People v. Howard (42 Cal. 4th 1000, 2008)

Opinion

CORRIGAN, J.

Defendant Alphonso Howard was sentenced to death after a jury convicted him of first degree murder, rape, and a forcible lewd act upon a child under the age of 14. The jury found that he personally used a firearm during the offenses, and that he caused bodily injury to the child while committing the lewd act. The special circumstances supporting the imposition of the death penalty were that the rape and forcible lewd act upon a child occurred while defendant committed the murder. We affirm the judgment.

L FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

a. Wendy’s disappearance

Eleven-year-old Wendy Bustamante lived with her parents, Carlos and Sofia Bustamante, in Compton. On April 2, 1988, at 4:30 p.m., Wendy went outside to play. Five minutes later, Mrs. Bustamante realized she was missing and began searching for her.

One of Wendy’s playmates was K., defendant’s younger sister. K. and their mother, Mary Williams, lived several doors down from the Bustamante family. Mrs. Williams called the police for Mrs. Bustamante, who did not speak English.

Defendant had a room in the back of a converted garage located on Mrs. Williams’s property, but detached from her house.

b. The investigation and defendant’s statements

Defendant made five statements to the police. He began by denying any involvement in the disappearance.

On April 3, the day after Wendy was reported missing, Officer Louis Mendez interviewed defendant as part of the ongoing investigation of the disappearance. Defendant said that Wendy had come to the Williams residence seeking $5 in payment for earrings she had sold defendant’s mother. Mrs. Williams was not home, so defendant gave Wendy $3 and told her to come back later to see Mrs. Williams for the balance. Wendy left. Defendant did not say whether he had seen her again.

On the morning of April 4, Detective Gilbert Cross interviewed defendant and his family. Defendant repeated that he had paid Wendy $3 for the earrings and added that he had not seen her again.

That same morning, after defendant’s statement to Detective Cross, Wendy’s father found her body in a vacant garage. When Mr. Bustamante climbed through a loosely boarded window, he tripped over Wendy’s body in the darkness. Thinking she might still be alive, he removed a ball of black material from her mouth and ran to summon the police. The vacant garage was separated from defendant’s room by a low brick wall. Marks consistent with the dragging of a body led from the wall to the garage.

On April 5, defendant was arrested and waived his Miranda rights in writing. He told Detective Cross that he had seen Wendy on April 2, between 4:00 p.m. and 4:30 p.m., while she was playing with his sister, K. Wendy told him his mother owed her $5 for a pair of earrings. Defendant gave her $3 and said he would not have the rest until his mother returned from work. Wendy continued to play with K. and defendant paid little attention to them.

Fifteen minutes after paying Wendy, defendant took his mother’s car in for servicing. He returned home, then walked to his friend Desron Kimbell’s house. Mr. Kimbell was not present, but defendant stayed at the house for an hour, having a drink with Kimbell’s brother, Anthony. Later, defendant and his mother went to visit his brother, Richard. They returned home at 11:00 o’clock that evening and he went to bed.

Detective Cross told defendant he did not believe him. Defendant was silent for 30 or 40 minutes. During that time he did not request counsel or decline to talk anymore. Finally, defendant asked Cross for shoes to replace those that had been taken from him for comparison with footprints found in the garage. When Cross gave him some shoes, defendant began to cry and asked Cross, “What do you want to know?” Cross replied, “Start from the beginning and tell me what happened.”

Defendant then told Cross a story that implicated his friend Desron Kimbell. He said Wendy came to his room about 5:00 p.m. and asked for the remaining $2. Wendy entered the room, and as defendant started to lock the door, Kimbell arrived. Kimbell came in and locked the door. The men, who were already high on marijuana, drank malt liquor. Defendant told Wendy to take off her clothes. Wendy was unwilling, but complied when the men “raised their voices.” Defendant said, “I told her to get on the bed-and I got on her.” Defendant accomplished intercourse, but did not ejaculate. Defendant dressed, and Kimbell began touching Wendy’s breasts. Defendant went to his mother’s house. When he returned 10 minutes later he saw a small black and silver revolver on the bed. Wendy’s body was in the closet with something in her mouth. Defendant knew she was dead, although he had not heard a shot. As Kimbell began to tie her hands, defendant asked what happened. Kimbell responded, “She wouldn’t shut up.”

They bound Wendy’s body in an old sheet and Kimbell suggested hiding it in the vacant garage. Defendant knew a board covering the garage window was loose. While they were moving the body defendant thought he heard someone coming. He told Kimbell to go ahead while he checked the noise. Minutes later Kimbell told him he had put the body in the garage. They disposed of the carpet from defendant’s closet floor in a trash bin in a nearby park. Kimbell took the gun; defendant did not know what became of it. While Wendy was still alive, defendant took her gold necklace and put it in his dresser drawer.

Cross prepared a written account of defendant’s statement, which defendant signed.

After further investigation, Detective Cross told defendant his mother and sister did not remember seeing Desron Kimbell that day. Defendant retracted his previous statement insofar as it involved Kimbell. He now said, “Desron didn’t have nothing to do with this.” Defendant gave a final Mirandized statement that was videotaped.

According to this version, Wendy returned to defendant’s room at 5:30 p.m. He and the 11 year old had consensual sexual intercourse and he did not ejaculate. Defendant’s Colt .380 “was on the table all the time” and Wendy might have seen it. As he was putting the gun in his drawer, it went off accidentally, striking Wendy. The safety was off and the hammer cocked because earlier in the day he had fired the gun at a refrigerator in the yard. Before the shooting, Wendy let defendant wear her gold necklace. After the shooting, he put the necklace in his dresser.

Defendant went outside to check whether anyone had heard the shot. Satisfied that no one had, he went back to the room “to see if she was breathing or not.” He put a black “head rag” in or on Wendy’s mouth, tied her hands, and bundled her into a sheet. He knew the garage on the adjoining lot was vacant and that the board covering the . window was loose. After dark he hid Wendy’s body there. He threw the gun into the ocean.

c. The forensic evidence

Criminalist Heidi Robbins examined the garage where Wendy’s body was found. The clothed body was wrapped in newspaper and then a sheet, which was knotted at both ends. In Ms. Robbins’s opinion, the sheet was knotted so that it could be used as a sling to carry the body. Wendy’s hands were tied behind her back. A damp, wadded-up paper bag was found stuffed into her mouth, possibly as a gag. A black “head cap” or scarf was wrapped tightly around Wendy’s face and covered her mouth.

Seminal fluid matching defendant’s DNA was recovered from Wendy’s vagina. Under the “ceiling” method of calculation, the likelihood of a match was 1 in 980,000. Defendant’s fingerprints were found on the newspapers that lined the sheet containing Wendy’s body.

The cause of death was a gunshot that passed through Wendy’s heart, liver, and aorta, finally lodging in her spine. Soot particles around the rim of the entrance wound indicated that the muzzle of the gun had been pressed against Wendy’s blouse. Whether Wendy’s hands were tied before or after her death was not determined. There was hemorrhaging or internal bleeding at the entrance of her vagina, consistent with sexual intercourse.

The extent of the hemorrhaging at Wendy’s vaginal entrance was disputed. The coroner characterized it as “minor” or “minimal.” However, Dr. Carol Berkowitz, a professor of pediatrics who specialized in child abuse cases, reached a different conclusion. Having reviewed the autopsy report and examined the coroner’s photographs, Dr. Berkowitz described the hemorrhaging as “moderate to severe.” “[Mjost often in the case of a sexual assault you see small microscopic injuries that are difficult to see without assistance. It is distinctly unusual ... to see this degree of injury following a sexual assault [upon a child].” In Dr. Berkowitz’s opinion, the injury was caused by “blunt force trauma,” by which she meant that it was a “collision-type injury, a collision between two bodies and two tissues.” This type of injury would be consistent with rape.

Pursuant to a warrant, Detective Cross searched defendant’s room. In defendant’s dresser he found Wendy’s gold chain and a holster for a small-caliber pistol, like a .380. In the yard outside defendant’s room Cross found a shell casing near a refrigerator. The shell casing was compared with a bullet recovered from Wendy’s body. Both were .380-caliber, but without a gun to test fire, the firearms expert could not say more. A pubic hair removed from Wendy’s left middle finger was physically and microscopically similar to a pubic hair taken from defendant.

d. The question of Desron Kimbell’s involvement

Both the prosecutor and defense counsel gave opening statements at the outset of the trial. In her opening statement, defendant’s attorney said, without elaboration, “there is evidence that will suggest that [Desron Kimbell] may have been involved in this incident.”

As earlier noted, defendant gave contradictory statements regarding Kimbell. In his third statement to Detective Cross, defendant claimed that Wendy was shot while she was alone in defendant’s room with Kimbell. However, in his fourth and final statement to Cross, defendant asserted, “Desron didn’t have nothing to do with this.”

Defendant’s sister K. placed Kimbell at the scene of the crime. K. testified that while she was playing outside the garage, defendant told her to go to the store for change so he could pay Wendy what Mrs. Williams owed her. When she left, Wendy remained and Kimbell was in defendant’s room.

Kimbell was arrested for Wendy’s murder on April 6, after defendant implicated him. When arrested Kimbell wore a bloody T-shirt and blood-spotted sneakers. He had an alibi covering the time in question and an innocent explanation for the blood on his clothes. His testimony was supported by that of his mother, Gwendolyn Myles, and his friend, Jerome Govan, an employee of the Los Angeles County Probation Department. Forensic evidence also pointed to his innocence.

Kimbell was called by the prosecution and testified that when Wendy was murdered he was watching televised basketball games with Jerome Govan. They started watching the two games at 1:00 p.m. When the second game was over, sometime after dark, Govan gave him a ride home. Kimbell’s mother testified that he spent the day at Govan’s house.

Jerome Govan testified that he and Kimbell watched two basketball tournament games at his home that day. It was stipulated that the games started at 2:30 p.m. and 4:30 p.m., respectively. Kimbell did not leave Govan’s home until 8:00 p.m.

Kimbell provided the following explanation for his bloodstained clothes: The day after Wendy’s murder he got into a fight with a friend named Lee Clayton. A police officer breaking up the fight “busted me in the head with a billy club. And that is how I got the blood all over me.” His mother took him to a Kaiser hospital for stitches. Jerome Govan was present during the fight. Defendant’s mother and Govan corroborated Kimbell’s testimony on this point.

No DNA evidence linked Kimbell to the crime. The DNA on Wendy’s vaginal swab did not match Kimbell’s. His fingerprints did not match those found on the newspapers that lined the sheet containing Wendy’s body. DNA testing established that the blood on Kimbell’s shoes could have been Kimbell’s, but not Wendy’s. Kimbell gave no testimony about defendant, his activities, or whereabouts on the day of the murder.

2. Defense Evidence

The defense re-called Detective Cross and established that he arrested Kimbell based on defendant’s statement implicating him. Kimbell told Cross that he went to his friend Jerome’s house about 9:00 a.m. or 10:00 a.m. the day Wendy was murdered. His account of their activities earlier in the day differed somewhat from his trial testimony. He told Cross they had driven to Long Beach, played basketball, and returned to Jerome’s between 5:30 p.m. and 6:00 p.m. He said they watched basketball on television until 8:00 p.m., when Jerome drove him home. On cross-examination, Detective Cross testified that Kimbell was calm and exhibited none of the anxious behavior that in Cross’s experience suspects tend to display when lying.

In addition to the T-shirt Kimbell was wearing when arrested, a second bloodstained T-shirt was found in his room. The rest of the defense case was devoted to trying to demonstrate that there was confusion about which of the T-shirts was tested for blood type. However, in her closing argument to the jury, defense counsel made no reference to this issue.

Defense counsel’s closing argument regarding Kimbell boiled down to the bare assertion that he was “a fact in this case.”

B. Penalty Phase

1. Prosecution Evidence

The prosecution established that in the three years before Wendy’s murder defendant had committed an assault and a burglary. While incarcerated awaiting this death penalty trial he also committed two assaults, a robbery, and an attempted extortion, and he possessed a “shank.”

a. The assault on Maria Velez

Maria Velez lived across the street from defendant and had known him a long time. On September 10, 1985, he knocked on her door, holding a pair of pliers. Ms. Velez knew he had borrowed pliers from her husband, so she assumed he was returning them. When she opened the door defendant grabbed her, pulled a gun, and tried to push her back into the house. As Ms. Velez broke free, defendant pulled her blouse off, severely bruising her arms. Ms. Velez ran outside screaming to her neighbor, Maurelio Sanchez. Mr. Sanchez armed himself and entered Ms. Velez’s house. He saw a gun on the floor and the shadow of a man running outside the back door. In the house the investigating officer found pliers and a BB gun that looked like a .45-caliber automatic.

b. The burglary of the Dodson residence

On January 10, 1987, Virginia Dodson returned home to find that her videocassette recorder was missing. Defendant stipulated that he was convicted of burglarizing the Dodson residence.

c. The assault and robbery of Lorenzo Lewis

On January 10, 1990, Lorenzo Lewis was in a Los Angeles County jail cell with defendant and others. Someone said Lewis belonged to the Bloods gang. Defendant asked if it was true. Lewis denied it, but defendant hit him in the left eye, causing permanent scarring. Defendant also took money from Lewis’s pocket. After Lewis reported the incident, two sheriff’s deputies saw small cuts on his left eye and cheek.

d. Attempted extortion of La Wong Ellison

On October 29, 1990, defendant told La Wong Ellison, another county jail inmate, that “they” were going to “jack” him. Ellison understood “they” to refer to defendant’s “homies.” Defendant said he could prevent the attack if Ellison paid him. Defendant admitted to Deputy Sheriff Steven Johnson that he told Ellison that people intended to rob him.

e. Possession of a deadly weapon in jail

On January 30, 1992, Deputy Sheriff Gary Gerlach discovered a makeshift knife, or “shank,” in defendant’s mattress. The shank was a long metal screw filed to a point, with plastic and cloth melted around it to serve as a handle. Defendant was in a single cell he had been occupying for a month. Everything in the cell, including the mattresses, would have been searched before he was housed there. The bunk was six feet inside the cell, so it would have been impossible for anyone to reach inside and hide the shank in the mattress. Jail security procedures made it unlikely that another inmate could have entered the cell. Two thin foam mattresses, one on top of the other, a total of two inches of foam padding, were on defendant’s metal bunk. The shank was hidden inside a slit in the middle of the top mattress, so “[sjomebody laying [sic] on that would have definitely felt it.”

f. Assault on Manuel Toscano

On May 14, 1992, inmate Manuel Toscano was assaulted by defendant and two other men who accused him of stealing their candy. Hector Camarena, a jail inmate, saw the assault and told the guards. Toscano received medical treatment for a bloody nose, a bloody mouth, and a black eye. Deputy Sheriff Ronald Smith interviewed defendant and the other two suspects. One of the others told Deputy Smith that the “esse,” a slang term for “Hispanic,” had taken his candy.

2. Defense Evidence

a. The testimony of defendant’s family

Defendant’s mother Mary Williams had nine children by four men by the time she was 29. Defendant, her first child, was bom when she and the father, Jesse Howard, were 15. Five of Mrs. Williams’s other children were fathered by Jeffrey Williams. Mrs. Williams lived with him periodically from the time defendant was two until he was 15.

Mr. Williams would frequently get dmnk and fight with Mrs. Williams. At the age of six or seven defendant was too young to protect his mother, so he would sneak out of the house, sometimes at night, and walk a mile to his maternal grandmother’s house for help. Mr. Williams physically abused defendant, once trying to whip him with an extension cord. When Mrs. Williams grabbed the cord Mr. Williams started fighting with her.

When not living with Mr. Williams, Mrs. Williams and her children resided with her mother and father, the Greens. Four of the Greens’ own children were still at home at that time, so there were eight children in the two-bedroom house. Mr. Green had a good relationship with both Mrs. Williams and defendant. One of Mrs. Williams’s adult brothers once tied defendant’s hands and feet and beat him with a fan belt, raising welts on his back and legs. Mrs. Williams called the police, which angered her mother.

While awaiting trial defendant wrote affectionate letters to his mother; when they spoke on the phone he always asked about his siblings. His oldest sister and a younger brother visited him and stayed in touch by mail.

b. The testimony of Dr. James Bush

Dr. James Bush held a doctorate in social work, was a professor in the California State University system and also maintained a private practice. He was retired from the Los Angeles County Department of Mental Health, the Charles Drew Medical School, and Martin Luther King, Jr., hospital. Dr. Bush interviewed defendant and his mother twice. He also interviewed Mrs. Green and defendant’s siblings. He reviewed defendant’s probation file and school records, along with the welfare files of defendant’s mother and her parents, the Greens.

Dr. Bush noted that it is very difficult for a young mother to carry out her parenting responsibilities while still a child herself. This would be especially true if the mother were to have nine children in 14 years. Mrs. Williams remained dependent on her parents as well as on the welfare system. The Greens, in turn, were also dependent on welfare because Mr. Green was disabled by arthritis. At one point Mrs. Williams was living with the Greens in their two-bedroom home along with her seven children, two of her uncles, and others. On one occasion, two of defendant’s siblings were removed by the authorities from Mrs. Williams. She later took parenting classes.

Though Mrs. Williams told Dr. Bush that defendant had no serious illness, in fact he suffered from anemia and asthma. Defendant received B’s and C’s in the ninth and 10th grades, but earned failing grades the next year.

Defendant’s father, Jesse Howard, wanted to marry defendant’s mother, but her parents prevented it. They also prevented Mr. Howard from having any contact with defendant as a child. Mr. Howard managed to establish contact with defendant as he grew older. When defendant was 16, a probation officer reported that he would have recommended that defendant be returned to camp but for his father’s “genuine concern regarding his son’s future.” When defendant was in juvenile hall, Mr. Howard would visit. He told defendant’s probation officer that he wanted defendant to come live with him in Washington State and that his wife was completely supportive. Defendant did spend several summers with his father, a self-employed mechanic, and his stepmother, a transit authority bus driver. Defendant said he left their home because he saw Mr. Howard using phencyclidine, but Mr. Howard thought it was because defendant was young and homesick.

On direct examination, Dr. Bush questioned the generally positive picture defendant, his mother, and grandmother painted of their family life. However, on cross-examination, Dr. Bush admitted he did not have any information to prove or disprove their descriptions.

c. The testimony of Wendy’s principal

Peter Thomas Danna, Jr., was the principal of the elementary school Wendy attended. She was “a little ahead” of girls her age in terms of physical maturity. Her reading and math scores were not at grade level. However, Wendy demonstrated leadership potential, and Mr. Danna anticipated that she might soon have become a class or student body president.

II. DISCUSSION

A. Pretrial Issues

1. Notice of Aggravating Evidence

Defendant contends the notice of aggravating evidence involving certain crimes he committed while in jail was statutorily defective and violated his rights under the federal Constitution. (U.S. Const., 5th, 6th, 8th, 14th Amends.; § 190.3.)

Section 190.3 bars presentation of any evidence in aggravation, except when offered in rebuttal, “unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial.”

On June 21, 1991, nearly a year before jury selection began, the prosecutor filed a notice of penalty phase evidence pursuant to section 190.3. The notice did not include any misconduct by defendant in jail.

On June 3, 1992, jury selection began.

On June 5, the prosecutor conducted a computer search and became aware for the first time of violent acts defendant committed while incarcerated. She gave defense counsel a computer printout of this information the same day.

On June 15, the jury was sworn.

On June 16, the prosecutor orally advised the court that she intended to introduce in the penalty phase “four incidents of criminal behavior in the jail.”

On June 18, defendant’s public defender objected to the introduction of 18 additional jailhouse incidents of which she had been informed by the prosecutor only the day before. Defendant’s attorney told the court: “If counsel is now saying there are some 18 other incidents she may be bringing up, I haven’t investigated those; I am not ready. I would have considered how I picked a jury if I knew about all this stuff. I haven’t even received all the material yet. I don’t know who these potential witnesses are or their criminal background^]. And probably the thing that is the biggest sense of urgency for me right now is if you have got some 18 incidents from jail and a bunch of jail inmates, you are going to hit other public defender clients and I am going to end up in a conflict situation . . . .” Defense counsel argued that defendant would be prejudiced, being forced to start all over again with new counsel, if she had to withdraw because of conflicts.

The court commented that defense counsel had received notice.

Defense counsel replied: “All right. As far as notice, I was given a two-page printout with like three or four names about June 3rd [sz"c]—I can’t remember when—and I started checking on those names. But what counsel is now saying, she is going to give me a whole lot more names . . . .” (Italics added.)

The court responded to defense counsel’s concerns by advising the prosecutor: “[Wjhatever you have now, that is what you are stuck with. No further investigation. No other names will be added to the list.” Defense counsel asked, “Can I assume . . . there would not be any other witnesses that I need to worry about in terms of a conflict or them testifying in this case?” The court responded, “That is my ruling.” Defense counsel thanked the court.

The four jail incidents eventually introduced into evidence at the penalty phase were the same four incidents of which defendant was informed on June 5, not any of the 18 additional incidents raised by the prosecution at the June 18 hearing. Defendant does not contend otherwise.

Defendant’s failure to object to the notification of these four incidents on June 5, or during the prosecution’s subsequent effort to introduce the 18 additional incidents, bars him from challenging the adequacy of the notification on appeal. (People v. Medina (1995) 11 Cal.4th 694, 771 [47 Cal.Rptr.2d 165, 906 P.2d 2].)

Moreover, the purpose of the notice requirement is to allow a defendant sufficient opportunity to prepare a defense to the aggravating evidence. (People v. Blair (2005) 36 Cal.4th 686, 751 [31 Cal.Rptr.3d 485, 115 P.3d 1145]; People v. Smith (2003) 30 Cal.4th 581, 619 [134 Cal.Rptr.2d 1, 68 P.3d 302] (Smith).) Here, defendant had ample opportunity to prepare. The penalty phase trial began on July 20, 1992, more than a month and a half after he received notice of the four jail incidents.

Defendant counters that the prosecution’s failure to inform him of this evidence until after jury selection had begun prejudiced his ability to conduct an effective voir dire. This argument rests on a false premise. “The purpose behind the notice requirement ... is to permit the defendant to prepare a defense at the penalty trial, not to question prospective jurors about every bit of evidence they might hear. Defendant’s argument would mean that no evidence discovered after the beginning of trial would ever be admissible, which is not the law.” (Smith, supra, 30 Cal.4th at p. 620.)

2. Wheeler/Batson Motions

Defendant contends that the prosecutor exercised three peremptory challenges on racial grounds, in violation of his right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution, and his right to equal protection under the Fourteenth Amendment to the United States Constitution. (See Batson v. Kentucky (1986) 476 U.S. 79, 97 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) The dispositive question here is whether defendant made a prima facie case of group bias. To do so, the defendant must make a “ ‘showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.]” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410] (Johnson); see also People v. Bonilla (2007) 41 Cal.4th 313, 341 [60 Cal.Rptr.3d. 209, 160 P.3d 84] (Bonilla).) Where, as here, it is not clear whether the trial court used the reasonable inference standard, rather than the recently disapproved “ ‘strong likelihood’ standard,” we review the record independently. (Bonilla, at p. 342.) We have done so here. Defendant fails to meet the reasonable inference standard.

Defendant is an African-American. The peremptory challenges in question were to: (1) P.T., an African-American woman, (2) A.A., a Hispanic man, and (3) D.M., an African-American man. The court expressly found there was no prima facie case of discrimination against P.T. or D.M. It impliedly, but nonetheless clearly, found there was no prima facie case of discrimination in the excusal of A.A.

The prosecutor excused eight potential jurors: four Caucasians, two African-Americans, one Hispanic, and one Asian-American. The jury as sworn, including alternates, was comprised of eight African-Americans, five Hispanics, three Caucasians, one Asian-American, and one person of mixed race.

Defense counsel objected to the exclusion of Prospective Juror P.T. solely on the ground that both P.T. and defendant were African-Americans. The prosecutor pointed out that she had excused three prospective jurors and P.T. was the first African-American excused. She argued, “There has been no prima facie showing of a pattern of discrimination on the excuse of one person, particularly one who indicated so much reluctance to follow the court’s instructions.” Defense counsel asked that the prosecutor state her reasons for challenge. The prosecutor responded by asking the court to rule, first, on whether a prima facie case of discrimination had been made. The court ruled the defense had not made a prima facie case. It characterized the motion as “groundless” and as supported by “no reason at all.” The court observed that the prosecutor had at that point excused “one female Caucasian [and] one male Japanese.”

Both the prosecutor and the court referred to Prospective Juror P.T.’s apparent reluctance to follow the law as stated by the court. The prosecutor was referring to an answer that P.T. gave on the juror questionnaire. Question No. 89 asked, “If the judge gives you an instruction in law that you feel is different from a belief or opinion that you have, how will you deal with that conflict?” P.T. responded, “My opinion is important to me, so I would talk to the judge. We will have an [ric] discussion about the differences we have[,] to come to some agreement.” On voir dire, the court pursued the matter at some length. The exchange left the court feeling that P.T. “didn’t want to follow the law” and was “arrogant, flippant.” We note that the court resolves legal questions and does not negotiate them with individual jurors.

Defense counsel next objected to the excusal of Prospective Juror A.A. She noted that A.A., a 19-year-old Hispanic male, was a “person of color.” The court observed, “I don’t know what you are talking about, but I am going to let [the prosecutor] respond to this.” Defense counsel repeated her concern that the prosecutor was exercising her peremptories on the basis of race. The court noted that before the prosecutor challenged A.A., “she excused a female Caucasian, male Japanese, female [B]lack, male [Wjhite, [and] a female Caucasian . . . .” The court asked the prosecutor, “Do you want to respond?” Apparently, the jury pool was quite diverse. The prosecutor noted that because the panel was largely comprised of ethnic minorities, any peremptory challenges would likely be made to minorities. The prosecutor continued, “I don’t think I have to make the showing. I don’t think the court has made the finding that there is a prima facie pattern. In fact, the court’s finding is to the contrary, [f] But I will be happy to put on the record—” The court interjected, “Please put the court and the defense counsel at ease here.” In this context the court did not make a finding of prima facie discrimination, but accepted the prosecution’s offer to make a record.

When the trial court expressly states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for the record on appeal, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied. (People v. Welch (1999) 20 Cal.4th 701, 746 [85 Cal.Rptr.2d 203, 976 P.2d 754]; People v. Turner (1994) 8 Cal.4th 137, 167 [32 Cal.Rptr.2d 762, 878 P.2d 521].) Under such circumstances, we sustain the trial court if, upon independently reviewing the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose. (Johnson, supra, 545 U.S. at p. 168.)

Here, the trial court did not expressly rule that defendant had failed to make a prima facie case. However, by reciting the races of the prospective jurors excused by the prosecutor, the court clearly implied that a prima facie case of discrimination had not been made. We agree it had not been.

The voir dire here provided the prosecutor with ample grounds for reasonably challenging A.A. Two of the prosecutor’s concerns, with which the court ultimately agreed, were that A.A.’s answers on the juror questionnaire revealed a flippant attitude toward the proceeding and suggested he was trying to avoid jury service. Question No. 60 asked prospective jurors for their thoughts about, among others, prosecutors and defense attorneys. A.A. wrote that prosecutors “are trickly [szc] people,” and that defense attorneys “will say anything.” Question No. 82 asked whether the prospective jurors had any problems that “might interfere with your ability to concentrate on the case or might cause you to ‘hurry-along’ your deliberations.” A.A. checked “Yes.” He explained: “I’m a student and this is my summer vacation .... I want to have fun and relax and not think about school.”

On voir dire, the prosecutor asked A.A., “I kind of had the impression that you enjoyed writing about prosecutors and defense attorneys and all with an eye towards ... the fact that you would rather not serve on a long case, [f] Am I right about that?” A.A. answered yes, although he went on to say that if selected, he would not, in fact, rush to judgment. The prosecutor pursued the point. “[Prosecutor]: So you are sort of having fun with us a little? [][] [A.A.]: Sort of. [][] [Prosecutor]: Letting us know you would rather have fun this summer? [f] [A.A.]: Yeah.”

The court agreed with the prosecutor. “I found [A.A.] to be . . . flippant in his answers on his questionnaire. He was trying to get off the jury panel.”

Finally, defense counsel asserted that the prosecutor had challenged Prospective Juror D.M., an African-American man, on the basis of his race. The court ruled that defense counsel had not made a prima facie showing. The court noted that D.M. was one of six prospective alternates and that four of the six were persons of color: three African-Americans and one Hispanic. The court also observed that D.M. declined to fill out substantial portions of the jury questionnaire, marking “confidential” on “almost all of his answers.” Again, upon an independent review of the record, we find no error. An advocate may legitimately be concerned about a prospective juror who will not answer questions.

We decline defendant’s invitation to engage in comparative juror analysis. Like Bonilla, supra, 41 Cal.4th 313, this is a “first-stage” Wheeler/Batson case, in that the trial court denied defendant’s motions after concluding he had failed to make out a prima facie case. It is not a “third-stage” case, in which a trial court concludes a prima facie case has been made, solicits an explanation of the peremptory challenges from the prosecutor, and only then determines whether defendant has carried his burden of demonstrating group bias. “We have concluded that Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196, 125 S.Ct. 2317] does not mandate comparative juror analysis in these circumstances (People v. Bell, supra, 40 Cal.4th at p. 601), and thus we are not compelled to conduct a comparative analysis here. Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales, and we thus decline to engage in a comparative analysis here.’’ (Bonilla, at p. 350.)

We have encouraged trial courts to ask prosecutors to give explanations for contested peremptory challenges, even in the absence of a prima facie showing. (Bonilla, supra, 41 Cal.4th at p. 343, fn. 13.) We emphasize that if a court ultimately concludes that a prima facie showing has not been made, the request for and provision of explanations does not convert a first-stage Wheeler/Batson case into a third-stage case.

Defendant’s claim that the trial court did not make “a sincere and reasoned effort” to evaluate the nondiscriminatory justifications proffered by the prosecutor is unsupported by the record.

B. Guilt Phase Issues

1. Flight Instruction

The jury was instructed that evidence of flight alone is insufficient to establish guilt, but may be considered along with other facts in deciding the question of guilt or innocence. (See CALJIC No. 2.52.) The giving of such an instruction is statutorily required when flight evidence is relied upon by the prosecution. Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [|] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. PH] The weight to which such circumstance is entitled is a matter for the jury to determine. [