Perón retired for bed about midmght and thereafter heard numerous explosions of early Fourth of July firecrackers. In the midst of those sounds of exploding firecrackers, Powell awoke at 2:00 or 3:00 a.m. to the sound of gunshots. He heard arguing voices coming from the Pillow home, and then heard Gloria scream, “No, Richard, no.” Within seconds, Powell heard two more gunshots, and then silence. Perón’s recollection was substantially similar. She remembered being awakened by a “blood curdling scream,” heard two shots, and then heard three more somewhat muffled shots. Powell and Perón discussed the matter and decided not to call the police, but instead to go back to sleep. When Perron and Powell arose the next morning at approximately 10:00 a.m., they noticed that the Pillow residence next door was unusually quiet. Eventually, Perron and Powell went to the back door of the Pillow home, where another neighbor, Phillip Smith, opened the unlocked back door. They smelled gas. Powell entered the house and closed the four open burners of the kitchen stove. Powell found Gloria’s body in a bedroom, and Powell and Smith left the house. Powell told Perron to call the police. The police and the fire department soon arrived and ventilated the house by opening the doors and windows—all of which, except the back door, had been locked. There were no signs of forced entry. The police found the body of Murray Lucas facedown on the floor of a bedroom near the kitchen. He had been shot in the head. In a bedroom near the living room, the police found Ardefl’s body lying facedown, halfway off a bed, with his knees on the floor. He had been shot three times in the head. Ardell’s bloody and badly broken metal eyeglasses were found on the bed. There were numerous lacerations near Ms nose and left eye, and the bone at the top of the left eye was fractured. Dr. Louis Daugherty, a forensic pathologist, testified that Ardell might have been struck in the face before being shot. A pair of scissors was in his left hand. Gloria’s body was found curled in a comer of the bedroom. She had been shot once in the head, and a pair of eyeglasses was near her right hand. Dr. Daugherty also found that an examination of Gloria’s blood reflected a blood-alcohol level of .25 percent— more than Airee times the limit for driving under the influence of alcohol. Gunpowder “stippling”—small fragments of gunpowder caused by the near proximity of a discharged firearm—was evident on each of the tiiree victims (the single wounds of Murray Lucas and Gloria, and one of Ardell’s tiiree wounds). Based upon the characteristics of the firearm and the stippling on each victim, Dr. Daugherty estimated that each of the three stippled shots was fired from a distance of three feet or less, with the shot into Murray Lucas being fired from the farthest distance, the shot into Gloria being the second farthest, and the shot (one of three) into Ardell being the closest. In the living room, officers found the family’s dog, apparently strangled to death. Also in that room the police found charred newspapers arranged around an oil lamp, forming a chain leading to the cushion of a chair. No bullet casings were found. An evidence technician testified that if a Jennings semiautomatic pistol had been fired in the house, one would expect to find bullet casings nearby, unless they had been picked up (by someone other than the police). Richmond Police Officer Socorro Moreno, who was assigned the task of conducting a “neighborhood check” of local residents, met Terry Lynn Guillory. Guillory initially identified himself by using only his first and middle names. Guillory told Moreno that about 1:00 a.m. on July 4, 1989, he heard approximately five consecutive gunshots and ran to look out the street from his living room window. Guillory explained that he saw a White male whom he knew as “Richard” peeking out from the front door of the Pillow home, 546 18th Street. At that point, according to what Guillory related to Moreno, Richard appeared to be panicked, said “Oh shit” or something to that effect, and retreated into the Pillow home. Eventually, in response to a telephone call from Richmond Detective Darrell Kimura, Guillory agreed to provide a tape-recorded statement concerning his observations. Subsequently, at trial, Guillory testified he had met defendant in the weeks preceding July 1989. Guillory then confirmed his earlier account to Richmond officers, explaining that in the early morning hours of July 4, 1989, he heard five gunshots and proceeded to the front of his house, where he had a view of the Pillow home, which was about 90 to 110 feet away, on the other side of the street. Guillory related that he saw, in the porch light or the street light, defendant’s head and shoulders emerge from the front door of the Pillow home, and that he saw defendant look up and down the street. Guillory explained he believed that he and defendant made eye contact, at which point defendant uttered something to the effect of “Oh, shit,” and retreated back inside the Pillow home. Guillory then went back to bed. When Guillory the next morning learned of the killings, he was concerned that Donna Guthrie, defendant’s girlfriend, and Donna’s mother, Maxine Corey, might be in danger. Guillory telephoned the Guthrie home at 11:00 a.m. to warn them that if defendant was there, they should make him leave. Guillory explained at trial that he had been reluctant to become involved in this case, but did so because Donna Guthrie told him she was afraid she would be falsely implicated in the shootings, and because Donna’s daughter, Cindy, was a friend of his. Guillory assured Donna he would be able to testify, truthfully, that he had not seen Donna’s car at the Pillow house at the time of the shootings. Guillory also admitted, however, that shortly after the shootings, he had attempted to collect $50 that, he claimed, he previously had lent to Donna. Guillory recounted that when he went to her home to collect the money, he found Alan Sjostrand (an inspector with the Contra Costa County District Attorney’s Office) and a civilian named Maurice Solvang at the Guthrie home—and that both Sjostrand and Solvang “jumped in [his] face” when he asked Donna for the money. Guillory never did collect the sum. Guillory confirmed he had identified defendant in an array of photographs shown to him by the police. Guillory also explained that on the morning after commission of the homicides (and contrary to his own testimony at the preliminary hearing), defendant had telephoned him. Guillory conceded that in this respect, he had lied at the preliminary hearing. On cross-examination, Guillory conceded that he had related to Inspector Sjostrand of having heard “talk on the street” to the effect that both Maurice Solvang and Donna Guthrie had been inside the Pillow home on the night of the murders, but that he had refused to tell Inspector Sjostrand where, or from whom, he had heard this information. Guillory also testified he had been told by “Pat”—a person who had lived with Donna Guthrie—that there had been a plan to induce Guillory to take Donna Guthrie’s daughter Cindy, and Cindy’s friend, to Sacramento, at which time, according to Pat, Guillory was supposed to have been “hit” and made to end up “floating” in the Sacramento River. At the time of his trial testimony, Guillory was in jail, having been arrested approximately one week earlier by Inspector Sjostrand on driving under the influence charges. One of those charges had been pending prior to the commission of the murders underlying the present case. When he was arrested, Guillory reconfirmed to Sjostrand that he had seen defendant peek out from his house after the shootings and utter an obscenity upon seeing him, but threatened to deny having seen and heard defendant. At trial, as at the preliminary hearing, Guillory was provided use immunity for his testimony relating to two questions: Whether he previously had purchased an “8-ball” (meaning an eighth of an ounce of methamphetamine) from defendant, and whether he had made such a purchase from Donna Guthrie. Guillory answered that he had made one such purchase from each person but that he had not been using drugs on July 3 or 4, 1989. Guillory further testified that no promises had been made to him by any member of the prosecution or any police agency in exchange for his trial testimony. Richard Schorr, a criminalist employed by the Contra Costa County Sheriff’s Office, testified that .22-caliber bullet fragments retrieved from the three victims were consistent with ballistic evidence retrieved by officers from the garage at the Harbour Way residence, where, as noted above, defendant had test-fired a handgun. Because he had only bullet fragments with which to make a comparison, Schorr could not be positive that all of the bullets had been fired from the same gun. Gloria’s funeral was held on July 9, 1989. Defendant, who was not then in custody, did not attend. Defendant was arrested on July 11, 1989. Thereafter, Rory Pillow (Ardell’s son) found, in a closet of the Harbour Way house, letters that defendant had sent to his mother, Gloria, while he was in prison. Similarly, Louis Alimonti, Gloria’s son and defendant’s half brother, found in a dresser in the Pillow house on 18th Street additional letters that defendant had written to Gloria when defendant was in prison. Prior to the preliminary hearing on December 6, 1989, defendant made numerous attempts to place collect telephone calls to his cousin Gary Beach. Finally Beach accepted a call, and defendant asked Beach to testify that the gun that defendant had test-fired at the Harbour Way house had been a .25- or .32-caliber weapon—and not a .22-caliber firearm. Although defendant told Beach that this testimony could mean “life or death” for him, Beach replied that he would have to “let him know,” and did not promise to so testify. Defendant thereafter made numerous additional attempts to contact Beach by collect telephone calls, but Beach would not accept any further calls. Donna Guthrie, defendant’s girlfriend, subsequently supplied to Inspector Sjostrand approximately 25 letters that defendant had written to her after his arrest in mid-July 1989. One of those letters, postmarked November 10, 1989, was introduced and read to the jury. It stated in part: “ ‘I’m just waiting like a lion, ready to pounce. I’ve read all the Evidence Code and a lot of law material, and have more books coming. Remind me when I talk to you to explain to you how one little mess can be cleaned. ... As far as the “cookie” is concerned, he’s practically begging them to let him help to hang me. He’s a fucking punk. But I’m not going to trip up. . . . So take care of things. You know the rules!’ ” (The reference here to “cookie”—and elsewhere to “Oreo”—is a pejorative term that defendant used to describe Guillory, who is of mixed race.) Consistent with the suggestion in defendant’s letter, defendant attempted to suppress the testimony of Terry Guillory through a circuitous series of events, as follows. After his arrest, defendant befriended Jacqueline Coghlan—then the long-term girlfriend of Rick Alimonti, another half brother of defendant’s. Soon, Coghlan ended her relationship with Alimonti, and defendant began to telephone Coghlan. She accepted collect calls from him on a daily basis from September to December 1989. Finally, in late November 1989, defendant arranged for Coghlan to visit defendant’s father’s home in order to collect a check for $1,000. Defendant told his father that the money would be used for legal services that Coghlan needed in order to settle a property claim involving her former boyfriend. Coghlan retrieved the check from defendant’s father on Thanksgiving Day, 1989, cashed it the next day, and, as instructed by defendant, made plans to deliver the funds to a person whom she came to know as Maurice, and whom she assumed was a drug dealer and user. Maurice, however, failed to show up at the appointed meeting time. Coghlan meanwhile decided to remove $200 from the $1,000 proceeds for her own use, in part because she thought that Maurice was a “person who takes drugs and deals drugs” and that giving him so much money “was a waste because I felt I could have used it” better. After learning of the failed attempt to transfer the funds to Maurice, defendant directed Coghlan to make a second attempt. At defendant’s instructions, Coghlan went to a home in El Sobrante, where defendant (from jail) called Coghlan and further instructed her to place a telephone call to a certain number and speak to a man. Coghlan did so and spoke with someone who told her he had arrived late for the prior appointment. They made plans to meet at a nearby Foster’s Freeze restaurant. Coghlan drove there and was approached by a man as she sat in her car. She handed him an empty pack of cigarettes, with $800 inside. Coghlan later learned that the man was named Maurice. Subsequently—on December 5, 1989, the day before commencement of the preliminary hearing in defendant’s case—the prosecutor and Inspector Sjostrand went to the home of defendant’s girlfriend, Donna Guthrie, in order to interview her. There they also found Maurice Solvang, whom Inspector Sjostrand interviewed as well. During those interviews, Sjostrand learned that Guthrie and Solvang anticipated receiving a telephone call from defendant, and Sjostrand made plans to listen in and record the conversation on the phone’s answering machine. Eventually a collect call from someone identified as “Richard” was received and accepted. After initial remarks, the caller reported that he was “[g]etting ready for my little court in the morning.” Maurice asked, “How you doing?” The caller responded; “Okay. Anything ever work out?” Maurice replied, “Oh, yeah. I think so. I mean—um—along which lines?” The caller responded: “Huh?” The conversation soon became unintelligible, and the line disconnected. Later that day, while conducting a second and more extensive interview of Solvang, the prosecution learned of a plot by defendant to prevent Terry Guillory from testifying. The prosecutor and Sjostrand subsequently went to Guillory’s residence to notify him of this plot, but did not find him at home. The following day—December 6, 1989—Inspector Sjostrand interviewed Coghlan during a break in defendant’s preliminary hearing. Eventually, Coghlan admitted that the money was designed to persuade the person whom she knew as “the Oreo”—Terry Guillory—not to testify concerning his having seen defendant at the Pillow home on the night of the killings. Coghlan stated, however, that she did not believe there had been a plan to have Guillory killed. After this interview, Sjostrand placed Coghlan under arrest. Coghlan subsequently testified at defendant’s trial, as set out above, under a grant of limited immunity from prosecution for the offense of attempting to dissuade a witness from testifying or being an accessory after the fact. B. Defense evidence After the prosecution rested, the defense presented the following evidence. William Glass, a private attorney, testified that in the days after the killings he met with defendant and Donna Guthrie and agreed to help arrange defendant’s surrender to the Richmond police. The plan was for Glass to meet with defendant at defendant’s father’s home, and then drive from there, with defendant, to police headquarters. But that plan went awry after Glass telephoned the Richmond police to ask where to surrender defendant. By the time Glass arrived at defendant’s father’s home, he found seven or eight patrol cars already on the scene and saw that defendant had been arrested. Contra Costa County Deputy Public Defender Anthony Thompson testified on defendant’s behalf that he previously had represented defendant’s mother, Gloria, on criminal charges, and that he also had represented defendant in an earlier matter in which defendant had been charged with stealing a gun and some coins from Ardell. Thompson stated that Gloria had attended defendant’s various court proceedings, and that in those circumstances she and defendant had been “very” friendly to each other. In addition, Thompson testified that during the earlier proceedings defendant repeatedly expressed a desire to transfer ownership of his vehicle to his mother (apparently to make up for the value of the lost gun and coins). On cross-examination of Thompson, however, the prosecution read excerpts from two letters that defendant had written to his mother while in custody following these earlier proceedings, demonstrating that defendant in fact blamed his mother and Ardell for his conviction. The first letter read: “ ‘Now, let me say something. It hurts and pisses me off that you would say something like you did, that if I wouldn’t sign [the vehicle] over, you’d—you and Ardell—would go to court and try to get me in all kinds of trouble. I’ve been up all night here in prison, mad over it, and the more I think, the madder I get. That fucking husband of yours coins weren’t worth no fucking $2,000, and neither is his two-bit gun or any Visa trips which bitch Billie ran up.’ ” The second letter read: “ ‘How the hell does a person feel when their own parents tell them not to come to their house or act mistrustful of them? Well, why then should the person care what they do? They aren’t loved or trusted anyway. They hurt and become mean and bitter.’ ” Defendant’s father, Richard Stewart, Sr., testified that defendant visited him and his wife in the early evening of July 3, 1989, for approximately 45 minutes. Richard, Sr., recounted that defendant seemed normal, that no apparent problems occurred, but that petitioner was slightly upset that the person who had dropped him off at his father’s home had driven away immediately instead of coming in or waiting for defendant. Richard, Sr., gave defendant $6, and defendant then left. Craig Rock, a special investigator for the public defender’s office, testified concerning his interview with Terry Guillory. Rock stated that the window from which Guillory claimed to have looked out and seen defendant provided a view of the Pillow home’s front door (which was 90 to 110 feet away) but that the view “could be partially obscured by a telephone pole” if one looked out of the window from a certain position. Rock also reported that nearby trees would partially block light from streetlights, thereby reducing the light that would illuminate the Pillow house. On cross-examination, however, Rock conceded that a light fixture on the Pillows’ front porch, and light from within that residence, would illuminate a person of average height standing in the doorway, and that additional light from within the structure also may have illuminated a person standing at that location. Finally, Rock testified that Guillory told him that he hoped defendant never would be released from custody because “[h]e’s got my name now.” At the conclusion of the guilt phase of the trial, the jury convicted defendant of the charged offenses and found true the allegations and special circumstance indicated above. C. Penalty phase proceedings Prior to commencement of the penalty phase of the trial, defendant moved to dismiss his trial counsel, Public Defender Charles James, and represent himself. The trial court required defendant to reconsider the matter overnight, but when he renewed the motion the following day the court granted his request to represent himself and reappointed James as advisory counsel. At the penalty phase, the prosecution introduced the following evidence of prior violent crimes committed by defendant as evidence in aggravation: (1) a March 1981 robbery at knifepoint on the campus of the University of California at Berkeley; (2) an October 1981 armed robbery in El Cerrito; (3) an October 1981 violent home invasion and attempted robbery in San Pablo; (4) a mid-1989 stabbing of Vincent Trillo, who then was living with Rory Pillow in the trailer behind the house on Harbour Way; (5) a late June 1989 robbery of Frank Walker, from whom defendant stole the .22-caliber Jennings semiautomatic pistol apparently used in the killings; (6) an April 7, 1990, telephone threat to “reach out and touch” Walker “real hard” if he were to testify against defendant at the penalty phase of the trial; and (7) a late July 1990 stabbing of a fellow jail inmate in the throat with a pencil. In his own behalf, defendant made a very brief opening statement and then immediately rested without presenting any evidence. Two days later, both parties presented closing arguments and the jury was instructed. As noted above, the jury returned a verdict of death. H. Analysis A. Excusal of prospective jurors for cause Defendant contends the trial court erroneously excused five prospective jurors for cause, based solely upon their written answers to a jury questionnaire concerning their views relating to the death penalty, and without any opportunity for follow-up questioning during which the court and counsel might have been able to clarify the responses and determine whether, in fact, the prospective jurors were disqualified from service. As we observed in People v. Cunningham (2001) 25 Cal.4th 926 [108 Cal.Rptr.2d 291, 25 P.3d 519] (Cunningham), decisions of the United States Supreme Court and this court establish that “[a] prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would '“prevent or substantially impair” ’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath. (Wainwright v. Witt[, supra,] 469 U.S. 412, 424; People v. Crittenden (1994) 9 Cal.4th 83, 121 [36 Cal.Rptr.2d 474, 885 P.2d 887]; People v. Mincey (1992) 2 Cal.4th 408, 456 [6 Cal.Rptr.2d 822, 827 P.2d 388].)[] ' “ ‘A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.’ [Citation.]” [Citation.] In addition, “ ‘[o]n appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.’ [Citations.]” ’ [Citation.]” (Cunningham, supra, 25 Cal.4th 926, 975; see also People v. Heard (2003) 31 Cal.4th 946, 958 [4 Cal.Rptr.3d 131, 75 P.3d 53] (Heard).) Applying these standards in this case, we conclude, for the reasons set forth below, that the trial court erred in excusing five prospective jurors for cause based solely upon their checked responses and written answers on a jury questionnaire. The trial court, with input from counsel, prepared a 13-page written questionnaire for completion by the prospective jurors. Before distributing the questionnaire, the court orally advised the assembled prospective jurors concerning “essential. . . background ... on the case and the procedure to be followed.” The court explained that the prospective jurors would be asked “some questions regarding the death penalty” because the death penalty was a possibility in the case, and the court was obligated to determine whether each prospective juror could be “be fair to both the prosecution and to the defendant concerning the question of punishment, if we get to that decision.” The court proceeded to explain that the case would proceed with a guilt phase—at which the jury would be asked to determine whether, beyond a reasonable doubt, defendant is guilty of the charged offenses, and whether any defined special circumstance is true. The court explained that only if the jury found guilt, and found an alleged special circumstance allegation true, would the jury address a second, or penalty, phase of the trial, at which point the jury would be “asked to select—to choose—between two possible penalties: the death penalty or life [imprisonment] without possibility of parole.” The court explained that the prosecution at a penalty phase might offer aggravating evidence and the defendant might offer mitigating evidence, and continued: “Now, the jury, in the penalty phase, is not asked simply to do a mechanical weighing of these aggravating and mitigating circumstances. It’s not putting them on an imaginary scale and seeing which way it tips. The jury is free to assign whatever moral or sympathetic value it deems appropriate to each and all of the various factors that it is allowed to consider in the choice of penalty decision.” The court then asked each prospective juror to complete a questionnaire and leave it with the court’s bailiff. Question No. 35—the only question that focused on prospective jurors’ views concerning the death penalty—read in relevant part as follows: “As explained during the orientation, the Court is asking questions regarding your opinions about the death penalty because one of the possible sentences for a person convicted of the charges the prosecution has filed is the penalty of death. Thus, the Court must determine whether you could be fair to both the prosecution and the defendant if you should ever be called upon to make a decision as to the choice of penalty in this case. “By asking these questions, the Court is not suggesting in any way that the charges are true and that the only question the jury will have to decide is whether the penalty is to be life imprisonment without parole or death in the gas chamber. It is only because the case could involve such a decision, that the Court must ask you about your opinions on this subject even though it may never be required in this trial. With these comments in mind, please answer the following questions. If you don’t understand the question, please so indicate. “(1) Do you have a conscientious opinion or belief about the death penalty which would prevent or make it very difficult for you: “(a) To find the defendant guilty of first degree murder regardless of what the evidence might prove?—() Yes () No “(b) To find a special circumstance to be true, regardless of what the evidence might prove?—() Yes () No “(c) To ever vote to impose the death penalty?—() Yes () No “If your answer to (a), (b) or (c) is ‘Yes,’ please explain [in the space provided].” After the prospective jurors completed their questionnaires and the results were shared with the court and counsel for both parties, the court met with counsel, out of the presence of the prospective jurors, to rule on a number of stipulated challenges for cause—that is, the elimination of those prospective jurors who both counsel agreed should be excused for cause. At the outset, the prosecutor asked for clarification that “[t]he court is anticipating making at least some rulings with respect to cause based upon exclusively the—what would be fairly characterized as ‘unambiguous’ answers in the questionnaire.” The court confirmed that intention but commented that an ambiguous response “would have to be cleared up” by questioning the prospective juror. Defense counsel, expressing no objection to this general plan, concurred in the court’s assertion that “the ambiguous ones . . . —they’re going to have to be done individually.” A short while later, the court reiterated its plan, stating that, with regard to prospective jurors as to whom the questionnaires showed “ambiguous responses, those persons can either be deferred to our afternoon or tomorrow’s session . . . ,” The court proceeded to grant 17 stipulated challenges for cause, based solely upon each prospective juror’s written responses to the questionnaires. The court deferred ruling on three prospective jurors whom defendant wished to challenge for cause, commenting that “the answers in the questionnaire do not on their face give rise to a challenge for cause” and that “we’re just going to have to see what they say when we talk to them.” The court then turned its attention to the prospective jurors whom the prosecutor, alone, wished to challenge for cause. The prosecutor challenged Juror No. 8 “for cause based upon the questionnaire.” That prospective juror had checked “No” in response to question No. 35(l)(a) and (b), thereby indicating that he or she did not “have a conscientious opinion or belief about the death penalty which would prevent or make it very difficult” to find defendant guilty of first degree murder, or to find a special circumstance to be true, “regardless of what the evidence might prove.” But Prospective Juror No. 8 also had checked “Yes” with regard to question No. 35(l)(c)—thereby indicating that he or she had a “conscientious opinion or belief about the death penalty which would prevent or make it very difficult” to “ever vote to impose the death penalty.” In addition, in response to the questionnaire’s direction to “explain” any “Yes” answer, Prospective Juror No. 8 had written, “I do not believe a person should take a person’s life. I do believe in life without parole.” The court asked to hear the view of defense counsel, who objected to excusal for cause on the basis that “because of the global nature of the [question No. 35](l)(c) inquiry,” coupled with the written response, there existed ambiguity as to whether the prospective juror would be able to serve and “follow the instructions of the court.” The court summarily dismissed these concerns, ruling immediately as follows: “All right. I’m satisfied that this is an unambiguous expression of opinion here especially with the added handwritten portion that says, T do not believe a person should take a person’s life.’ ” Thereafter the prosecutor also challenged Jurors No. 53, 59, 93, and 122, each of whom, like Prospective Juror No. 8, had checked “No” in response to question No. 35(l)(a) and (b), and had checked “Yes” with regard to question No. 35(l)(c). In response to the direction to “explain” any “Yes” answer, Prospective Juror No. 53 wrote: “I am opposed to the death penalty.” Prospective Juror No. 59 wrote: “I do not believe in capit[a]l punishment.” Prospective Juror No. 93 wrote: “In the past, I supported legislation banning the death penalty.” Prospective Juror No. 122 wrote: “I don’t believe in irreversible penalties. A prisoner can be released if new information is found.” Again, defense counsel objected to each of the prosecutor’s motions for excusal for cause on the ground that the checked answers and brief written comments left ambiguity as to whether each prospective juror would be able to serve and follow the instructions of the court, notwithstanding his or her personal opposition to the death penalty. As to each objection, the court found the juror’s checked answer and brief written response to be clear and unambiguous, and granted the challenge for cause. On appeal, defendant asserts that each of the trial court’s rulings granting the prosecution’s five for-cause challenges was erroneous. We agree that the trial court erred in excluding these prospective jurors on the basis of their questionnaire responses alone. Before granting a challenge for cause concerning a prospective juror, over the objection of another party, a trial court must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views would “ ‘prevent or substantially impair’ ” the performance of his or her duties (as defined by the court’s instructions and the juror’s oath) (Witt, supra, 469 U.S. 412, 424) “ ‘ “ ‘in the case before the juror’ ” ’ ” (People v. Ochoa (2001) 26 Cal.4th 398, 431 [110 Cal.Rptr.2d 324, 28 P.3d 78], italics omitted.). The prosecution, as the moving party, bore the burden of demonstrating to the trial court that this standard was satisfied as to each of the challenged jurors. (Witt, supra, 469 U.S. 412, 423 [“As with any other trial situation where an adversary wishes to exclude a juror because of bias, ... it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality .... It is then the trial judge’s duty to determine whether the challenge is proper”].) In resting its motion solely upon the prospective jurors’ checked answers and brief written comments on the juror questionnaire, the prosecution apparently acted on the premise that those answers and comments were fully adequate, standing alone, to support a determination by the court that each prospective juror’s views would prevent or substantially impair the performance of his or her duties as a juror in the case before the juror. As we shall explain, this premise was mistaken. As noted above, question No. 35(l)(c) asked each prospective juror whether his or her conscientious opinions or beliefs concerning the death penalty would either “prevent or make it very difficult” for the prospective juror “to ever vote to impose the death penalty.” (Italics added.) In light of the gravity of that punishment, for many members of society their personal and conscientious views concerning the death penalty would make it “very difficult” ever to vote to impose the death penalty. As explained below, however, a prospective juror who simply would find it “very difficult” ever to impose the death penalty, is entitled—indeed, duty bound—to sit on a capital jury, unless his or her personal views actually would prevent or substantially impair the performance of his or her duties as a juror. Decisions of the United States Supreme Court and of this court make it clear that a prospective juror’s personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case under Witt, supra, 469 U.S. 412. In Lockhart v. McCree (1986) 476 U.S. 162, 176 [90 L.Ed.2d 137, 106 S.Ct. 1758] (Lockhart), the high court observed that “not all those who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Similarly, in People v. Kaurish (1990) 52 Cal.3d 648, 699 [276 Cal.Rptr. 788, 802 P.2d 278] (Kaurish), we observed: “Neither Witherspoon [v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]] nor Witt, [supra, 469 U.S. 412,] nor any of our cases, requires that jurors be automatically excused if they merely express personal opposition to the death penalty. The real question is whether the juror’s attitude will ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ (Wainwright v. Witt, supra, 469 U.S. at p. 424, fn. omitted.) A prospective juror personally opposed to the death penalty may nonetheless be capable of following his oath and the law. A juror whose personal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded, unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict.” (Italics added.) Kaurish, supra, 52 Cal.3d 648, recognizes that a prospective juror may not be excluded for cause simply because his or her conscientious views relating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would make it very difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror’s conscientious opinions or beliefs concerning the death penalty would make it very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will “substantially impair the performance of his [or her] duties as a juror” under Witt, supra, 469 U.S. 412. In other words, the question as phrased in the juror questionnaire did not directly address the pertinent constitutional issue. A juror might find it very difficult to vote to impose the death penalty, and yet such a juror’s performance still would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court’s instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty under the law. It follows that a qualified juror might well answer “Yes” to the inquiry posed in question No. 35(l)(c), and yet, in response to brief follow-up questioning, persuasively demonstrate an ability to put aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and make that very difficult determination concerning the appropriateness of a death sentence. Such a prospective juror would not be substantially impaired in performing his or her duties as a juror. The record here, however, suggests that the trial court erroneously equated (i) the nondisqualifying concept of a very difficult decision by a juror to impose a death sentence, with (ii) the disqualifying concept of substantial impairment of a juror’s performance of his or her legal duty, and failed to recognize that question No. 35(l)(c), standing alone, did not elicit sufficient information from which the court properly could determine whether a particular prospective juror suffered from a disqualifying bias under Witt, supra, 469 U.S. 412, 424. Nor did the brief written answers supplied by the five prospective jurors, considered in conjunction with their checked answers to question No. 35, provide an adequate basis upon which to dismiss any of those jurors for cause. As noted, Prospective Juror No. 8 wrote, “I do not believe a person should take a person’s life. I do believe in life without parole.” We understand these two sentences as stating a generalized opposition to the death penalty, and approval of the sentence of life in prison without possibility of parole. But as noted above, Lockhart, supra, 476 U.S. 162, 176, and Kaurish, supra, 52 Cal.3d 648, 699, make clear that many members of society—and thus many prospective jurors—may share those exact same sentiments, and yet remain qualified to sit as a juror under the standard set out in Witt, supra, 469 U.S. 412, 424. To be sure, Prospective Juror No. 8’s checked answer to question No. 35(l)(c) and written comment quoted above provided a preliminary indication that the prospective juror might prove, upon further examination, to be subject to a challenge for cause. Absent clarifying follow-up examination by the court or counsel, however—during which the court would be able to further explain the role of jurors in the judicial system, examine the prospective juror’s demeanor, and make an assessment of that person’s ability to weigh a death penalty decision—the bare written response was not by itself, or considered in conjunction with the checked answer, sufficient to establish a basis for exclusion for cause. We reach the same conclusion with respect to the four other prospective jurors who were excused over defense objection. Prospective Juror No. 53 wrote: “I am opposed to the death penalty.” But the same general opposition might be stated by many jurors who are properly qualified to sit on a death penalty jury, and is not disqualifying in and of itself, or considered in conjunction with the checked answer. (Lockhart, supra, 476 U.S. 162, 176; Kaurish, supra, 52 Cal.3d 648, 699.) Prospective Juror No. 59 wrote: “I do not believe in capit[a]l punishment.” That same juror, however, also wrote, “I don’t know” in response to question No. 35(2), which (as observed ante, fn. 8) probed personal opinions or beliefs favoring the death penalty. At a minimum, this juror’s written responses suggested ambiguity and a need for clarification on oral voir dire; at most, this juror, like those addressed above, expressed a general opposition to the death penalty that is not, by itself or considered in conjunction with the checked answer, disqualifying. Prospective Juror No. 93 wrote: “In the past, I supported legislation banning the death penalty.” Again, the same might be said by many jurors who are properly qualified to sit on a death penalty jury. Disagreement with the current state of the law is not disqualifying by itself or considered in conjunction with the checked answers. Finally, Prospective Juror No. 122 explained, “I don’t believe in irreversible penalties. A prisoner can be released if new information is found.” This explanation, reflecting a concern regarding the risk of error in the criminal justice process, is not disqualifying by itself or considered in conjunction with the checked answers. As with Prospective Juror No. 8, the combination of checked answers and written responses of these other four potential jurors (Nos. 53, 59, 93, and 122) provided a preliminary indication that each juror might prove, upon further examination, to be subject to a challenge for cause. Again, however, absent clarifying follow-up examination, during which the court may have (i) further explained the role of jurors, (ii) probed, among other issues, whether each prospective juror could undertake the decision described in question No. 35(l)(c) if he or she were personally satisfied beyond a reasonable doubt concerning defendant’s guilt, and (iii) assessed each person’s ability to faithfully and impartially weigh a death penalty decision, the bare checked answers and brief written comments were insufficient to establish substantial impairment of these prospective jurors. In concluding that all five prospective jurors (Nos. 8, 53, 59, 93, and 122) were erroneously excused for cause based solely upon the combination of their checked answers to question No. 35(l)(c) and their brief written comments, we need not and do not hold that a trial court never may properly grant a motion for excusal for cause over defense objection based solely upon a prospective juror’s checked answers and written responses contained in a juror questionnaire. We are, however, unaware of any authority upholding such a practice. In United States v. Chanthadra (10th Cir. 2000) 230 F.3d 1237 (Chanthadra), the United States Court of Appeals for the Tenth Circuit—while explicitly reserving judgment on the broad question of whether a trial court always has an obligation “to voir dire prospective jurors before removing them for cause based on their views on the death penalty” (id., at p. 1269)—found it necessary to reverse a death penalty judgment after the trial court, over objection, excused nine jurors for cause, based solely upon the jurors’ responses to a juror questionnaire. The court in Chanthadra, reviewing the record with respect to only one of those prospective jurors, found that the prospective juror’s written responses, in and of themselves, did not establish that the juror was disqualified to serve under the standard set forth in Witt, supra, 469 U.S. at page 424 (Chanthadra, supra, at pp. 1270-1272) and thus found that the trial court erred by granting the challenge. (Id., at p. 1272; cf. State v. Anderson (2000) 197 Ariz. 314 [4 P.3d 369, 372-379] (Anderson) [finding error in excusing three jurors over objection for cause based solely upon each juror’s responses to a juror questionnaire].) Like the court in Chanthadra, supra, 230 F.3d 1237, 1272, we do not suggest that all or indeed any of the prospective jurors at issue in this case eventually would have withstood a properly adjudicated challenge for cause. We simply do not know how these potential jurors would have responded to appropriate clarifying questions posed to them by the trial court. Had the trial court conducted a follow-up examination of each prospective juror and thereafter determined (in light of the questionnaire responses, oral responses, and its own assessment of demeanor and credibility) that the prospective juror’s views would substantially impair the performance of his or her duties as a juror in this case, the court’s determination would have been entitled to deference. (Witt, supra, 469 U.S. 412, 426-430; see, e.g., People v. Ervin, supra, 22 Cal.4th 48, 70-71 [deferring to trial court’s finding, based upon voir dire responses and prospective jurors’ demeanor, that prospective jurors had demonstrated inability to impose death penalty]; Chanthadra, supra, 230 F.3d 1237, 1269-1270.) In according deference on appeal to trial court rulings on motions to exclude for cause, appellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record. (Chanthadra, supra, 230 F.3d 1237, 1270.) As the high court observed in Witt, supra, 469 U.S. 412, 428, “the question whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman’s state of mind . . . based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.” Indeed, as the high court noted in Witt, “ ‘[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case.’ ” (Id., at p. 428, fn. 9, quoting Reynolds v. United States (1879) 98 U.S. 145, 156-157 [25 L.Ed. 244].) In the present matter, however, the trial court’s determination was informed by no more information than the cold record of the five prospective jurors’ check marks and brief handwritten comments—the exact same information that we have before us now. (Accord, Chanthadra, supra, 230 F.3d 1237, 1270.) As explained above, that information was insufficient to support an assessment, required by Witt, supra, 469 U.S. 412, 424, that any of the five prospective jurors would be unable faithfully to perform the duties required of a juror by the law. Accordingly, we conclude that, on the record before the trial court (and before us), the trial court erred in dismissing the five prospective jurors for cause without first conducting any follow-up questioning. Indeed, although the poor phrasing of the juror questionnaire used in this case contributes to our conclusion that the prospective jurors were excused in violation of Witt, supra, 469 U.S. 412, 424, we note that even if the questionnaire had tracked the “prevent or substantially impair” language of Witt, we still would find that the prospective jurors could not properly be excused for cause without any follow-up oral voir dire by the court. In opposing this conclusion, the People raise a number of arguments, none of which we find persuasive. The People assert that defendant waived any objection to “use of a juror questionnaire for the purpose of death qualification.” To the extent the People assert that defendant waived objection to the use of a questionnaire in which death qualification questions may be asked, we find it unnecessary to resolve that issue, because undoubtedly it was proper for the court to employ a juror questionnaire, and defendant had no right to prevent the use of a juror questionnaire that included death-qualification questions. But to the extent the People assert that defendant waived objection to the trial court’s decision to resolve the prosecution’s five motions for excusal based solely upon each prospective juror’s checked answers and brief written comments, we disagree. Our review of the record discloses no indication that defendant, explicitly or implicitly, conceded the propriety of that course of action. Indeed, as explained above, the record discloses that the court clearly assured both counsel that it would conduct oral voir dire in order to address any ambiguous responses (see ante, fn. 10), and thereafter defense counsel repeatedly objected to each of the five excusáis here at issue on the ground that the questionnaire’s checked answers and brief written responses did not afford sufficient grounds for excusal under the standard set out in Witt, supra, 469 U.S. 412, 424. The People also assert that defendant waived any objection to the trial court’s use of the phrase “prevent or make it very difficult” (italics added) instead of Witfs language, “prevent or substantially impair,” in question No. 35(1). As the People observe, the trial court, apparently without objection, inserted the italicized term into its own proposed formulation of question No. 35(1) after having read a similar phrase (“very hard—if not impossible”) in one of four questions that defendant had submitted in response to the trial court’s specific request for proposed juror questionnaire language. The People’s argument appears to be one of invited error, not waiver. In any event, as explained below, the People’s assertion—however characterized—lacks merit. In response to the trial court’s request for proposed juror questionnaire language, defense counsel submitted four death-qualification questions, the last of which employed the phase, “very hard—if not impossible.” But the context in which that phase was suggested by defense counsel to the trial court was significantly different from the context in which the trial court’s revised phrasing, “prevent or make it very difficult,” ultimately was employed. It is clear that the prospective jurors’ answers to written questions— however phrased—never were intended by defense counsel to provide the sole information upon which the trial court would base its determination of contested challenges for cause. Indeed, as noted above, the trial court repeatedly had confirmed during pretrial discussions that it would undertake appropriate oral voir dire of jurors who were challenged for cause. In suggesting questionnaire language at the trial court’s specific behest, there is no indication that defense counsel contemplated that the trial court subsequently would rely solely upon the juror questionnaires and refuse to conduct any oral voir dire before ruling on the People’s five contested for-cause challenges. Accordingly, we perceive no basis upon which to conclude that defendant is procedurally barred from raising the claim that the trial court erred by granting the People’s contested challenges for cause, based solely upon the prospective jurors’ answers to question No. 35(l)(c) as phrased, and their brief written responses. The People also assert that “[i]n any event, the prospective jurors who were excused here, to a person, made it clear that a death verdict would be more than ‘very difficult.’ [Citations.] Their explanations were emphatic. If there was any impropriety in . . . the questionnaire’s not calling for a more emphatic answer than whether the jurors might find it ‘very difficult’ to apply the state’s death penalty law, any shortcomings were cured by the uniform strength of the excused jurors’ unequivocal responses.” As explained above, although the checked answers of the prospective jurors to the question as posed (and their brief written comments) may well have contributed support to a subsequent determination that the trial court might have reached after oral voir dire and an opportunity to observe the demeanor and assess the credibility of each prospective juror that each was subject to challenge for cause under Witt, supra, 469 U.S. 412, 424, the bare checked answers and brief written comments, in themselves, were insufficient to support such a challenge. (Accord, Chanthadra, supra, 230 F.3d 1237, 1270-1272; Anderson, supra, 4 P.3d 369, 373-374.) Finally, citing portions of the record in which the trial court inquired of counsel whether they wished to submit follow-up questions to prospective jurors, the People assert that there was in fact substantial opportunity for follow-up questioning of these jurors. But because the People’s cited examples of opportunities for follow-up questioning occurred after the trial court had granted the prosecution’s contested challenges for cause—and long after those prospective jurors were excused from service—those opportunities did not serve to address or cure the court’s error in granting the contested for-cause challenges here at issue. For the reasons set forth above, we conclude that the record does not support the trial court’s excusáis for cause under the governing legal standard (Witt, supra, 469 U.S. 412, 424), and that under the compulsion of United States Supreme Court cases this error requires reversal of defendant’s death sentence, without inquiry into prejudice. (See Davis v. Georgia, supra, 429 U.S. 122, 123; Gray v. Mississippi, supra, 481 U.S. 648, 659-667 (opn. of the court); id., at pp. 667-668 (plur. opn.); id., at p. 672 (cone. opn. of Powell, J.); People v. Ashmus (1991) 54 Cal.3d 932, 962 [2 Cal.Rptr.2d 112, 820 P.2d 214]; accord, Chanthadra, supra, 230 F.3d 1237, 1272-1273, 1275.) As in another recent case (Heard, supra, 31 Cal.4th 946), we are troubled by this result because the error here at issue easily could have been avoided. In essence, the penalty judgment in this matter was doomed from the inception, merely because the trial court failed to take the extra few minutes that would have been required to clarify the ambiguity inherent in the questionnaire responses of the five excused prospective jurors. (Id., at p. 968.) Such an outcome should be avoided in future trials, not only through the conduct of the trial court, but also through the proper involvement of counsel, who have since 2001 enjoyed expanded rights to participate in oral voir dire. (See Code Civ. Proc., § 223, as amended by Stats. 2000, ch. 192, § l.) Although the penalty judgment must be reversed on this basis, past decisions make it clear, contrary to defendant’s assertions, that error under Witt, supra, 469 U.S. 412, 424, does not require reversal of the guilt judgment or special circumstance finding. (Heard, supra, 31 Cal.4th 946, 972-982 [reversing penalty phase judgment for erroneous exclusion of prospective juror for cause, but affirming guilt judgment and special circumstance findings]; see Lockhart, supra, 476 U.S. 162, 173-184 [rejecting assertion that exclusion of “guilt phase indudables” at the guilt phase of a bifurcated capital trial offends constitutional “fair-cross-section” or “impartial jury” guarantees]; People v. Ashmus, supra, 54 Cal.3d 932, 956-957 [same, under both federal and state law].) Defendant has not provided any persuasive basis upon which to reconsider that authority or view the trial court’s error as a “structural defect” that impugned the entire proceeding below. Accordingly, we proceed to consider defendant’s remaining claims relating to the guilt judgment and the special circumstance finding. B. Claims related to Code of Civil Procedure section 223 Code of Civil Procedure section 223, as amended by section 7 of Proposition 115 (approved by the electorate effective June 6, 1990), provided at the time of trial in this matter: “In a criminal case, the court shall conduct the examination of prospective jurors. However, the court may permit the parties, upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the prospective jurors upon such a showing, such additional questions by the parties as it deems proper. Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death cases.[] [][] Examinati