People v. O'Malley (62 Cal. 4th 944, 2016)

Opinion

KRUGER, J.

Defendant James Francis O’Malley was convicted at trial of three counts of first degree murder (Pen. Code, § 187, subd. (a)), one count of conspiracy to commit murder (§ 182), and one count of robbery (§§211, 212.5, subd. (b)). The jury acquitted defendant of a second charge of conspiracy to commit murder. The jury also found true special circumstances alleging murder for financial gain, multiple murder, and robbery murder. (§ 190.2, subd. (a)(1), (3), (17)(A).) Additionally, the jury found true allegations that defendant personally used a firearm and a deadly and dangerous weapon in the commission of the offenses. (Former §§ 12022, subd. (b), 12022.5, subd. (a).) Following a penalty trial, the jury returned a verdict of death. The trial court denied the automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

1. Summary

In 1986 and 1987, defendant was a member of a Hayward-based motorcycle club called the Freedom Riders, as well as president of its San Jose chapter. The evidence presented at trial showed that the three murders of which defendant was convicted all had some connection to his involvement in the club. The first victim, Sharley Ann German, was married to Geary German, a fellow Freedom Rider, who paid defendant to kill Sharley Ann to prevent her from divorcing him and claiming their marital assets. The second victim, Herbert Parr, was a Freedom Rider “wannabe” whom defendant and Rex Sheffield, another Freedom Rider, killed to obtain Parr’s motorcycle. The third victim, Michael Robertson, was a friend of defendant’s whom defendant and Sheffield killed because defendant suspected him of being a “snitch.” Defendant either admitted the killings or implicated himself in them in statements he made to various people, including one of his girlfriends, Brandi Hohman.

2. Prosecution Case-in-chief

a. The Sharley Ann German Murder

Sharley Ann German was married to Geary German, who, like defendant, was a member of the Freedom Riders. They lived with Thomas M. (Sharley Ann’s teenage son), Judith Flemate (a friend of Sharley Ann’s), and Flemate’s husband. Defendant and Geary were good friends. In 1985, another Freedom Rider, Rex Sheffield, fatally shot Geary’s neighbor Frank Ramos, with whom Geary had had a dispute. The killing occurred in the Germans’ garage with a gun belonging to Geary. Sharley Ann told police Sheffield was the shooter and showed them where the gun was concealed. Sheffield was arrested and pled guilty to involuntary manslaughter. Geary was angry that Sharley Ann had snitched on Sheffield and their marriage began to deteriorate.

In April 1986, Sharley Ann confided to her friend Judith Flemate that she wanted to divorce Geary because he was having an affair with a coworker named Sandra Lithgow. Sharley Ann confronted Geary about the affair and also told Lithgow’s husband about it. Flemate later heard the couple quarrel-ling in the garage and when they emerged, Sharley Ann had a black eye and her throat was bruised. A few weeks later, Sharley Ann told Flemate, in Geary’s presence, that when she married Geary she had paid off his debts and paid for work on their house, and she would see to it that he lost the house and their bank accounts. Geary was very angry. Sharley Ann also told her friend Joan Whitworth that she wanted to divorce Geary and keep the house, and mentioned that she had a life insurance policy.

Geary was scheduled to return to jail and serve his sentence for his part in the Ramos killing while Judith Flemate and her husband remained with Sharley Ann, who was worried about retaliation from Ramos’s family. Geary, however, wanted them to leave, so they moved out a few days before April 25.

On the morning of April 25, a Friday, Thomas M. woke up at 6:00 a.m., and talked to Sharley Ann before leaving for school. Geary had already gone to work, clocking in at 6:45 a.m. Daniel Whitworth, Joan’s husband, talked briefly to Sharley Ann on the phone around 9:40 a.m., when he called and asked to borrow a battery charger, and again a few minutes later when she called back and asked to borrow a book. She seemed normal and was apparently alone. Her mother also spoke with her briefly by phone around the same time. Thomas returned home from school around 4:00 p.m. The front door was unlocked, which was unusual. He went into his bedroom to change clothes, where he discovered Sharley Ann’s body on the floor between the dresser and the bed. He went to the home of Reni Jensen, the next-door neighbor, for help. Jensen called 911.

Sergeants Philip Beltran and Charles Hahn and Officer Herb Brown of the San Jose Police Department were dispatched to the German residence. All were present when Geary appeared around 4:30 or 5:00 p.m., which was later than he usually arrived home on Fridays. According to Officer Brown, Geary showed no emotion upon the discovery of his wife’s murder. It appeared to Sergeants Beltran and Hahn that he was pretending to be anguished.

Sharley Ann’s autopsy revealed she had been stabbed on the left side of her neck, severing her carotid artery, and shot in the head with a .25-caliber handgun. The medical examiner attributed her death to both wounds.

Geary received the proceeds of Sharley Ann’s insurance policy and bought a red Corvette with the license place “CRIKET4.” “Cricket” was his pet name for Sandra Lithgow, whom he continued to see after Sharley Ann’s death. Sharley Ann’s silver Honda went missing after her death. On July 25, 1986, it was found abandoned just off the Dumbarton Bridge near Interstate 580.

On the day his mother was killed, Thomas M. told police he thought a member of the Ramos family might have killed her because of the ongoing feud between the families in the wake of Frank Ramos’s death. Police investigated Ramos’s wife, Connie, but Sharley Ann’s murder remained unsolved until defendant was arrested in 1988 on other charges.

Following defendant’s 1988 arrest, Theodore Grandstedt, with whom defendant sold drugs, told police that Geary had hired defendant to kill his wife. Grandstedt told police he saw defendant the day of the killing. Defendant was excited and agitated and told Grandstedt he had finished doing the job, which Grandstedt understood to mean that he had killed Sharley Ann. Grandstedt said defendant and Geary had a dispute over payments for the killing. He told police that defendant and Karen Dolan (one of defendant’s girlfriends, the mother of his children, and eventually his wife) argued about Geary owing money to defendant for his part of the job.

In July 1987, defendant described how he killed Sharley Ann to Robert Fulton, a one-time Freedom Rider. He said he went to her house, talked to her for a while, then went into another room and stabbed her in the neck. After he stabbed her, he shot her. He told Fulton that Sharley Ann “was a tough bitch to kill,” and that Geary had hired him to kill Sharley Ann because she was going to divorce Geary and “take everything.” Defendant said Geary paid him $2,500 and gave him Sharley Ann’s silver Honda, which Fulton had seen in the Germans’ driveway before Sharley Ann was killed. Defendant called him when the car broke down on the side of the Dumbarton Bridge and asked Fulton to help him fix or move it. Fulton declined and defendant abandoned the car.

Marlene Fulton, Robert Fulton’s wife, saw defendant driving Sharley Ann’s car after the murder. Defendant subsequently told her he had killed Sharley Ann. She agreed with her husband that defendant showed up at their residence after the car broke down on the Dumbarton Bridge.

According to Brandi Hohman, one of defendant’s girlfriends, defendant told her he was hired by Geary to kill Sharley Ann, which he did by shooting her and cutting her throat. Defendant also told Hohman he sold the .25-caliber handgun he had used to a girl he met at the home of their mutual friend, Laurel Beiling. In December 1986, Alison Hurst, who was living with Beiling, bought a .25-caliber semiautomatic handgun from defendant.

At trial, defendant’s friend Richard Balthazar testified that around the summer of 1986 he cleaned a gun for defendant, who gave him the box the gun came in. Police obtained the box from Balthazar. Edward Peterson, an expert in firearm identification, testified that the bullet that killed Sharley Ann German had characteristics consistent with a bullet fired from the gun that would have been contained in the box.

b. The Christopher Walsh Robbery

To provide context for subsequent events related to the charged offenses, the prosecution, over defendant’s objection, presented evidence that defendant robbed Christopher Walsh. In December 1986, Walsh, who aspired to join the Freedom Riders, was staying with defendant and Hohman at a motel in Mountain View. Walsh and defendant had a falling out after Walsh kicked defendant’s dog and Walsh moved out of the motel room. Later, he called defendant and asked if he could return to pick up some of his belongings. Defendant agreed. Walsh returned to the motel and he and defendant used methamphetamine. Defendant then pistol-whipped Walsh and forced him to write a phony bill of sale for his motorcycle, turning it over to defendant. Defendant told Walsh that if he went to the police, defendant would hunt him down and kill him. Walsh nonetheless reported the robbery to the police, and a warrant was issued for defendant’s arrest.

c. The Herbert Parr Murder

According to his girlfriend, Linda Magner, Herbert Parr was a motorcycle club wannabe. In late 1986 or early 1987, Parr met Joseph Martinez, a member of the Freedom Riders, and through Martinez he met defendant, who sold marijuana to Parr. Magner sensed that the two men disliked each other, an impression confirmed by defendant’s girlfriend Brandi Hohman, who said that defendant usually used the derogatory term “lop” to describe Parr.

Linda Magner bought Parr a Harley Davidson motorcycle. Parr was proud of the motorcycle and liked showing it off to his Freedom Rider acquaintances, including defendant. On the night of August 14, 1987, Parr told Magner he was going to Joseph Martinez’s house and would return in a couple of hours. She never saw him or the motorcycle again. That night, Pan-showed up at a party at his brother David’s house. A number of Freedom Riders were at the party, including defendant and his friend Rex Sheffield, the man who had killed Frank Ramos. When David went to bed between 1:00 a.m. and 3:00 a.m. that morning, Parr was still at the party.

Defendant was selling drugs at the party. He had earlier told Brandi Hohman he knew Herbert Parr was going to be there and that he wanted Parr’s motorcycle. He said he was going to wait for Parr at the party and intimidate him. When defendant and Parr encountered each other, defendant made “mean” comments to Parr, who seemed afraid of defendant. Hohman heard defendant and Rex Sheffield talking about taking Parr’s motorcycle for a ride. Sheffield became offended when Parr bragged about knowing a member of the Hells Angels whom Sheffield knew was dead.

Defendant and Parr disappeared into a back room for an hour and when they emerged they acted like buddies. Defendant decided to move the party to the home of his friend Laurel Beiling and invited Parr to come along. Brandi Hohman and defendant left in his car while Parr followed on his motorcycle. On the drive to Beiling’s, defendant told Hohman he was going to beat up Parr and take his motorcycle.

There was no party when defendant, Hohman, and Parr arrived at Beiling’s residence; everyone there was asleep. Defendant, Hohman, and Parr went into Beiling’s bedroom, where they used methamphetamine. Hohman was sent to the store. When she returned, Sheffield and his wife, Gail, had arrived. Defendant, Sheffield, and Parr went into the backyard. Defendant asked Parr if he wanted his last cigarette before they went out. Hohman and Gail Sheffield were told to go to the front of the house. While they waited there, Hohman heard a high-pitched voice and strange noises that sounded like gurgling coming from the backyard. Defendant and Sheffield entered the house without Parr and went into a bathroom. Hohman heard running water and defendant told her he and Sheffield had been washing up. Defendant told Hohman to take Yoshi—a friend of Beiling’s staying at her house—to the store in Sheffield’s car and keep him there for a while. When they returned, Hohman and defendant went to the motel where they were staying.

The next day, Laurel Beiling went into her backyard and noticed that a pile of wood beside the shed had been “knocked around.” Inside the shed she found further disarray. She was rearranging a stack of lumber when she found a bloody board with between 17 and 27 “knife stabs” in it, made by a double-edged blade. She also discovered that a double-edged utility knife she customarily wore on her belt was missing. Beiling tried to call defendant but reached Brandi Hohman, whom she told about the bloody board. When Hohman told defendant about the call, he was angry that Beiling had mentioned the subject over the phone. Later Beiling spoke to defendant, who told her to calm down and come to his house. He apologized for leaving her house “in a mess” and said he would clean it up. He returned her knife, telling her it was clean and she had nothing to worry about. Later that day, defendant went to Beiling’s home and together they cleaned up the board and the shed. As they did, defendant told her the less she knew, the better.

A day or so later, defendant brought a U-Haul truck to the motel at which he and Brandi Hohman were staying. With him was Freedom Rider Steven Dyson. Accompanied by Hohman, defendant drove the truck to a house in Fremont because, he told her, “[t]hey had to tear down [Parr’s] bike.” Defendant said another Freedom Rider was going to buy the dismantled motorcycle from Sheffield and defendant. Hohman did not see Parr’s motorcycle in the back of the truck because defendant told her to remain in the cab, but she heard and felt a heavy object being lifted and removed from the back. Defendant and the men who were assisting him went into the garage and closed the door. Eventually, defendant and Hohman returned to their motel.

Sometime after Laurel Beiling’s call, defendant told Brandi Hohman he had killed Parr in Beiling’s backyard. He said he stabbed Parr, then cut his throat and “step[ped] on him trying to push the blood” out of his body “because he wasn’t dying.” Defendant acted out the killing for her. Defendant gave Beiling various versions of Parr’s death but in the most specific and detailed account he said he had killed Parr.

Not long after the Fremont trip, defendant, still driving the U-Haul truck, took Hohman to the house in San Jose defendant sometimes shared with Karen Dolan and their children. It was there, he said, that he intended to “bury [Parr].” At the house, defendant directed Hohman to the garage. She saw Steven Dyson digging a hole in back of the garage. Defendant helped with the digging. When he and Dyson finished, Dyson backed defendant’s car—a white Cadillac—up to the hole and opened the trunk. He and defendant removed Parr’s body, lowered it into the hole, and buried it. Later, defendant asked Laurel Beiling and his friend Michael Robertson to buy baking soda and apples to put in his trunk to remove the smell of Parr’s body.

After defendant’s arrest, police recovered Parr’s body from behind the garage of the San Jose residence. A search of defendant’s car revealed baking soda and dried apples in the trunk.

At trial, the pathologist who performed the autopsy on Parr’s body testified he had died after receiving 18 stab wounds.

d. The Michael Robertson Murder

Defendant was arrested for the Christopher Walsh robbery on April 18, 1987. A bail bondsman posted his bail on April 20; the bail was secured by certificates of title to cars and motorcycles belonging to members of the Freedom Riders. Defendant was scheduled to appear in court on October 7, but failed to do so. Bail was forfeited and an arrest warrant issued. According to Laurel Beiling, one of the Freedom Riders who put up vehicles as security for defendant’s bail was “pissed” by defendant’s failure to appear. Around the same time in early October, defendant got into an accident while riding a motorcycle belonging to Freedom Rider Joseph Martinez. Defendant hid the motorcycle at Beiling’s house and told her not to let Martinez know about the accident until he could repair the damage to the vehicle. Martinez was very angry when he learned about the accident.

As a result of these incidents, defendant began avoiding direct contact with his fellow Freedom Riders and communicated with them through his close friend Michael Robertson. Robertson and defendant were together almost every day and Robertson sometimes shared a motel room with defendant and Brandi Hohman. At some point, however, defendant began to suspect Robertson of being a snitch. Defendant told Hohman that Robertson, who had recently been released from jail, must have made a deal to insinuate himself into defendant’s life and to provide information on him in exchange for Robertson’s release. Defendant told Hohman snitches “should be killed and that snitches breed snitches and their kids should be killed too.” Matters came to a head on October 24, 1987, when defendant wrote a note to Hohman about Robertson that said “[t]he serious mother fucker has to go.” That same day he told Camolyn Ramsfield, Beiling’s daughter, that he believed Robertson was a “federal snitch” and he was going to “take [Robertson] out.” She understood that to mean defendant planned to kill Robertson.

That evening, Brandi Hohman went with defendant to a bar in Mountain View where they met two Freedom Riders, Greg Hosac and Rex Sheffield. Defendant had asked them to meet him there to talk about whether Michael Robertson had been lying about the messages he was carrying back and forth between defendant and club members. After defendant talked to Hosac he told Hohman that Hosac had confirmed his suspicion that Robertson “had been lying to him and the club.” Shortly afterwards, Robertson appeared at the bar, to defendant’s and Hosac’s evident displeasure. Robertson did not join them but remained at the other end of the bar. Later, defendant disappeared and Hohman went looking for him. She found him behind the bar, talking to Sheffield. Defendant told her to leave them. According to Hohman, when defendant and Sheffield returned to the bar, they invited Robertson to join them and “everybody all of a sudden was best friends again.” Defendant invited Robertson to drive with him and Sheffield to Santa Cruz to buy drugs. Robertson said he preferred to return to the motel with Hohman, but defendant shamed him into going with a remark about “being one of them women.” Defendant, Sheffield, and Robertson departed in a car Sheffield had borrowed from Joseph Martinez; the three men were all in the front seat, with Robertson in the middle. Hohman returned to the motel where she, defendant, and Robertson had been staying.

Around 8:15 p.m., Ellen McDonough and her husband were driving to dinner on Highway 17 when she saw a car on the shoulder and a man running around it. The man’s hair was cut in an unusual style that looked like a horse’s mane; the hair ran down the middle of his head with the sides shaved. This was defendant’s hairstyle. When she and her husband returned from dinner, she saw a sheriff’s car and highway patrol car beside the vehicle. She told her husband to stop so she could report what she had seen earlier. Santa Cruz County Deputy Sheriff Joseph Hemingway was one of the officers at the scene. He observed blood smears on the front seat, window, and doorjamb, as well as a blood-soaked bedsheet on the passenger side floorboard. The car was registered to Gilbert Martinez, who was the uncle of Joseph Martinez. Defendant’s and Sheffield’s fingerprints were found in the car.

Around 3:00 a.m. on October 25, Brandi Hohman was awakened by knocking at the door of the motel room. When she opened it, defendant and Rex Sheffield came in. They were later joined by Greg Hosac. Hosac said the police had found the car with blood in it and said “something about they thought that [defendant] had done it.” Hosac and Sheffield were discussing alibis when defendant interrupted and “told them they didn’t have to tell the police anything.” At some point they realized that one of the motel room keys must still be on Michael Robertson’s body and they quickly vacated the room. Defendant and Hohman went to Der Ghan, another motel.

At Der Ghan, defendant shaved his head so he was completely bald. He told Brandi Hohman he had shot Michael Robertson in the head while Rex Sheffield was driving because Robertson had said something that offended one or both of them, and that after removing Robertson’s body from the car he slit Robertson’s throat. When the car ran out of gas, he and Sheffield abandoned it and walked to a restaurant, where they called a friend who came for them. Later that day, Greg Hosac and his wife came to the motel and defendant acted out for them “shooting [Robertson] in the head and cutting [his] throat.” Defendant hid a bag containing his and Sheffield’s bloody clothes and his knife behind a ceiling tile in the room.

The next day, defendant was arrested for failure to appear in the Christopher Walsh case. Brandi Hohman called her mother to pick her up. She took the bag from the ceiling and hid it in her mother’s attic, where police eventually recovered it.

e. Defendant’s Flight and Arrest

Following his arrest on October 26, defendant again made bail. A Massachusetts native, defendant fled to the East Coast with his girlfriend Karen Dolan, their three children, and his other girlfriend Brandi Hohman. Hohman was arrested at an airport in Boston as she was attempting to return to California. Dolan and her children stayed in Massachusetts with Dolan’s sister, who prevented defendant from communicating with Dolan. Angered by this, he told Laurel Beiling in a phone call he was going to kill Dolan’s sister and her four children. Beiling, fearing for the children’s lives, informed the Santa Cruz County District Attorney’s Office of defendant’s location. On January 28, 1988, defendant was arrested in a New York City hotel.

3. Defense Guilt Phase Case

As to the murder of Sharley Ann German, the defense offered evidence that defendant was in Massachusetts when she was murdered and insinuated that she was killed by Connie Ramos, the widow of Frank Ramos. The defense maintained that Rex Sheffield killed Parr and Robertson, and presented evidence attacking the credibility of prosecution witnesses Brandi Hohman and Laurel Beiling. Another theme of the defense was that defendant was a braggart who took credit for crimes he had not committed.

Defendant testified he was in Massachusetts and New Jersey when Sharley Ann was killed on April 25, 1986, and he did not return to California until two days before her funeral. He claimed he learned of her death in a phone call from Karen Dolan. Dolan corroborated his alibi. While in Massachusetts, defendant saw some old friends, three of whom testified they remembered seeing him in late April. Defendant testified that when he returned to California, a friend named Glenn Johnson picked him up at the San Francisco airport and drove him home. Johnson testified that he picked defendant up three or four weeks before Johnson’s birthday, which falls on May 27.

The defense also presented evidence that Connie Ramos was investigated for Sharley Ann’s murder because of the feud between the two families following Frank Ramos’s death. Police investigated inconsistencies in Ramos’s account of her whereabouts the day Sharley Ann was killed. Police also received an anonymous tip that a woman matching Ramos’s description was observed entering Sharley Ann’s house the day of the murder, that sounds of a quarrel were heard, and the woman emerged carrying a rust-colored towel. A search warrant was executed on Ramos’s car and residence and police recovered a rust-colored towel from the car. Police also removed knives from the residence.

Defendant denied telling Brandi Hohman that he had killed Sharley Ann. He claimed she was lying to avoid being charged as an accessory to the Parr and Robertson murders and because he had ended his relationship with her and returned to Karen Dolan. He admitted talking to Theodore Grandstedt about the murder but denied telling Grandstedt he had committed it. He testified, however, that he had told both Hohman and Grandstedt about crimes he had not actually committed to impress them. Defendant also denied having told Robert Fulton or his wife, Marlene, that he had killed Sharley Ann. He claimed they were part of a conspiracy against him by the Freedom Riders that developed after the Parr murder. Finally, defendant testified that he came into possession of Sharley Ann’s car after her death because Geary loaned it to him.

Defendant acknowledged that he and Brandi Hohman had gone to a party at David Parr’s house attended by murder victim Herbert Parr, but he denied having any animosity toward Herbert Parr and claimed there was friction between Parr and Rex Sheffield, who was also at the party. Like Hohman, he testified that he invited Parr to Laurel Beiling’s house to continue the party and that at some point Sheffield and his wife arrived. He asserted that Sheffield was upset with Parr and wanted to beat him up because Parr claimed to know people he did not know. Defendant said he defended Parr. He testified that he, Parr, and Sheffield went to the backyard, where Parr began talking about a tattoo he claimed to have gotten in Vietnam. Sheffield then “snapped” and began stabbing Parr. Defendant started to leave but then returned and saw Parr was dead. He admitted helping to remove Parr’s body from Beiling’s residence, burying it, and renting a U-Haul truck for Parr’s motorcycle, which he dismantled.

Danny Payne, who had been in county jail with Sheffield, testified that Sheffield told him about two murders he had committed, one of them involving a person Sheffield shot and buried in a backyard.

Defendant testified that after the Parr murder, which occurred on August 14, 1987, he began to distance himself from the Freedom Riders. In September 1987, he met Michael Robertson, who had just been released from prison. Robertson became his best friend and acted as his go-between with the Freedom Riders, carrying messages back and forth. He and Robertson met with Rex Sheffield—who at this point was not a Freedom Rider—and resolved their differences. Defendant, however, remained wary of the Freedom Riders. On October 24, he returned a page from Greg Hosac, president of the Freedom Riders, who told defendant he had Karen Dolan and her (and defendant’s) children and wanted to talk to defendant. Defendant agreed to meet Hosac at J.W.’s bar in Mountain View.

Defendant went alone, but later both Michael Robertson and Rex Sheffield separately showed up at the bar. Defendant resolved his differences with Greg Hosac and then spoke to Sheffield. Defendant told Sheffield he had not told Robertson anything about Parr’s killing and burial. Sheffield said Robertson was “no good.” Nonetheless, the three men—defendant, Sheffield and Robertson—left the bar in Sheffield’s car to drive to Santa Cruz to buy drugs. On the way, the car stopped. Sheffield got out and looked under the hood. He returned to the car, took a gun from beneath the driver’s seat, and shot Robertson in the face. Defendant was shocked and “scared,” but he assisted Sheffield in moving the car out of the road and disposing of Robertson’s body.

Defendant denied telling Brandi Hohman to conceal his knife and clothes, and he denied telling her that Robertson had died more easily than Sharley Ann. The defense presented two witnesses who testified Hohman was promiscuous, a drug user, and a liar. Another defense witness portrayed Laurel Beiling as mentally unstable and untruthful, while still another testified Beiling told her defendant killed Parr but later recanted.

4. Rebuttal

Using phone records, the prosecution presented evidence that in the week up to and including April 10, 1986 (15 days before Sharley Ann German was murdered), a number of collect telephone calls were made from the East Coast to defendant’s home in San Jose, and that on April 10, a collect call was made from a public telephone at the San Francisco airport to defendant’s home (indicating that defendant may have returned from the East Coast on that date, and was hying to obtain transportation back to his home), but that no long distance calls from the East Coast were charged to defendant’s telephone after April 10. Karen O’Neal, who had been married to defendant’s friend John Mercuri, testified that defendant threatened to kill her and members of her family if she laid claim to any marital assets during the divorce proceedings. As a result, she signed away everything to Mercuri. Paul Doty worked as a night clerk at a Massachusetts motel where defendant and Karen Dolan were staying. The police arrived at the motel and took Dolan and their children, defendant not being present. Defendant called Doty and threatened to “blow [his] brains out” because he evidently believed Doty had informed the police of defendant’s whereabouts. John Acord, a police officer from defendant’s home town of Wrentham, testified to a 1979 incident during which defendant attempted to slash him with a knife, leading to defendant’s arrest and conviction for assault with a deadly weapon.

B. Penalty Phase

1. Prosecution Case

At the penalty phase, the prosecution primarily relied on evidence it had presented at the guilt phase: the circumstances of the charged crimes (see § 190.3, factor (a)) and other episodes involving defendant’s use of force or threat of force, including his threats to kill Karen O’Neal and members of her family, his attack on Christopher Walsh, and his threat to kill Paul Doty (id., factor (b)). The prosecution presented a certified copy of defendant’s 1979 felony conviction for assault with a deadly weapon on Officer Acord.

2. Defense Case

Defendant presented evidence of his religious conversion, his positive influence on other inmates while in custody, his harsh upbringing, and his addiction to drugs and alcohol, as well as expert testimony that he suffered from a form of fetal alcohol syndrome.

Reverend Lawrence Walsh, a jail chaplain, testified that defendant had become a “born again Christian,” with an understanding of his faith equivalent to a first-year Bible college student. Defendant, he said, had taken Bibles to other inmates and had been and would continue to be a positive influence on others. Father Jim Mifsud, a Catholic priest, described defendant as “probably the best prisoner” he had ever seen.

Seven law enforcement officers testified about defendant’s behavior while in custody in this case. They said that he had behaved well, respected staff and other inmates, and had not created any problems for staff. They predicted that he would continue to benefit the inmate population. A fellow inmate testified that defendant had a calming influence on the witness and other inmates. The program manager for education programs at the jail testified that defendant had earned his GED and high school diploma while in custody. James W. L. Park, a prison consultant, testified that a person sentenced to life without possibility of parole would be assigned to a level 4 or maximum security prison, which he described. He believed defendant would be a useful member of prison society.

Vincent Schiraldi (a social worker with expertise in criminal justice), Gail Stewart (defendant’s elder half sister), and Ellen Muzzy (the first wife of defendant’s father) testified about defendant’s family and upbringing. They portrayed defendant’s father as a violent man who physically abused his first wife, defendant, and defendant’s mother. As a result of his abuse, defendant’s mother became an alcoholic. Defendant’s father pushed defendant into playing hockey, lying about defendant’s age so he could play in a semiprofessional hockey league. When defendant was 14, he began to drink, with his father’s permission, and to come and go unsupervised. At 15, he dropped out of school and began to abuse drugs. When he was 18, he moved out of the family home and left for California.

Dr. Eugene Schoenfeld, a psychiatrist, testified that, based on his examination of defendant, he had found “evidence of a type of fetal alcohol syndrome” attributable to defendant’s mother’s drinking while pregnant with defendant. In Dr. Schoenfeld’s view, fetal alcohol syndrome might cause a person to become antisocial.

3. Prosecution Rebuttal

The prosecution called witnesses from Massachusetts who had known defendant and his family. They testified that defendant’s father was a kind-hearted person and that they never saw evidence of, nor did defendant ever complain about, his father’s violence.

II. Discussion

A. Severance Motion

Defendant contends the trial court’s denial of his motion to sever the three murder counts constituted an abuse of discretion under state law and also violated his federal constitutional right to due process. The claims lack merit.

1. Background

Defendant and Rex Sheffield were initially charged in the same information with the Herbert Parr and Michael Robertson murders, while defendant alone was charged with the murder of Sharley Ann German. Defendant and Sheffield each moved to sever their cases, and defendant sought separate trials on each of the three murder counts. At the hearing on the motion, defense counsel argued the three murders were unconnected by time, by motive, or by the method of killing, and that trying them together would prejudice defendant because the jury would be influenced to his detriment by the number of murder counts.

The trial court severed defendant’s case from Sheffield’s but denied defendant’s request to sever the murder counts. It reasoned that all of the counts were “of the same class,” that they were “related factually to some extent,” and that “in some respects the circumstances of each case [were] similar and some of the evidence of one count [was] cross-admissible and interwoven with the others.” The court stated: “The only real possibility of prejudice . . . would be from the jury adding up counts against a defendant and letting the evidence of one murder eliminate the possible reasonable doubt as to another . . . . [¶] But because of the jury instructions to the contrary and the fact that this Court will pre-instruct the jury as to adding up [s/c] each count separately without regard to the verdicts on the other counts, prejudice will be so diminished as to guarantee . . . defendant a fair and separate trial on all counts charged against him.”

Although the trial court did not preinstruct the jury regarding its obligation to decide each count separately, its closing charge included this instruction: “Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged. Your finding as to each count must be stated in a separate verdict.”

2. Discussion

“ ‘ “[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law.” ’ ” (People v. Capistrano (2014) 59 Cal.4th 830, 848 [176 Cal.Rptr.3d 27, 331 P.3d 201].) This preference is embodied in section 954, which states in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” Here, the three murders and the related charges (conspiracy to commit murder and robbery) are of the same class, because they are all “ ‘assaultive crimes against the person.’ ” (Capistrano, supra, at p. 848.) Thus, they were properly joined unless the defense made such a “ ‘clear showing of potential prejudice’ ” that the trial court’s denial of defendant’s severance motion amounted to an abuse of discretion. (People v. Vines (2011) 51 Cal.4th 830, 855 [124 Cal.Rptr.3d 830, 251 P.3d 943].)

In determining whether a trial court’s refusal to sever charges amounts to an abuse of discretion, we consider four factors: (1) whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case. (People v. Geier (2007) 41 Cal.4th 555, 575 [61 Cal.Rptr.3d 580, 161 P.3d 104].)

Defendant argues joinder was improper because the evidence of the three murders was not cross-admissible. Cross-admissibility is not, however, a precondition to joinder of charges. “[S]ection 954.1 expressly provides that ‘where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.’ (Italics added.) Thus, ‘cross-admissibility is not the sine qua non of joint trials.’ ” (People v. Geier, supra, 41 Cal.4th at p. 575.) While the presence of such evidence “ ‘is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges’ ” (People v. Merriman (2014) 60 Cal.4th 1, 38 [177 Cal.Rptr.3d 1, 332 P.3d 1187]), the absence of cross-admissible evidence does not bar joinder.

There was, in any event, significant cross-admissible evidence here. For example, Brandi Hohman testified that defendant compared the murder of Sharley Ann German with the Michael Robertson murder and told her Robertson had died more easily. This evidence would have been admissible at separate trials of defendant for each of these murders. Hohman also testified defendant told her that after killing Robertson he removed the boots Robertson was wearing, which defendant had loaned to him, because defendant had worn them when he killed Herbert Parr. This evidence would have been admissible at separate trials of the murders of Robertson and Parr. The three murders also involved a deeply interwoven cast of characters and web of circumstances: Defendant, the victims and the prosecution’s witnesses were all in some manner connected to the Freedom Riders and the subculture it represented. The events surrounding the crimes and the crimes themselves took place within the territory in which the club was active and within a time span that essentially paralleled defendant’s involvement with the club.

Moreover, defendant has not shown that he was prejudiced by joinder of the charged offenses. None of the charges was more inflammatory than the others. Defendant argues Sharley Ann was more sympathetic than the other two victims, asserting that, unlike Parr and Robertson, she had no criminal record and was not “entrenched in the ‘biker’ lifestyle and familiar with the violence that accompanied that lifestyle.” But there was no evidence that either Parr or Robertson was a hardcore biker. Parr emerges from the trial testimony as someone ridiculed by the Freedom Riders for his desperate desire to be taken seriously as a biker and Robertson, whatever his criminal past, as slavishly devoted to a man who deceived and killed him. Sharley Ann, who was married to a Freedom Rider and participated in the club’s activities, was certainly as “entrenched in the ‘biker’ lifestyle” as Parr and Robertson. Moreover, given her husband’s involvement in the Frank Ramos murder, she was “familiar with the violence that accompanied that lifestyle.” Accordingly, she was not necessarily a more sympathetic victim than Parr or Robertson.

Nor do we agree with defendant that the evidence that he murdered Sharley Ann was significantly weaker than the evidence of the other two murders. Defendant repeatedly told witnesses he had killed Sharley Ann, describing facts about the crime that the killer would know. Even if the Parr and Robertson cases were relatively stronger in that there was more evidence of defendant’s guilt besides his admissions, the evidence that he murdered Sharley Ann was not so weak that the jury would be unable to follow the instruction to consider the evidence as to each count separately. And given that the evidence of each murder charge was strong, we reject defendant’s claim that joinder was improper because this was a capital case. (People v. Ochoa (2001) 26 Cal.4th 398, 423 [110 Cal.Rptr.2d 324, 28 P.3d 78] [“Even where the People present capital charges, joinder is proper so long as evidence of each charge is so strong that consolidation is unlikely to affect the verdict.”].)

In short, the trial court, after evaluating the relevant factors, found no reason to depart from the statutory preference in favor of joinder of the murder charges. Because, for the reasons described above, defendant failed to make a clear showing of potential prejudice, the court did not abuse its discretion under state law when it denied defendant’s motion to sever the charges.

Defendant maintains that joinder, even if proper under state law, resulted in violation of his federal constitutional rights. In evaluating that claim, “we must . . . inquire whether events after the court’s ruling demonstrate that joinder actually resulted in ‘gross unfairness’ amounting to a denial of defendant’s constitutional right to fair trial or due process of law.” (People v. Merriman, supra, 60 Cal.4th at p. 46, italics omitted.) Here, defendant fails to point to any specific event or events that would demonstrate gross unfairness. He argues that the court failed to preinstruct the jury about its duty to consider each charge separately. This omission, however, does not demonstrate unfairness. As defendant concedes, the jury was so instructed at the end of the guilt trial and before it began its deliberations, and defense counsel reiterated the point in his closing argument to the jury. “We presume the jury understood and followed the instruction.” (People v. Homick (2012) 55 Cal.4th 816, 873 [150 Cal.Rptr.3d 1, 289 P.3d 791].)

Defendant also asserts the trial court’s instruction was insufficient to prevent the jury from using evidence of one murder to find he had a predisposition to commit the other murders, likening this case to Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073. In Bean, the trial court denied the defendant’s motion to sever two counts of murder, each involving a residential robbery during which the defendant allegedly murdered a female victim. The evidence of the defendant’s participation in the first murder was significantly stronger than his participation in the second murder and, even though the evidence was not cross-admissible, the prosecutor argued the modus operandi for both was the same, thus “repeatedly encouraging] the jury to consider the two sets of charges in concert.” (Bean, supra, 163 F.3d at p. 1084.) Emphasizing the weakness of the evidence of the second murder as compared to the first, the lack of cross-admissible evidence, and the prosecutor’s modus operandi argument, the Ninth Circuit concluded that joinder of the charges violated the defendant’s due process rights. (Id. at pp. 1085-1086.) Given those circumstances, it rejected as inadequate the instruction directing the jury to consider the evidence of each count separately. (Id. at p. 1084.)

Here, by contrast, there was no joinder of a weak case to a strong case and there was cross-admissible evidence. Although the prosecutor briefly noted in his closing argument the similarities in the manner in which Robertson and Sharley Ann were killed, he made no serious attempt to persuade the jury that these similarities demonstrated defendant’s guilt of the two crimes, nor did he suggest any similarity between those crimes and the murder of Parr. And the jury’s acquittal of defendant on the charge that he conspired to murder Parr provides an additional indication of its ability to consider the evidence of each charge separately. Thus, he “has not met his high burden of establishing that the trial was grossly unfair and that he was denied due process of law.” (People v. Soper (2009) 45 Cal.4th 759, 783 [89 Cal.Rptr.3d 188, 200 P.3d 816].)

B. Jury Issues

1. Wheeler/Batson Moiion

Defendant contends, as he did at trial, that the prosecutor improperly exercised two racially based peremptory challenges against African-American prospective jurors, in violation of People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson). We disagree/

a. Background

Voir dire of the prospective jurors began on March 19, 1991. Over the course of the voir dire, 163 prospective jurors were questioned.

Defendant’s challenge focuses on Prospective Jurors D.C. and R.A., both African-American men. In his juror questionnaire, D.C. noted his father had been a police officer in Louisiana from the 1960s to the 1980s. In response to question No. 47, which asked about favorable or unfavorable experiences with law enforcement, he wrote “Ticket for expired liscence [Vc] tags. 1 day expired].” Question No. 55(J) asked whether the prospective juror strongly or somewhat agreed, was neutral, or strongly or somewhat disagreed with the statement: “I think that I would require that the prosecution prove its case not only beyond a reasonable doubt, as the law requires, but beyond all possible doubt and to an absolute certainty before I would convict anyone of a serious crime.” D.C. checked the line for “Somewhat agree.” Question No. 58(B) asked whether the prospective juror strongly or somewhat agreed, was neutral, or strongly or somewhat disagreed with the statement: “If someone brags about doing something wrong, he should be punished—whether or not he actually did it.” D.C. checked the “Strongly disagree” line. In the space provided for an additional explanation, he wrote: “Someone could be joking around[.] [H]ow do you know if they are telling the truth.”

D.C. was voir dired on April 4. The prosecutor asked if he held any grudges because he was ticketed for his expired license plate one day after the registration expired. D.C. said he did not, explaining: “It was my fault. I was one day—I was late.” The prosecutor inquired whether anything about his father’s career in law enforcement would make him “tend to gravitate toward one side or the other,” to which he responded, “No, there isn’t.” The prosecutor also asked a number of other questions about his ability to be an impartial juror.

As to Prospective Juror R.A., in his juror questionnaire he checked “Strongly agree” on question No. 55(J), which asked whether the prospective juror would require more than proof beyond a reasonable doubt to convict. With respect to personal information, R.A. indicated in response to question No. 11 that, although his son lived with him, he did not know what educational level his son had completed or his occupation, if any. For hobbies, he wrote: “My hobby is amateur magic.” R.A. had also been a state capitol police officer in Pennsylvania for two years.

R.A. was voir dired on April 3. In response to a question from the trial court about whether, if defendant was convicted, he could consider both fife without the possibility of parole and death, R.A. answered, “Yes, but I would have to be convinced pretty well,” presumably before voting for death. He went on to say, however, that he would not automatically vote for one penalty over another. During his questioning of R.A., the prosecutor focused on R.A.’s understanding of the burden of proof. With respect to R.A.’s response to question No. 55(J), which indicated he strongly agreed that the prosecutor would have to prove its case beyond all possible doubt, the prosecutor asked: “You recognize that that would mean that your personal standard is higher than the law requires?” R.A. answered, “No. But I just wouldn’t want to have any doubt in my mind.” The prosecutor read him the reasonable doubt instruction and said, “We’re not talking about being convinced beyond all possible doubt. [¶] Do you see that difference?” R.A. responded, “I see the difference, but still I just have to feel satisfied with myself that—” The prosecutor broke in, saying, “Okay. And that’s understandable,” but asked if R.A. could follow the law. He answered, “Well, I would be inclined to feel that I need to feel the certainty within myself, you know.”

The trial court resumed questioning. To illustrate the reasonable doubt standard, it gave the example of R.A. putting his garbage out on the night before collection and returning from work to find it gone, and suggested that in this scenario there would be no reasonable doubt the garbage collectors had collected it even though it was also possible the garbage can had been knocked over and the garbage eaten by a “pack of wild dogs.” The court asked, “Does that help you out at all?” R.A. replied, “Sure.” The prosecutor concluded his voir dire by asking some additional questions about R.A.’s ability to be impartial.

On April 29, selection of the 12 jurors and four alternates began. Twelve prospective jurors were called to the jury box and the parties were permitted to exercise peremptory challenges. D.C. was among the first 12 prospective jurors. The prosecutor used his first peremptory challenge to excuse D.C. Both sides exercised additional peremptory challenges and additional prospective jurors were seated to replace those who had been excused. The prosecutor used his 15th peremptory challenge to excuse R.A. At that point, defense counsel asked for a sidebar conference to “put on the record that the district attorney has excused the second and only remaining black juror from the panel.” He continued, “the defendant is denied a representative cross-section. Those were the only two black jurors in the panel out of the four panels called from this entire area. They both have been eliminated by peremptories.” The prosecutor replied: “Your Honor, I would be more than happy to respond as to the reasons, but I don’t think that it would be appropriate to do it here.” He asked for an in camera conference. The trial court denied his request and directed him to proceed.

The prosecutor prefaced his remarks with the observation, “I think that it’s interesting [defendant] is objecting is that [s/c] the People have excluded the two black jurors and the People are conscientiously [«'c] discriminating against a particular class. [¶] I think [defendant] has been involved in white supremacy. If anything, he would like not to have black members on this particular jury.”

Regarding D.C., the prosecutor said, “[H]e is a 33-year-old black male, married, three kids, renting. [¶] There were answers in his questionnaire that talked about that his father was a police officer back in the 60’s. However, he recalled and spoke of the prejudice. He mentioned the license tag and so on. [¶] But primarily there was a question which asked how he felt about if somebody bragged about something, whether they could be punished— whether or not they actually did it. He put down in response to that, in effect, that a bragger could simply be joking about something. [¶] [Defendant’s] defense in this particular case is that his confessing to all three murders is that he was only bragging, he was not actually telling the truth about what it was he was confessing to. And I didn’t like the answer in terms of a bragger could be joking. [¶] In connection with the demographics in connection with some other answers, 55-J, he was talking about strongly agreeing . . . proof should be more than beyond a reasonable doubt, to an absolute certainty.”

The court then asked about R.A. The prosecutor said: “[R.A.] is a 59-year-old black male, divorced with two kids, he rents. As I indicated, the other juror is a renter. [¶] In terms of the demographics with not owning a home, and answer 11 on the questionnaire, the question about his children, and it was something in the answer indicating that lack of knowledge or something about certain circumstances regarding his children. [¶] [R.A.], for what it’s worth, had a hobby as an amateur magician, which, in any event, I don’t like the situation of one of the potential jurors being involved in magic, sleight-of-hand. [¶] He also indicated in terms of the burden of proof involved, a phrase during the voir dire where he said, ‘I’d have to be convinced pretty well,’ and my feeling from that was, the context of which it was said . . . something about the way that he said it in connection with the questioning that he believed that he may require burden of proof over and above what the law required. [¶] As far as the death penalty was concerned— and I had another note down here. My impression was he wanted more than proof beyond a reasonable doubt. [¶] In terms of the death penalty he was somewhat equivocal. As I recall, I summarized rather than giving him a rating on the death penalty how he felt. He was not sure of his feelings, except that he was ambivalent about that. [¶] And quite frankly, I would like people a little bit more, in this particular case, more indicative one way or the other how they feel about it rather than a question mark, that can’t indicate how they feel about it.”

At the conclusion of the prosecutor’s presentation, the trial court ruled: “The court finds that the People are not intentionally excluding one class of people, and the People’s reasons for exercising the peremptory challenges are valid reasons.”

b. Discussion

“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.” (People v. Lenix (2008) 44 Cal.4th 602, 612 [80 Cal.Rptr.3d 98, 187 P.3d 946].)

“A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution’s offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] ‘The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 75 [165 Cal.Rptr.3d 1, 314 P.3d 1].)

Here, the trial court did not determine whether a prima facie case had been established. Instead, after the prosecutor gave his reasons for excusing the prospective jurors, the court found those reasons to be credible and ruled that the defense had not demonstrated that they were based on race. Because the court never decided whether defendant had made a prima facie showing that the challenges were impermissible, the Attorney General correctly acknowledges that the question whether he did so is moot. (See People v. Scott (2015) 61 Cal.4th 363, 387, fn. 1 [188 Cal.Rptr.3d 328, 349 P.3d 1028] [“When a trial court solicits an explanation of the strike without first declaring its views on the first stage, we infer an ‘implied prima facie finding’ of discrimination and proceed directly to review of the ultimate question of purposeful discrimination.”]; People v. Williams (2013) 58 Cal.4th 197, 280-281 [165 Cal.Rptr.3d 717, 315 P.3d 1].) Thus, the sole question before us is whether the trial court correctly ruled that the defense did not satisfy its burden of demonstrating discriminatory motivation at the third stage of the Batson inquiry.

The prosecutor’s “ ‘justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (People v. Lenix, supra, 44 Cal.4th at p. 613.) “The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. ... All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.” (People v. Reynoso (2003) 31 Cal.4th 903, 924 [3 Cal.Rptr.3d 769, 74 P.3d 852].)

“ ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation], We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ ” (People v. Lomax (2010) 49 Cal.4th 530, 571 [112 Cal.Rptr.3d 96, 234 P.3d 377].)

Also relevant here, in light of defendant’s appellate arguments, are principles pertaining to comparative juror analysis, which, on a claim of race-based peremptory challenges, compares the voir dire responses of the challenged prospective jurors with those of similar jurors who were not members of the challenged jurors’ racial group, whom the prosecutor did not challenge. (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [162 L.Ed.2d 196, 125 S.Ct. 2317] (Miller-El) [“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.”].) “[Comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” (People v. Lenix, supra, 44 Cal.4th at p. 622.) Where, as here, the comparative analysis was not made at trial, ‘“the prosecutor generally has not provided, and was not asked to provide, an explanation for nonchallenges.” (People v. Jones (2011) 51 Cal.4th 346, 365 [121 Cal.Rptr.3d 1, 247 P.3d 82].) Therefore, ‘“an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable.” (Snyder v. Louisiana (2008) 552 U.S. 472, 483 [170 L.Ed.2d 175, 128 S.Ct. 1203].) W