Full opinion text
Opinion GEORGE, C. J. Defendant Donald Griffin appeals from a judgment of the Fresno County Superior Court imposing a sentence of death (Pen. Code, § 190 et seq.). His appeal is automatic. (§ 1239, subd. (b).) At the guilt phase of his initial trial, a jury found defendant guilty of the murder of Janice Kelly Wilson (Kelly), his 12-year-old stepdaughter, finding that he committed the murder under the special circumstances of felony-murder rape, felony-murder sodomy, and felony-murder lewd conduct, and also that he personally used a deadly or dangerous weapon, a knife. The jury also found defendant guilty of rape, sodomy, and lewd or lascivious conduct against Kelly. At the penalty phase, the jury fixed the punishment for the murder at death. The trial court rendered judgment, sentencing defendant to death for the murder, and staying imposition of sentence as to the rape, sodomy, and lewd conduct offenses. In People v. Griffin (1988) 46 Cal.3d 1011 [251 Cal.Rptr. 643, 761 P.2d 103] (Griffin I), we affirmed the judgment as to defendant’s guilt of these offenses and the related special circumstance and personal-use findings, but reversed the sentence of death because the trial court committed error under People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430], by giving the so-called Briggs Instruction. That instruction informed the jury that the Governor could commute a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole, but did not inform the jury that the Governor similarly could commute a sentence of death as well. We remanded defendant’s case for a new trial on the issue of punishment. On remand, upon retrial of the penalty phase, a new jury again fixed defendant’s punishment at death. The trial court rendered judgment, again sentencing defendant to death for the murder and staying imposition of sentence as to the rape, sodomy, and lewd conduct offenses. For the reasons set forth below, we affirm the judgment. I. Facts In Griffin /, we summarized the evidence presented at the guilt phase of the initial trial as follows: “Defendant conceded that he had killed his stepdaughter, 12-year-old Kelly . . . , but denied any sexual assault. The prosecution evidence was that defendant stopped by his wife’s workplace in Kerman, California, about 7 p.m. on December 13, 1979, along with Kelly. He said they were going to his parents’ house nearby, and they left. A few minutes after 10 p.m. he returned, saying that he had allowed Kelly to leave his parents’ house for home in the company of a little girl wearing horn-rimmed glasses, but that Kelly had never returned home. He made several expeditions in search of Kelly during the evening and repeated this story of her disappearance. He reported to the police that Kelly was missing, that she had left in the company of a little Mexican girl wearing glasses. He said to several witnesses that if anyone had hurt Kelly, he would kill them. “When the police received a radio report that an injured person had been found on a nearby rural road, they asked defendant to follow them to the police station. An officer coming on duty saw defendant in a cell latrine, on his tiptoes, straddling a washbasin, with his hands in front of him. The officer could not see what defendant was doing, as his back was facing the officer. When defendant turned around, he asked for paper towels, and dried his hands. The officer saw that defendant had a buck knife in a holster at his waist. Defendant went out again to search for Kelly. He returned to the police station later that night, wearing clean pants and a different jacket. An officer observed some spots of blood on his boots, and defendant said that they were oil spots and tried to wipe them off. The officer asked where defendant’s knife was, and he said he had lost it during his search for Kelly. “[Kelly’s] body was discovered that night on the side of a rural road. The blouse and sweater were pulled up partially over her face, the back of her bra was tom, the left shoulder strap had been tom loose, and one of the cups had been cut with a knife. The left leg was bent at an awkward angle, and the underwear and pants were pulled down below the hips. The left leg of the underwear was cut through. The pants were tom and had also been cut near the zipper. There were stab wounds in the neck and abdominal incisions from the pubic bone to the breast bone, exposing the internal organs. There was a large pool of blood nearby, and a bloody partial footprint. An officer returning from the scene thought that the print matched defendant’s boots. An officer went out into the police parking lot and shone a light into the track defendant had been driving all evening; there was blood on the floorboard on the driver’s side and another bloody footprint which looked like the one at the scene and looked like it could have been made by defendant’s boots. Later analysis of the blood in the truck showed that it was [Kelly’s] unique blood. “After defendant’s arrest, he said, T think I need a psychiatrist.’ Then on his way from the crime lab to booking, he said to an officer, ‘Do you think I’ll get 10 years for this?’ When an officer took defendant out of his cell after the arrest, defendant said, ‘Go ahead man, it’s all right, why don’t you just go ahead and kill me. It’s all right, just go ahead and kill me.’ To the officer transporting him from Kerman to Fresno, defendant said, ‘Give me your shotgun so I can blow my head off. I’m a fool.’ “Dr. [Thomas] Nelson performed the autopsy and testified that the cause of death was strangulation and severing of the carotid artery. The abdominal incision occurred after death. It was his opinion that there had also been a rape and an act of sodomy. The hymen was partly tom and there was a little bleeding near the tear. There was also a small braise near the opening of the vagina and a braise of an inch and a quarter to an inch and a half near the tear in the hymen. This testimony was impeached with prior inconsistent statements; in his autopsy report Dr. Nelson had not mentioned any bleeding near the tear in the hymen, and had described the bruise near the tear as much smaller. He explained that the shape of the braise had become clearer after the tissue had been fixed in formaldehyde. “Dr. Nelson also testified that the anus was quite dilated, and he thought it had been stretched so far that it could not close. This testimony was impeached with his prior inconsistent statements; in his autopsy report he said the anus was somewhat ‘prominent.’ He explained at trial that this was a nicer word than dilated. At the preliminary hearing he said that the anus was somewhat dilated. He explained that he was not very precise in his speech. The doctor also testified that he took a fluid sample from the anus which showed no sperm, but which in his opinion showed the presence of prostatic acid phosphatase. “Acid phosphatase is an enzyme which occurs in the body in both sexes, but it occurs at higher levels in the male prostate gland and is contained in seminal emissions. Dr. Nelson removed 0.1 milliliters of fluid from the anus. His technician, [Joyce] Gordon, diluted this with 0.2 milliliters of saline solution, and divided the sample in half. The first test on one-half of the sample showed 14.5 sigma units of acid phosphatase. The test on the other half, involving a chemical reaction with tartrate buffer, showed that of the total, 8.1 sigma units of the acid phosphatase was prostatic acid phosphatase. “The defense experts testified that in the absence of sperm or physical injury to the anus, they would not use any level of acid phosphatase to express an opinion that there had been an act of sodomy. They also disputed the accuracy and reliability of the tartrate buffer test to identify acid phosphatase as prostatic acid phosphatase; one expert went so far as to say that the tartrate buffer test was worthless and that prostatic acid phosphatase could not be distinguished from any other acid phosphatase except electrophoretically. There was also a great deal of controversy among the experts on the conversion factor between sigma units and international units, and about dilution factors. One defense expert, using his conversion factor and dilution factor, found an amount of acid phosphatase which was below the minimum amount which the scientific literature said showed the presence of prostatic acid phosphatase. However, another of the defense experts agreed with the prosecution’s dilution factors and used an even higher conversion factor, coming to a total well above the minimum which the literature said indicated the presence of prostatic acid phosphatase. He maintained, however, that high levels of the substance should not be used to support an opinion that there had been an act of sodomy in the absence of sperm or physical injury to the anus. The defense experts also testified that sperm breaks down faster than acid phosphatase, so with the levels of acid phosphatase found here, they would certainly expect to find sperm if there had been any seminal emission. “The defense pathologist, Dr. [Paul] Herrmann, said that there was insufficient evidence to show either rape or sodomy, that the injuries which Dr. Nelson had described in his autopsy report were not indicative of rape, that dilation of the anus could be simply muscle relaxation after death and before rigor mortis, and that in a child of this age, he would expect much more injury if there had been a rape or act of sodomy. He thought that the injuries to the vagina could have been caused by a tampon (though the mother testified in rebuttal that the child had not started menstruating yet) or by a finger. He also thought that Dr. Nelson had erred in considering changes in tissue after fixation in formaldehyde, as the formaldehyde distorts the appearance of the tissue.” (Griffin I, supra, 46 Cal.3d at pp. 1017-1020.) In Griffin I, we summarized the evidence presented at the penalty phase of the initial trial as follows: “Defendant was 30 years old at the time of the offense and had no prior convictions. There was no evidence of any prior misconduct; in fact, the prosecution presented no evidence at the penalty phase of trial. “In mitigation, . . . defendant called his parents and other family members who described defendant’s family background. Defendant had little schooling and had been placed in classes for slow learners. He left school at age 15 or 16 and started working as a laborer and security guard. He was considered cooperative and hardworking. Defendant was a loving stepfather to [Kelly] for seven years. However, at the time of the offense defendant’s relationship with his wife had seriously deteriorated, in part due to financial difficulties. Defendant had been laid off a day or two before the offense. “The evidence presented at the penalty phase of trial showed that there was no indication of any violence in defendant’s nature, and no sign before the offense of the coming explosion. His friends and family were shocked, believing him incapable of such an act. There was also testimony that after the offense, defendant was extremely remorseful, asking that his own life be taken.” (Griffin I, supra, 46 Cal.3d at pp. 1031-1032.) At the penalty phase retrial, the People, in their case in aggravation, presented evidence similar to that introduced at the guilt phase of the initial trial. This evidence related circumstances of the crimes against Kelly, including expert testimony tending to establish the commission of rape and sodomy and specifically the crucial issue of penetration, as well as evidence of defendant’s consumption of alcohol and possibly drugs, although not to the point of intoxication. The People presented additional evidence, not introduced at the initial trial, relating to the crimes against Kelly, including evidence disclosing the following three matters. First, the owner of a slaughterhouse testified that some years prior to the crimes in question, defendant was employed at that establishment, and that sheep were slaughtered in a manner similar to the way Kelly’s body was mutilated. Second, a police officer testified that some months preceding the commission of the crimes, defendant struck up a conversation with the officer, and the two men discussed how crimes— including rape—were investigated. Third, two of Kelly’s friends and classmates testified that on the day the crimes were committed, Kelly acted unusual at school, and told one of them that defendant had been fondling her for some time and that she intended to confront him if he continued to do so. The People also presented evidence of other violent criminal activity committed by defendant, which also had not been introduced at the initial trial. This evidence revealed the following. First, a few years prior to the commission of the crimes against Kelly, John Hogan, who was the father-in-law of defendant’s sister and the property manager of a house that defendant had rented and was in the process of vacating, approached defendant in front of the house, cursing him and telling him he still owed rent and would have to pay for damage he had caused to the premises. When defendant paid no attention, Hogan touched his shoulder. In response, defendant sprang up, pulled out a knife with a folding blade, flicked the blade open, and took a step toward Hogan. Defendant’s sister stepped between the men, with her face to defendant and her back to Hogan. As Hogan continued to curse defendant, saying, “[W]ell, come on, come on,” defendant repeatedly told his sister, “[G]et him away or I’ll cut his throat” or “I’ll kill him.” After she told defendant to put his knife away and leave, he did so. Second, perhaps a year or two preceding the commission of the present crimes, defendant had engaged in lewd conduct on two separate occasions with four- or five-year-old Lisa B., his wife’s niece by marriage. Once, defendant touched Lisa with his fingers in the area of her vagina; on the other occasion, he penetrated her vagina with his fingers and then flicked open a knife with a folding blade. Each time, he threatened harm to others if Lisa revealed what he had done. In his case in mitigation, defendant presented evidence similar to what he had presented at the guilt phase of the initial trial relating to the rape, sodomy, and lewd conduct offenses that preceded his murder of Kelly, including expert evidence offered to raise a lingering doubt as to the element of penetration required for the commission of rape and sodomy. Defendant also presented evidence bearing on his background and character. Some of this testimony, given by lay witnesses, was much like the evidence he presented at the penalty phase of his initial trial, describing his minimal schooling and placement in classes for slow learners, his departure from school in his early to middle teens in order to perform manual and essentially unskilled labor, his reputation as cooperative and hardworking, his loving care for Kelly, his seriously deteriorating relationship with his wife, and his financial difficulties during the period leading up to the commission of the crimes against Kelly, the loss of his job a day or two before the crimes were committed, and the remorse he subsequently expressed. Additional testimony related to defendant’s background and character was given by expert witnesses, and was substantial and far different from his evidence at the penalty phase of his initial trial. This evidence was to the following effect: Defendant suffered physical abuse as a child and youth under his father’s harsh discipline. In addition, defendant repeatedly suffered severe and violent sexual abuse within an extended and pervasively aberrant family, which comprised the Sextons and the McDonalds as well as the Griffins, especially at the hands of his uncles Lonnie and Charles Sexton and even from his own father. This abuse had various adverse consequences, including the translation of his experiences as a victim into an inclination to victimize others. Defendant was borderline mentally retarded and suffered from severe neuropsychological defects, profound learning disabilities, and a speech impediment. Defendant committed the crimes against Kelly during a “psychotic experience.” According to defendant, after getting into his truck with Kelly, “he had an extremely weird experience in which he felt that he was being threatened by what looked like some sort of a monster that was trying to get at him”; “at that point he drew his knife and tried to defend himself against this weird monster that was taking over and then passed out”; and “sometime thereafter he came to and saw the body and got out of there.” Lastly, according to expert testimony presented, defendant had performed well in prison and could be expected to continue to do so. In rebuttal, the People presented evidence to show that defendant was not borderline mentally retarded and did not commit the crimes against Kelly during a psychotic experience. An expert witness testified that defendant was not psychotic when he committed the crimes and was not mentally retarded, and that the qualifying term “borderline” was psychiatrically “inappropriate.” This expert witness further testified that when observed by several individuals shortly before and shortly after the commission of the crimes, defendant was behaving normally, whereas a “person who’s suffering [from] a psychosis has a significant” and “usually quite obvious” “impairment” of appreciable duration. This witness added: “[T]hat theory that there was a monster is just ridiculous. There’s no psychiatric disorder . . . that comes on in a half hour and goes in a half hour. There’s also the inconsistency if he thought he were protecting himself from a monster with his knife, why would he have had sex with the monster, raped the monster, sodomized the monster before killing the monster.” The expert witness concluded that defendant acted in a rational manner, intending to commit the crimes without being detected and to avoid suspicion thereafter. Finally, in surrebuttal, defendant presented evidence concerning the poor grades he received in school, the resulting angry reaction from his father including spankings and insults, and defendant’s inability to complete job applications. As noted above, at the conclusion of the penalty phase retrial the jury again fixed the punishment at death. II. Claims Defendant raises several claims in an attempt to establish error requiring reversal of the judgment. As will appear, we conclude that the judgment must be affirmed. A. Denial of Wheeler Motion After 12 jurors and two of four alternate jurors were selected and sworn for the penalty phase retrial, and in the midst of the selection of the two remaining alternate jurors, defendant moved, in his counsel’s words, “for a mistrial . . . , under what is known as a Wheeler Motion,” which the trial court understood as a motion based on People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] to dismiss all of the jurors and alternate jurors and to quash the remaining venire. In Wheeler, we held that a prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of membership in a cognizable group, including African-Americans, violates the right of a defendant under article I, section 16 of the California Constitution to trial by a jury drawn from a representative cross-section of the community. (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277, & 280, fn. 26.) Defendant, who is European-American, asserted that the prosecutor struck, in his counsel’s words, “every prospective black juror that has been called. And I have counted five”—the last being Prospective Alternate Juror G. R. The trial court denied the motion, determining that it was “not timely” and additionally that there was no “prima faci[e] showing as to .. . the people that were excused.” At this' point, the following colloquy ensued between the trial court and defendant’s counsel. Counsel stated, “Your Honor, could I put on the record the last alternate who was excused was black. Mr. [G. R.].” The court responded, “I don’t know. Was he? [][] He appeared to be of minority [szc]. I can’t say that he was black. I don’t know. Was he? In your opinion?” Counsel replied, “Well, perhaps I should have inquired, but, yes, he certainly appeared to be black to me.” Selection of the alternate jurors then proceeded. After the two remaining alternate jurors were selected and sworn, the prosecutor volunteered a comment apparently disputing the number of African-Americans whom he had peremptorily challenged, and articulating a reason explaining his peremptory challenge of Prospective Alternate Juror G. R.: “And with respect to—assuming that [defense counsel] was correct in his opinion that Mr. [G. R.] was black, there were comments made by Mr. [G. R.] in his juror questionnaire about the responsibility of persons who are using drugs or otherwise intoxicated which are closely related to the issues or some of the issues, which I believe will be raised in this case. And [I] would have excused anyone with those attitudes.” The trial court did not respond to the prosecutor’s comment, but instead “point[ed] out for the record”—without contradiction or objection by defense counsel—“that Mr. [G. R.] was asleep during most of the voir dire. He was in the back row and I asked the bailiff to wake him up.” Defendant now contends that the trial court erred by denying his Wheeler motion. Under Wheeler, there is a presumption that a prosecutor who employs a peremptory challenge against a prospective juror who is a member of a cognizable group does so for a purpose other than to discriminate. (People v. Wheeler, supra, 22 Cal.3d at p. 278.) If a defendant believes that the prosecutor is using a peremptory challenge for a discriminatory purpose, the defendant “must raise the point in timely fashion.” (Id. at p. 280.) At the threshold, the defendant must establish a “prima facie case of [purposeful] discrimination.” (Ibid.) “First, . . . [the defendant] should make as complete a record of the circumstances as is feasible.” (Ibid.) “Second, [the defendant] must establish that the persons excluded are members of a cognizable group . . . .” (Ibid.) “Third, from all the circumstances of the case [the defendant] must show a strong likelihood” (ibid.)—or, stated in other terms, must raise a “reasonable inference” (id. at p. 281; accord, People v. Johnson (2003) 30 Cal.4th 1302, 1306, 1312-1318 [1 Cal.Rptr.3d 1, 71 P.3d 270], cert, granted sub nom. Johnson v. California (2003) 540 U.S. 1045 [157 L.Ed.2d 692, 124 S.Ct. 817], cert, dismissed (2004) 541 U.S. 428 [158 L.Ed.2d 696, 124 S.Ct. 1833])—“that such persons are being challenged because of their group association rather than because of any specific bias” (People v. Wheeler, supra, 22 Cal.3d at p. 280). In order to demonstrate such a “strong likelihood,” or raise such a “reasonable inference,” the defendant “must show that it is more likely than not the [prosecutor’s] peremptory challenges, if unexplained, were based on impermissible group bias” or purposeful discrimination. (People v. Johnson, supra, 30 Cal.4th at p. 1306; id. at p. 1318.) If the defendant succeeds in establishing a prima facie case of such discrimination, the prosecutor must articulate neutral reasons explaining the peremptory challenges in question. (People v. Wheeler, supra, 22 Cal. 3d at pp. 281-282.) Ultimately, the defendant must prove purposeful discrimination. (See id. at pp. 278-282 [placing the “burden of proof’ on the defendant].) If the defendant succeeds in proving such discrimination, the trial court must dismiss any jurors thus far selected and sworn, and quash any remaining venire. (Id. at p. 282.) We conclude that the trial court did not err by denying defendant’s Wheeler motion. We need not consider whether it erred in determining that the motion was untimely because, in any event, the trial court did not err in determining that defendant failed to establish a prima facie case of purposeful discrimination. When a trial court denies a Wheeler motion with a finding that the defendant failed to establish a prima face case of purposeful discrimination, we review the record on appeal to determine whether there is substantial evidence to support the ruling. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 135 [121 Cal.Rptr.2d 106, 47 P.3d 988]; People v. Jenkins (2000) 22 Cal.4th 900, 993-994 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v. Crittenden (1994) 9 Cal.4th 83, 116-117 [36 Cal.Rptr.2d 474, 885 P.2d 887].) The record includes voir dire (see, e.g., People v. Farnam, supra, 28 Cal.4th at p. 135; People v. Jenkins, supra, 22 Cal.4th at p. 993; People v. Crittenden, supra, 9 Cal.4th at p. 116) as well as any juror questionnaires (see People v. Boyette (2002) 29 Cal.4th 381, 419-123 [127 Cal.Rptr.2d 544, 58 P.3d 391]). We sustain the ruling when the record discloses grounds upon which the prosecutor properly might have exercised the peremptory challenges against the prospective jurors in question. (E.g., People v. Farnam, supra, 28 Cal.4th at p. 135; People v. Crittenden, supra, 9 Cal.4th at p. 117.) During voir dire, Prospective Alternate Juror G. R. stated that he never had served as a juror, had lived in Fresno approximately 14 years, worked as a track man for the San Joaquin Valley Railroad making repairs, was unmarried, and spent his leisure time playing basketball, and also implied that he could choose either death or life imprisonment with possibility of parole as the penalty for defendant, depending on the evidence to be presented at trial. In his juror questionnaire, this prospective juror disclosed further information, including the following: G. R. was 19 years of age, was a recent high school graduate, and was the father of a 10-month-old daughter. Expressing a desire to become a highway patrol officer, G. R. stated that relatives and friends had been arrested for, charged with, or incarcerated for, the sale of drugs, and also stated that he had witnessed various crimes, including theft, the sale of drugs, and a shooting. As for his general attitudes regarding the use of drugs and alcohol, G. R. expressed beliefs that included the following: “[T]hey should stop selling alcohol because all it does it cause [szc] problems”; alcohol use affects individuals by “mak[ing] them do crazy things” and by causing them to “forget what happen [sic] the day before”; similarly, drug use affects individuals by “mak[ing] them do crazy things and hurt people” and by “causing]” them “to do other crimes just to get some more”; drug users are more likely than others to be guilty of crimes with which they are charged, “[bjecause they dont [sic] remember if they did it or not”; and “I don’t like [drug use] because I have family members on it,” adding that a drug user is a “person looking for an excuse.” G. R. also made various other comments, expressing a belief that violent crime had increased recently because “[t]here are more crazy people because of drug users and gangs,” and that the penalty of death is imposed “[Randomly,” whereas the penalty of life imprisonment without possibility of parole is “no good if they will never get out why live.” Having reviewed the record on appeal, we find substantial evidence to support the trial court’s finding that defendant failed to establish a prima face case of purposeful discrimination. The record discloses grounds upon which the prosecutor properly might have made his peremptory challenge against G. R. First, he apparently had substantial acquaintance with persons engaged in criminal activity. Second, he held a negative view of the nature of the penalty of life imprisonment without possibility of parole as “no good,” and a similarly negative view of the administration of the penalty of death as random. Third, his comments on various points suggested that he may have been lacking in attention, in conformity with the trial court’s observation— uncontradicted and unobjected to by defense counsel—that G. R. was “asleep during most of the voir dire.” The foregoing constitutes substantial evidence supporting the trial court’s finding that defendant failed to make a prima face case of purposeful discrimination. Defendant also contends that the trial court erred by denying his Wheeler motion insofar as the motion also implicated Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712]. In Batson, which followed Wheeler by some eight years, the United States Supreme Court held that a prosecutor’s use of a peremptory challenge to strike a prospective juror on the basis of membership in a cognizable group, including African-Americans, violates a defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. (Batson v. Kentucky, supra, 476 U.S. at pp. 84-89.) Batson requires of defendant substantially the same prima face case of purposeful discrimination as is required by Wheeler. (See People v. Yeoman (2003) 31 Cal.4th 93, 115-118 [2 Cal.Rptr.3d 186, 72 P.3d 1166]; see also People v. Johnson, supra, 30 Cal.4th 1302, 1313-1314.) Because defendant failed to satisfy Wheeler, he likewise failed to satisfy Batson. (See People v. Yeoman, supra, 31 Cal.4th at pp. 115-118.) B. Excusal of Prospective Jurors for Cause Related to Capital Punishment Defendant contends the trial court erred under the impartial-jury guaranties of the Sixth Amendment to the United States Constitution and article I, section 16 of the California Constitution by excusing four prospective jurors at the penalty phase retrial because of their views on capital punishment. As we shall explain, we conclude that this claim lacks merit. In Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the United States Supreme Court held that a prospective juror cannot be excused for cause based on his or her views on capital punishment without violating a defendant’s right to an impartial jury under the Sixth Amendment, unless, as is pertinent here, the prospective juror made it “unmistakably clear” that he or she would “automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case . . . .” (Id. at p. 522, fn. 21.) In Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], however, the court revisited Witherspoon and declared that the proper standard was “whether the [prospective] juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424.) In People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250], we adopted the Witt standard as the test for determining whether a defendant’s right to an impartial jury under article I, section 16 of the state Constitution was violated by an excusal for cause based on a prospective juror’s views on capital punishment. On the People’s challenge, the trial court excused Prospective Jurors E. B., M. C., J. D., and C. F. for cause based on their views concerning capital punishment. The trial court found that each held views that would substantially impair the performance of her duties as a juror in accordance with the instructions and her oath. Substantial evidence is the standard of review applicable to a finding on the potential effect of a prospective juror’s views related to capital punishment. (E.g., People v. Memro (1995) 11 Cal.4th 786, 817-818 [47 Cal.Rptr.2d 219, 905 P.2d 1305]; People v. Gordon (1990) 50 Cal.3d 1223, 1262 [270 Cal.Rptr. 451, 792 P.2d 251].) The standard is the same for the threshold finding regarding the nature of such views; “Such a finding, we have stated, is generally ‘binding’ ‘if the prospective juror’s responses are equivocal ... or conflicting ....’” (People v. Ashmus (1991) 54 Cal.3d 932, 962 [2 Cal.Rptr.2d 112, 820 P.2d 214]; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1147 [36 Cal.Rptr.2d 235, 885 P.2d 1]; People v. Kaurish (1990) 52 Cal.3d 648, 675 [276 Cal.Rptr. 788, 802 P.2d 278]; see also People v. Clark (1993) 5 Cal.4th 950, 1025 [22 Cal.Rptr.2d 689, 857 P.2d 1099].) As we explained in People v. Cain (1995) 10 Cal.4th 1, 60 [40 Cal.Rptr.2d 481, 892 P.2d 1224]: “[W]e pay due deference to the trial court, which was in a position to actually observe and listen to the prospective jurors. Voir dire sometimes fails to elicit an unmistakably clear answer from the juror, and there will be times when ‘the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [T]his is why deference must be paid to the trial judge who sees and hears the juror.’ ” (Quoting Wainwright v. Witt, supra, 469 U.S. 412, 426.) In this case, substantial evidence supports the trial court’s findings that each of the prospective jurors in question held views concerning capital punishment that substantially impaired her ability to perform her duties. Prospective Juror E. B. stated, alternately, that she could, and could not, vote to impose the death penalty. Although she stated that earlier in her life she strongly had supported the death penalty, she admitted that she presently entertained mixed feelings and was at a crossroads in her thinking, further revealing that she believed that it was wrong to impose the death penalty and that life imprisonment without possibility of parole was sufficient punishment. She added that she had been much affected by the recent deaths of her father and her mother, which occurred on the same day; that she had been unsettled by the execution of Robert Alton Harris, placing herself in his place in the gas chamber in her thoughts; and, lastly, that she had been unable even to have a gravely ill dog put down just three weeks earlier. The trial court reasonably could find substantial impairment in her reactions to each of these very different events. Prospective Juror M. C. indicated that she would not want to take responsibility for voting for the death penalty and, upon further questioning, stated and reiterated that she did not know whether she ever could vote to impose the death penalty, regardless of the state of the evidence in a case. In similar fashion, Prospective Juror J. D., although stating that she supported the death penalty generally, also stated she did not know whether she actually could vote to impose the death penalty—even in a case in which she had concluded that the defendant deserved the death penalty. With respect to each of these prospective jurors, the trial court, having had the opportunity to observe the demeanor of each and to assess the degree of reluctance and apprehension expressed by each prospective juror in responding to questioning, reasonably could find that each prospective juror’s views on the death penalty would substantially impair her ability to perform the duties of a juror in accordance with the trial court’s instructions. Lastly, Prospective Juror C. F. was the warden of a state prison at which women condemned to death are incarcerated pending execution. C. F. stated that in light of her professional responsibilities as warden and the potential adverse effect on conditions in her institution that might result if it became known she had voted to impose the death penalty, she would have difficulty imposing that punishment and did not know whether her employment would affect her choice of penalty. The trial court, having heard C. F.’s responses and observed her demeanor, reasonably could find that her position and responsibilities as warden would substantially impair her ability to perform the duties of a juror. Defendant, maintaining substantial evidence does not exist to support the trial court’s excusal of any of the prospective jurors in question, focuses on equivocal and conflicting responses by each of the four women in her juror questionnaire and on voir dire. As already explained, however, the trial court had the opportunity to observe the demeanor and to assess the degree of uncertainty and reluctance of each prospective juror and resolved any equivocal and conflicting responses in a manner that caused the court to conclude that each of these jurors’ views or employment would substantially impair the juror’s ability to make a penalty determination in accordance with the court’s instructions. On this record, we have no reason or basis for second-guessing that finding. Contrary to defendant’s suggestion, the fact that at some point each of these prospective jurors may have stated or implied that she would perform her duties as a juror did not prevent the trial court from finding, on the entire record, that each nevertheless held views or had employment responsibilities that substantially impaired her ability to serve. Defendant also argues that the trial court failed to apply the appropriate standard in excusing the prospective jurors in question. The record does not support this assertion. With regard to one of the prospective jurors, the trial court expressly invoked the requisite standard. As for the others, the court did so by implication. Defendant’s point seems to be that the trial court must have failed to apply the appropriate standard because substantial evidence does not exist to support its excusal of any of these prospective jurors. But as we have explained, substantial evidence supports the trial court’s action in excusing each of the jurors in question. C. Failure to Reopen Jury Selection Moments after the 12 regular jurors were selected and sworn at the penalty phase retrial, and prior to the selection of any of the four alternate jurors, one of the 12 jurors, E. L., who the record reflects was “hysterical” and “in tears,” asked to be discharged because her son had been arrested, adding, “I have too many things on my mind. I can’t even think.” The trial court, outside the presence of the other jurors and prospective alternate jurors, questioned E. L. concerning her situation. E. L., who remained distraught, responded that her son had been arrested for seven armed robberies four days earlier, apparently after the conclusion of the last court session. When the trial court asked why she had failed to bring the fact to its attention earlier that day, E. L. replied, “I didn’t even know I could say anything about it. I just can’t do this.” The trial court addressed the prosecutor and defense counsel: “I suspect that what we should do is to—if you stipulate that she can be excused, we’ll seat the alternates and then select an alternate to replace her at this point in time. The jury has been sworn in.” After asking Juror E. L. to leave the courtroom, the trial court engaged in colloquy with the prosecutor and defense counsel. The prosecutor stated that “[t]he jury’s been sworn and in a hypertechnical sense, jeopardy is attached and/or at least there’s an argument to be made for that.” The trial court asked the prosecutor, “Well, would you stipulate she could be excused and we could then seat her [replacement] and there would be no challenges to the other eleven but only as to this one seat?” The prosecutor responded with his view that “defendant personally [should] be part” of any such stipulation. Defense counsel interjected that defendant could not do so. The trial court replied, “Well, all [the prosecutor] is suggesting is that . . . whatever procedure we use . . . your client personally agree as to what procedure we’re going to go through.” “If there’s a stipulation that [E. L.] . . . be excused, we re-seat a new juror to take this juror’s place before we start selecting the alternates. That your client stipulate to it... . That’s all [the prosecutor] is suggesting.” Defense counsel asked for an opportunity to research the question, and the trial court ordered a recess for that purpose. Following the recess, defendant moved for a mistrial. Defense counsel stated: “Jeopardy has attached, the jury was sworn. The defense is also at a significant disadvantage. We have used sixteen peremptory challenges. We have had twenty-six to use. If . . . juror [Ms. E. L.] . . . had said that five seconds before, we would still have those ten peremptories to use plus the ones on the alternates, and we feel that this is a significant disadvantage to the defense . . . .” The trial court inquired: “Well, aside from the mistrial, would you stipulate to excusing this juror at this time and reopening and proceeding to select a person to sit in [her place] . . . ?” Defense counsel responded: “Your Honor, not giving up any issues on the mistrial issue, which I think is preserved at this point, is file court saying would we agree to—would we feel we are not in so much of a disadvantage—” The trial court interrupted: “No, I’m asking if you want to stipulate to this procedure, the procedure you suggested. Now if you stipulate to it then you are giving up your advantage and your objection.” Defense counsel replied: “No.” Invited by the trial court to comment on the procedure to be followed, the prosecutor expressed his position that the trial court should select and swear the intended four alternate jurors, and then should turn to considering whether to discharge Juror E. L. and, if she were discharged, replacing her with one of the alternate jurors. In response, defense counsel stated: “Your Honor, for the record, the defense would like to indicate that I believe this decision has already been made by the court. That they are going to excuse that juror . . . .” The trial court cited its authority in section 233 (mistakenly transcribed or referenced as section 234) of the Code of Civil Procedure to put an alternate juror in the place of a juror who has been discharged. Defense counsel responded: “The difference I see we have before us, your Honor, is we don’t have any alternates.” The trial court replied: “I understand that and we’re in the process of obtaining the alternates. And the court is therefore going to proceed to select the alternates and then we’ll seat the alternates, seat one of the alternates to replace juror [E. L.] . . . . We’ll select four alternates. Each . . . side will have one peremptory per alternate, that means four peremptories.” The prosecutor requested clarification: “If I understood your comments correctly a few moments ago when you were speaking with the defense here on the record, that you were making available or offering to them the procedure whereby we reopen jury selection so that they could proceed with whatever the peremptories were that were remaining if they opted to avail themselves to that procedure that was available to them?” The trial court responded: “Well, it was except they declined it and still insisted on the mistrial.” The prosecutor stated: “Right. I understand. That’s what I thought had occurred there.” Defense counsel made no statement. The trial court continued: “And then the procedure after we seat the alternates, first alternate will replace juror [E. L.] . . . if we get to that point and juror [E. L.] . . . is excused. Then if . . . another juror wishes to be excused during the course of the trial, alternate number 2 will replace and then alternate number 3, and then alternate number 4. Any objection to that procedure?” Defense counsel and the prosecutor each answered, “No.” Thereupon, in open court the four alternate jurors were selected and sworn. Immediately thereafter, the trial court conducted a hearing in chambers as to whether to discharge Juror E. L. The trial court questioned E. L. as previously, concerning her son’s recent arrest, and E. L. continued to indicate she was too distraught to serve as a juror. The trial court then asked the prosecutor and defense counsel whether they would stipulate to E. L.’s discharge. Defense counsel answered: “Your Honor, the Defense can’t do that at this time.” The trial court responded: “All right, . . . then we’ll keep [Ms. E. L.] on as a juror. Is that what you want?” Defense counsel replied: “No. I think it’s the Court’s decision.” Upon further questioning by the trial court and the prosecutor, E. L. responded, “I can’t do this right now. I am very emotional” and “I don’t know if I could [do it]” even weeks later. The trial court discharged E. L. as unable to perform her duty, noting later its “opinion that she could not pay attention to the evidence based on her emotional state,” and replaced her with an alternate juror. The trial court then admonished the jury and the remaining three alternate jurors, and excused them for the day. Defendant again moved for a mistrial. Defense counsel stated: “We had asked for a mistrial earlier, but that was before [Ms. E. L.] had been excused. [][] We would ask for a mistrial now, because we did not stipulate or agree to have [Ms. E. L.] be excused and the jury was sworn and then the alternates were picked right after the jury was sworn. [f] This is on the record already. [][] [Ms. E. L.] indicated a problem with serving as a juror and we are still of the same mind, we feel that a mistrial should be granted and should be granted at this time in this case.” The trial court denied the motion. Subsequently, after the jury returned its penalty determination and just prior to the hearing on defendant’s automatic application to modify the verdict of death, defendant moved for a new trial, in pertinent part effectively renewing his mistrial motions. The trial court denied the new trial motion, stating as to the mistrial motions that the court “stands by its ruling[s].” On appeal, defendant does not contend the trial court erred by discharging Juror E. L. Instead, defendant claims that the trial court erred by failing to reopen jury selection completely, in order to allow him to exercise his remaining peremptory challenges against jurors already sworn. The legal principles applicable to the claim before us are set out in our decisions in In re Mendes (1979) 23 Cal.3d 847 [153 Cal.Rptr. 831, 592 P.2d 318], People v. Armendariz (1984) 37 Cal.3d 573 [209 Cal.Rptr. 664, 693 P.2d 243], and People v. Caro (1988) 46 Cal.3d 1035 [251 Cal.Rptr. 757, 761 P.2d 680]. In Mendes, we held that jeopardy does not attach for purposes of the double jeopardy clause of either the Fifth Amendment to the United States Constitution or article I, section 15 of the California Constitution until empanelment of the jury is complete, which entails selecting and swearing in not only the 12 regular jurors but also any alternate jurors. (In re Mendes, supra, 23 Cal.3d at pp. 852-854.) We further held that discharge of a regular juror before empanelment of the jury has been completed—with the selection and swearing-in of the alternate jurors—does not amount to discharge of the jury for double jeopardy purposes. (Id. at pp. 852-856.) In Mendes, we also concluded that when the trial court discharges a regular juror prior to the selection and swearing in of any alternate jurors, the court possesses authority to reopen jury selection completely to allow each of the parties to exercise any peremptory challenges remaining against any of the remaining regular jurors already sworn. (In re Mendes, supra, 23 Cal.3d at p. 855.) In reaching this conclusion, we observed that inasmuch as the “composition of the 12-member panel [would] . . . change,” there could be a “valid reason” for the trial court to allow the parties to exercise their remaining peremptory challenges against remaining regular jurors already sworn in order to “satisfy themselves to the best of their ability with the final composition of the jury.” (Ibid) Next, in Armendariz, we considered a claim by the defendant that, following the trial court’s discharge of two regular jurors prior to the selection and swearing in of the alternate jurors, the trial court erred by denying the defendant’s motion to completely reopen jury selection to allow him to exercise his remaining peremptory challenges against the remaining regular jurors already sworn. Applying the abuse-of-discretion standard (People v. Armendariz, supra, 37 Cal.3d at p. 581), we found that the trial court in that case was unaware of its authority to reopen jury selection, and that had it been aware of that authority, it could not reasonably have denied the defendant’s motion (id. at pp. 581-583). On that ground, we reversed the judgment rendered against the defendant and remanded the matter for a new trial. Thereafter, in Caro, we considered a claim by the defendant that the trial court erred by failing to reopen jury selection completely to allow him to exercise his remaining peremptory challenges against the remaining regular jurors already sworn, following discharge of a regular juror prior to the selection and swearing of the alternate jurors. In light of the procedural posture of that case, however, we rejected the defendant’s argument, concluding that a trial court does not have a duty to reopen jury selection sua sponte, that is, on its own initiative in the absence of a request by the defendant (People v. Caro, supra, 46 Cal.3d at p. 1046). We therefore held that a defendant “may not be heard to complain” of any such omission on appeal unless he or she requested such action by the trial court (id. at p. 1047). Because the defendant in Caro had not asked the trial court to reopen jury selection, we concluded he could not complain on appeal of the trial court’s failure to do so. Applying the principles set forth above in Mendes, Armendariz, and Caro, we reject defendant’s claim that the trial court in this case erred by failing to reopen jury selection completely in order to allow him to exercise his remaining peremptory challenges against the remaining regular jurors already sworn, following the discharge of Juror E. L. and prior to the selection and swearing in of the alternate jurors. As in Caro, defendant did not seek any such action from the trial court. What defendant in fact did seek, twice, was a mistrial—under what defendant now concedes was the erroneous belief that jeopardy had attached. In support of a mistrial, defense counsel cited the assertedly “significant disadvantage to the defense” flowing from the circumstance that had the 12 regular jurors not been selected and sworn, the defense would have had 10 remaining peremptory challenges for use against any prospective jurors called to voir dire for Juror E. L.’s seat as a regular juror, in addition to the four peremptory challenges available for use against any prospective jurors summoned to voir dire as potential alternate jurors. When the trial court inquired of defense counsel whether they were willing to stipulate to the procedure that the trial court believed they had suggested— that is, to reopen jury selection—defense counsel responded in the negative. Any uncertainty in this regard was dispelled later when, in response to the prosecutor’s request for clarification, the trial court stated—without contradiction by defense counsel—that defense counsel had “declined” what the prosecutor described as the “procedure whereby we reopen jury selection so that they could proceed with whatever the peremptories were that were remaining.” Thus, not only did defendant not seek to reopen jury selection, he in fact actively opposed such action, and his two motions for mistrial were not the equivalent of a request that the trial court do otherwise. In support of his claim, defendant argues that the trial court was unaware of its authority to reopen jury selection completely in order to allow each of the parties to exercise remaining peremptory challenges against remaining regular jurors already sworn. The argument, however, does not establish that the trial court erred in failing to take such a course. Although the trial court provided an opportunity for counsel to research this issue, defense counsel did not even cite Mendes, Armendariz, or Caro. More importantly, under Caro, which had been decided some years earlier, the trial court did not have a sua sponte duty to reopen jury selection. Defendant did not request such action, and the trial court was not under any obligation to act on its own initiative. Defendant alternatively argues that the trial court improperly required him to withdraw his first motion for mistrial as a condition of the court’s exercising its authority to reopen jury selection completely so as to allow each of the parties to exercise its remaining peremptory challenges against the remaining regular jurors already sworn. Defendant relies upon the trial court’s inquiry: “Well, aside from the mistrial, would you stipulate to excusing . . . juror [E. L.] at this time and reopening and proceeding to select a person to sit in [her place] . . . ?” (Italics added.) Contrary to defendant’s assertion, we do not discern in the italicized phrase the imposition of any condition on defendant, improper or otherwise, but only an attempt to clarify whether defendant would accept the procedure proposed as an acceptable resolution short of mistrial. Defendant finally argues that the trial court should not have continued the hearing on whether to discharge Juror E. L. until after the four alternate jurors were selected and sworn, having done so assertedly to avoid any discharge of the jury that might have been required by Code of Civil Procedure section 233. But the trial court’s action in continuing the hearing has no bearing on the resolution of the matter before us, inasmuch as under Caro the trial court did not have a sua sponte duty to reopen jury selection. D. Denial of Motion for Order Recusing the District Attorney’s Office for Conflict of Interest Prior to the penalty phase retrial, defendant moved under section 1424 for an order recusing the district attorney’s office based on an asserted conflict of interest arising out of that office’s employment of Noemi Yolanda Summi. The People opposed the motion. The trial court conducted an evidentiary hearing on defendant’s motion. Summi testified at the hearing as follows: She currently was employed in the district attorney’s office as an investigator with the civil section of the juvenile division in what she described as an extra-help, temporary position, having begun work there about seven months earlier. Her office was situated in a building located miles from the building in which the prosecutor’s office was situated. Previously, she was self-employed as a private investigator; about three years earlier, she had been hired to work as an investigator for defense counsel representing defendant’s brother Elzie Griffin when Elzie was charged with murder (with one or more special circumstance allegations) unrelated to the charges against defendant. She worked in that capacity for a year or so, during which time she also collaborated with an investigator who worked for defense counsel representing defendant. Along with six or seven other persons, she once attended a team meeting relating to defendant’s case, but never engaged in any discussions about defendant’s case with any person other than counsel representing defendant and the agents of those counsel. Since the beginning of her employment in the district attorney’s office, she never had been approached by anyone in that office with any questions about defendant’s case and she never had occasion to do any work whatsoever for that office with respect to defendant’s case. Indeed, she believed that no one in the district attorney’s office knew about her indirect involvement in defendant’s case or her direct involvement in defendant’s brother Elzie’s case. Following Summi’s testimony, defense counsel presented argument, conceding that “it is apparent that there is no actual conflict in that . . . Miss Summi has not talked to . . . [the prosecutor] or anyone on his team or to anyone about the case,” but adding that “[j]ust because Miss Summi has not spoken to anyone so there is no actual conflict, it doesn’t mean there isn’t an apparent conflict or appearance of impropriety.” The trial court denied defendant’s motion to recuse the district attorney’s office, stating: “I agree there is no actual conflict and any apparent conflict is simply that. It’s clear from Miss Summi’s testimony she has not spoken to anyone in the District Attorney’s office concerning her former services on . . . [defendant’s] case. In fact, her thinking is no one in the District Attorney’s office is even aware of the fact that she worked on that case.” The trial court then admonished Summi, “specifically ordering [her] to not discuss this case at all with anyone from the District Attorney’s office or anyone at all that is involved in this case, directly or indirectly involved in the prosecution of [defendant].” In People v. Superior Court (Greer) (1977) 19 Cal.3d 255 [137 Cal.Rptr. 476, 561 P.2d 1164], we held that a trial court has general statutory authority to order recusal of a member of a district attorney’s office, and inferentially the office itself, for a conflict of interest. (Id. at pp. 261-265 ; see generally People v. Eubanks (1996) 14 Cal.4th 580, 590-594 [59 Cal.Rptr.2d 200, 927 P.2d 310].) In Greer, we further held that the applicable standard for the trial court’s exercise of such authority is whether there exists a conflict of interest that “might prejudice [the conflicted person or entity] against the accused and thereby affect, or appear to affect, [its] ability to impartially perform [its] discretionary functions.” (Greer, supra, 19 Cal.3d at p. 269; see generally People v. Eubanks, supra, 14 Cal.4th at pp. 590-591.) After our decision in Greer, the Legislature added section 1424 to the Penal Code. That statute sets forth the procedure for a defendant to seek an order from the trial court recusing a member of the district attorney’s office, or the office as a whole, for a conflict of interest. (See People v. Millwee (1998) 18 Cal.4th 96, 123, fn. 7 [74 Cal.Rptr.2d 418, 954 P.2d 990]; People v. Eubanks, supra, 14 Cal.4th at p. 591.) The statute also makes a substantive change (see People v. Millwee, supra, 18 Cal.4th at p. 123, fn. 7; People v. Eubanks, supra, 14 Cal.4th at p. 591), replacing the standard set forth in Greer with a standard that, in its present form, provides that a trial court may not order recusal “unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial” (§ 1424, subd. (a)(1)). (See, e.g., People v. Eubanks, supra, 14 Cal.4th at p. 591; People v. Conner (1983) 34 Cal.3d 141, 147 [193 Cal.Rptr. 148, 666 P.2d 5].) A conflict of interest exists “whenever the circumstances of a case evidence a reasonable possibility that the [conflicted person or entity] may not exercise its discretionary fiinction in an evenhanded manner.” (People v. Conner, supra, 34 Cal.3d at p. 148; accord, People v. Snow (2003) 30 Cal.4th 43, 86 [132 Cal.Rptr.2d 271, 65 P.3d 749]; Hambarian v. Superior Court (2002) 27 Cal.4th 826, 833 [118 Cal.Rptr.2d 725, 44 P.3d 102]; People v. Millwee, supra, 18 Cal.4th at p. 123; People v. Eubanks, supra, 14 Cal.4th at p. 592.) Whether characterized as “actual” or merely “apparent,” a conflict requires recusal only if it is “so grave as to render it unlikely that [the] defendant will receive fair treatment during all portions of the criminal proceedings.” (People v. Conner, supra, 34 Cal.3d at p. 148; accord, People v. Snow, supra, 30 Cal.4th at p. 86; Hambarian v. Superior Court, supra, 27 Cal.4th at p. 833; People v. Millwee, supra, 18 Cal.4th at p. 123; People v. Eubanks, supra, 14 Cal.4th at p. 592.) On appeal, a trial court’s ruling on a motion for an order recusing a member of the district attorney’s office,