Witherspoon standard in California

2006(Compare People v. Hill (1992) 3 Cal.4th 959, 1005 [ 13 Cal.Rptr.2d 475 , *1008 839 P.2d 984 ] [holding defendant “waived any error” by “failing to object to the prosecutor’s challenges”], with People v. Holt (1997) 15 Cal.4th 619, 652, fn. 4 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ] [stating “controlling federal precedent holds that Witherspoon error is not waived by ‘mere’ failure to object”]; see Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].) “Because the question whether defendants have preserved their right to raise this issue on appeal is close and difficult

2006(Compare People v. Hill (1992) 3 Cal.4th 959, 1005 [ 13 Cal.Rptr.2d 475 , *1008 839 P.2d 984 ] [holding defendant “waived any error” by “failing to object to the prosecutor’s challenges”], with People v. Holt (1997) 15 Cal.4th 619, 652, fn. 4 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ] [stating “controlling federal precedent holds that Witherspoon error is not waived by ‘mere’ failure to object”]; see Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].) “Because the question whether defendants have preserved their right to raise this issue on appeal is close and difficult

2005(Wainwright v. Witt (1985) 469 U.S. 412, 424 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ] (Witt) [clarifying the Witherspoon standard].) 13 Depending upon the answers given either orally or in writing, the trial court often asked follow-up questions about the person’s views on capital punishment.

2005(Wainwright v. Witt (1985) 469 U.S. 412, 424 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ] (Witt) [clarifying the Witherspoon standard].) 13 Depending upon the answers given either orally or in writing, the trial court often asked follow-up questions about the person’s views on capital punishment.

1990Do you still remember your admonishment?" Kelly: "Who?" Cornejo: "Remember I read you your rights?" Kelly: "Yeah." Cornejo: "Having those rights in mind, do you still want to talk to us?" Kelly: "I'll talk." [4] In view of defendant's failure to exhaust his peremptory challenges, and the jurors' affirmance that they would impartially consider both sentencing options, we need not address defendant's additional claim that the trial court erroneously applied the more stringent Witherspoon standard ( Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ] [whether the juror

1990Do you still remember your admonishment?" Kelly: "Who?" Cornejo: "Remember I read you your rights?" Kelly: "Yeah." Cornejo: "Having those rights in mind, do you still want to talk to us?" Kelly: "I'll talk." [4] In view of defendant's failure to exhaust his peremptory challenges, and the jurors' affirmance that they would impartially consider both sentencing options, we need not address defendant's additional claim that the trial court erroneously applied the more stringent Witherspoon standard ( Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ] [whether the juror

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

2007(People v. Schmeck (2005) 37 Cal.4th 240, 262 [ 33 Cal.Rptr.3d 397 , 118 P.3d 451 ] (Schmeck); People v. Velasquez (1980) 26 Cal.3d 425, 443 [ 162 Cal.Rptr. 306 , 606 P.2d 341 ].) In addition, codefense counsel’s challenge for cause alerted the trial judge to the possibility of Witt/Witherspoon error as to P.G.

2007(People v. Schmeck (2005) 37 Cal.4th 240, 262 [ 33 Cal.Rptr.3d 397 , 118 P.3d 451 ] (Schmeck); People v. Velasquez (1980) 26 Cal.3d 425, 443 [ 162 Cal.Rptr. 306 , 606 P.2d 341 ].) In addition, codefense counsel’s challenge for cause alerted the trial judge to the possibility of Witt/Witherspoon error as to P.G.

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

1990(See, e.g., People v. Velasquez (1980) 26 Cal.3d 425 [ 162 Cal. Rptr. 306 , 606 P.2d 341 ].) In Wainwright v. Witt, supra, 469 U.S. 412 , the court rejected the Witherspoon test in favor of the one originally set out in Adams v. Texas, supra, 448 U.S. at page 45 [65 L.Ed.2d at pages 589-590].

1990(See, e.g., People v. Velasquez (1980) 26 Cal.3d 425 [ 162 Cal. Rptr. 306 , 606 P.2d 341 ].) In Wainwright v. Witt, supra, 469 U.S. 412 , the court rejected the Witherspoon test in favor of the one originally set out in Adams v. Texas, supra, 448 U.S. at page 45 [65 L.Ed.2d at pages 589-590].

1970(See Witherspoon v. Illinois, supra, 391 U.S. 510, 522 , in. 21.) Until the recent decision in People v. Floyd, 1 Cal.3d 694, 726 [ 83 Cal.Rptr. 608 , 464 P.2d 64 ], written by Mr. Justice Burke, this court had never held that a statement of opposition to the death penalty that is hedged by equivocal words such as “think” or “believe” satisfies the Witherspoon requirement of an unambiguous expression of automatic opposition to the death penalty.

1970(See Witherspoon v. Illinois, supra, 391 U.S. 510, 522 , in. 21.) Until the recent decision in People v. Floyd, 1 Cal.3d 694, 726 [ 83 Cal.Rptr. 608 , 464 P.2d 64 ], written by Mr. Justice Burke, this court had never held that a statement of opposition to the death penalty that is hedged by equivocal words such as “think” or “believe” satisfies the Witherspoon requirement of an unambiguous expression of automatic opposition to the death penalty.

2011(People v. Schmeck (2005) 37 Cal.4th 240, 264 [ 33 Cal.Rptr.3d 397 , 118 P.3d 451 ]; see People v. Tate (2010) 49 Cal.4th 635, 666-667 [ 112 Cal.Rptr.3d 156 , 234 P.3d 428 ] [Witt/Witherspoon error does not compel reversal of guilt phase verdict].) Jury selection in this case started with a large group of prospective jurors, some of whom were dismissed immediately due to hardship caused by jury service.

2011(People v. Schmeck (2005) 37 Cal.4th 240, 264 [ 33 Cal.Rptr.3d 397 , 118 P.3d 451 ]; see People v. Tate (2010) 49 Cal.4th 635, 666-667 [ 112 Cal.Rptr.3d 156 , 234 P.3d 428 ] [Witt/Witherspoon error does not compel reversal of guilt phase verdict].) Jury selection in this case started with a large group of prospective jurors, some of whom were dismissed immediately due to hardship caused by jury service.

1991As he recognizes, however, the high court substantially modified the Witherspoon test and established a more lenient standard for excusing jurors for cause in a capital case. ( Wainwright v. Witt (1985) 469 U.S. 412 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ].) Witt requires that the trial court determine "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" ( Id. at p. 424 [83 L.Ed.2d at pp. 851-852].) "Under Witt , therefore, our duty is to `examine the context surrounding [the juror's] exclusion

1991As he recognizes, however, the high court substantially modified the Witherspoon test and established a more lenient standard for excusing jurors for cause in a capital case. ( Wainwright v. Witt (1985) 469 U.S. 412 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ].) Witt requires that the trial court determine "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" ( Id. at p. 424 [83 L.Ed.2d at pp. 851-852].) "Under Witt , therefore, our duty is to `examine the context surrounding [the juror's] exclusion

1983(See People v. Velasquez, supra, 26 Cal.3d 425, 440, fn. 11 ; People v. Vaughn, supra, 71 Cal.2d 406, 413 ; People v. O'Brien (1969) 71 Cal.2d 394 , 404-405 [ 79 Cal. Rptr. 313 , 456 P.2d 969 ]; People v. Risenhoover, supra, 70 Cal.2d 39, 55-56 .) The tenor of those decisions is that a juror's view of other cases is largely irrelevant to the Witherspoon standard because such views would not make it unmistakably clear whether the juror would automatically vote against death in the case to be tried.

1983(See People v. Velasquez, supra, 26 Cal.3d 425, 440, fn. 11 ; People v. Vaughn, supra, 71 Cal.2d 406, 413 ; People v. O'Brien (1969) 71 Cal.2d 394 , 404-405 [ 79 Cal. Rptr. 313 , 456 P.2d 969 ]; People v. Risenhoover, supra, 70 Cal.2d 39, 55-56 .) The tenor of those decisions is that a juror's view of other cases is largely irrelevant to the Witherspoon standard because such views would not make it unmistakably clear whether the juror would automatically vote against death in the case to be tried.

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

2011(Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267 ; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant’s failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had

1970This court repeatedly has expressly held that the response "I don't think" does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances ( In re Hillery, 71 Cal.2d 857, 863 [ 79 Cal. Rptr. 733 , 457 P.2d 565 ]; People v. Osuna, 70 Cal.2d 759, 768 [ 76 Cal. Rptr. 462 , 452 P.2d 678 ]; People v. Chacon, 69 Cal.2d 765, 772-773 [ 73 Cal. Rptr. 10 , 447 P.2d 106 ]), and I cannot understand how the phrase "I don't believe" is any more clear than the phrase "I don't think." Indeed, this court has never explicit

1970This court repeatedly has expressly held that the response "I don't think" does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances ( In re Hillery, 71 Cal.2d 857, 863 [ 79 Cal. Rptr. 733 , 457 P.2d 565 ]; People v. Osuna, 70 Cal.2d 759, 768 [ 76 Cal. Rptr. 462 , 452 P.2d 678 ]; People v. Chacon, 69 Cal.2d 765, 772-773 [ 73 Cal. Rptr. 10 , 447 P.2d 106 ]), and I cannot understand how the phrase "I don't believe" is any more clear than the phrase "I don't think." Indeed, this court has never explicit

1970This court repeatedly has expressly held that the response "I don't think" does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances ( In re Hillery, 71 Cal.2d 857, 863 [ 79 Cal. Rptr. 733 , 457 P.2d 565 ]; People v. Osuna, 70 Cal.2d 759, 768 [ 76 Cal. Rptr. 462 , 452 P.2d 678 ]; People v. Chacon, 69 Cal.2d 765, 772-773 [ 73 Cal. Rptr. 10 , 447 P.2d 106 ]), and I cannot understand how the phrase "I don't believe" is any more clear than the phrase "I don't think." Indeed, this court has never explicit

1970This court repeatedly has expressly held that the response "I don't think" does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances ( In re Hillery, 71 Cal.2d 857, 863 [ 79 Cal. Rptr. 733 , 457 P.2d 565 ]; People v. Osuna, 70 Cal.2d 759, 768 [ 76 Cal. Rptr. 462 , 452 P.2d 678 ]; People v. Chacon, 69 Cal.2d 765, 772-773 [ 73 Cal. Rptr. 10 , 447 P.2d 106 ]), and I cannot understand how the phrase "I don't believe" is any more clear than the phrase "I don't think." Indeed, this court has never explicit

1980It's plenty clear to me," suggests that any formal objection would have been futile. [14] (7) Witherspoon error requires reversal of a death sentence without proof of prejudice. ( Davis v. Georgia (1976) 429 U.S. 122 [ 50 L.Ed.2d 339 , 97 S.Ct. 399 ]; In re Seiterle, supra, 71 Cal.2d 698, 702 ; In re Arguello (1969) 71 Cal.2d 13, 15-16 [ 76 Cal. Rptr. 633 , 452 P.2d 921 ]; In re Anderson, supra, 69 Cal.2d 613, 618-620 .) The same rule arises by implication from the many decisions, including Witherspoon itself, which reverse a death penalty for erroneous exclusion of a juror without discussion

1980It's plenty clear to me," suggests that any formal objection would have been futile. [14] (7) Witherspoon error requires reversal of a death sentence without proof of prejudice. ( Davis v. Georgia (1976) 429 U.S. 122 [ 50 L.Ed.2d 339 , 97 S.Ct. 399 ]; In re Seiterle, supra, 71 Cal.2d 698, 702 ; In re Arguello (1969) 71 Cal.2d 13, 15-16 [ 76 Cal. Rptr. 633 , 452 P.2d 921 ]; In re Anderson, supra, 69 Cal.2d 613, 618-620 .) The same rule arises by implication from the many decisions, including Witherspoon itself, which reverse a death penalty for erroneous exclusion of a juror without discussion

1969The court stated that it could not conclude "either on the basis of the record now before us or as matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." ( Id., 391 U.S. at p. 518 [ 20 L.Ed.2d at p. 782 ].) (Accord, Bumper v. North Carolina, 391 U.S. 543, 545 [ 20 L.Ed.2d 797, 800 , 88 S.Ct. 1788 ].) We have rejected such contentions on numerous occasions, for example in People v. Beivelman, 70 Cal.2d 60, 78-80 [ 73 Cal. Rptr. 521 , 447 P.2d. 913 ] [all e

1969The court stated that it could not conclude "either on the basis of the record now before us or as matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." ( Id., 391 U.S. at p. 518 [ 20 L.Ed.2d at p. 782 ].) (Accord, Bumper v. North Carolina, 391 U.S. 543, 545 [ 20 L.Ed.2d 797, 800 , 88 S.Ct. 1788 ].) We have rejected such contentions on numerous occasions, for example in People v. Beivelman, 70 Cal.2d 60, 78-80 [ 73 Cal. Rptr. 521 , 447 P.2d. 913 ] [all e

1969The court stated that it could not conclude "either on the basis of the record now before us or as matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." ( Id., 391 U.S. at p. 518 [ 20 L.Ed.2d at p. 782 ].) (Accord, Bumper v. North Carolina, 391 U.S. 543, 545 [ 20 L.Ed.2d 797, 800 , 88 S.Ct. 1788 ].) We have rejected such contentions on numerous occasions, for example in People v. Beivelman, 70 Cal.2d 60, 78-80 [ 73 Cal. Rptr. 521 , 447 P.2d. 913 ] [all e

1969The court stated that it could not conclude "either on the basis of the record now before us or as matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." ( Id., 391 U.S. at p. 518 [ 20 L.Ed.2d at p. 782 ].) (Accord, Bumper v. North Carolina, 391 U.S. 543, 545 [ 20 L.Ed.2d 797, 800 , 88 S.Ct. 1788 ].) We have rejected such contentions on numerous occasions, for example in People v. Beivelman, 70 Cal.2d 60, 78-80 [ 73 Cal. Rptr. 521 , 447 P.2d. 913 ] [all e

1997California v. Velasquez (1980) 448 U.S. 903 [ 100 S.Ct. 3042 , 65 L.Ed.2d 1132 ] for further consideration in light of Adams v. Texas, supra, 448 U.S. 38 , reiterated in its entirety (1980) 28 Cal.3d 461 [ 171 Cal.Rptr. 507 , 622 P.2d 952 ].

1991Without error, of course, there can be no prejudice. 13 True, in People v. Velasquez, supra, 28 Cal.3d 461, 462 (per curiam), we stated that Adams did not “alter” a finding of Witherspoon error that we had made in People v. Velasquez, supra, 26 Cal.3d 425 , which sub nomine California v. Velasquez, supra, 448 U.S. 903 , the United States Supreme Court subsequently vacated and remanded for further consideration in light of Adams.

1990For example, in People v. Fields (1983) 35 Cal.3d 329 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ], we concluded "that a court may properly excuse [for cause] a prospective juror who would automatically vote against the death penalty in the case before him, regardless of his willingness to consider the death penalty in other cases." ( Id. at pp. 357-358, italics added; accord, People v. Hamilton (1989) 48 Cal.3d 1142, 1166 [ 259 Cal. Rptr. 701 , 774 P.2d 730 ] [maj. opn. of Eagleson, J.].) A footnote in Fields may be construed as restricting this conclusion by suggesting that during the death qualifi

1990For example, in People v. Fields (1983) 35 Cal.3d 329 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ], we concluded "that a court may properly excuse [for cause] a prospective juror who would automatically vote against the death penalty in the case before him, regardless of his willingness to consider the death penalty in other cases." ( Id. at pp. 357-358, italics added; accord, People v. Hamilton (1989) 48 Cal.3d 1142, 1166 [ 259 Cal. Rptr. 701 , 774 P.2d 730 ] [maj. opn. of Eagleson, J.].) A footnote in Fields may be construed as restricting this conclusion by suggesting that during the death qualifi

1985In People v. Williams (1970) 71 Cal.2d 614 [ 79 Cal. Rptr. 65 , 456 P.2d 633 ], we concluded that "we must regard with considerable suspicion and disfavor any exclusion of a juror — where the voir dire examination was subsequent to the Witherspoon decision — which is not based on a question phrased in the terms Witherspoon so unmistakably suggests." (P. 634.) In People v. Lanphear (1980) 26 Cal.3d 814 [ 163 Cal. Rptr. 601 , 608 P.2d 689 ] ( Lanphear I ), we affirmed that any ambiguity in a question posed on the Witherspoon issue might rob the answer of the unmistakable clarity necessary to uph

1985In People v. Williams (1970) 71 Cal.2d 614 [ 79 Cal. Rptr. 65 , 456 P.2d 633 ], we concluded that "we must regard with considerable suspicion and disfavor any exclusion of a juror — where the voir dire examination was subsequent to the Witherspoon decision — which is not based on a question phrased in the terms Witherspoon so unmistakably suggests." (P. 634.) In People v. Lanphear (1980) 26 Cal.3d 814 [ 163 Cal. Rptr. 601 , 608 P.2d 689 ] ( Lanphear I ), we affirmed that any ambiguity in a question posed on the Witherspoon issue might rob the answer of the unmistakable clarity necessary to uph

1980"Shortly after Witherspoon , the United States Supreme Court reversed and remanded two cases in which the Witherspoon error was raised neither at trial nor on appeal. ( Maxwell v. Bishop (1970) 398 U.S. 262 [ 26 L.Ed.2d 221 , 90 S.Ct. 1578 ]; Boulden v. Holman (1969) 394 U.S. 478 [ 22 L.Ed.2d 433 , 89 S.Ct. 1138 ].) The court then granted certiorari in State v. Wigglesworth (1969) 18 Ohio St.2d 171 [47 Ohio Ops.2d 388, 248 N.E.2d 607 ], in which the Ohio Supreme Court had held the defendant waived Witherspoon error (see 248 N.E.2d at pp. 613-614), and reversed per curiam, citing Witherspoon, M

1980"Shortly after Witherspoon , the United States Supreme Court reversed and remanded two cases in which the Witherspoon error was raised neither at trial nor on appeal. ( Maxwell v. Bishop (1970) 398 U.S. 262 [ 26 L.Ed.2d 221 , 90 S.Ct. 1578 ]; Boulden v. Holman (1969) 394 U.S. 478 [ 22 L.Ed.2d 433 , 89 S.Ct. 1138 ].) The court then granted certiorari in State v. Wigglesworth (1969) 18 Ohio St.2d 171 [47 Ohio Ops.2d 388, 248 N.E.2d 607 ], in which the Ohio Supreme Court had held the defendant waived Witherspoon error (see 248 N.E.2d at pp. 613-614), and reversed per curiam, citing Witherspoon, M

1970This court repeatedly has expressly held that the response "I don't think" does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances ( In re Hillery, 71 Cal.2d 857, 863 [ 79 Cal. Rptr. 733 , 457 P.2d 565 ]; People v. Osuna, 70 Cal.2d 759, 768 [ 76 Cal. Rptr. 462 , 452 P.2d 678 ]; People v. Chacon, 69 Cal.2d 765, 772-773 [ 73 Cal. Rptr. 10 , 447 P.2d 106 ]), and I cannot understand how the phrase "I don't believe" is any more clear than the phrase "I don't think." Indeed, this court has never explicit

1970This court repeatedly has expressly held that the response "I don't think" does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances ( In re Hillery, 71 Cal.2d 857, 863 [ 79 Cal. Rptr. 733 , 457 P.2d 565 ]; People v. Osuna, 70 Cal.2d 759, 768 [ 76 Cal. Rptr. 462 , 452 P.2d 678 ]; People v. Chacon, 69 Cal.2d 765, 772-773 [ 73 Cal. Rptr. 10 , 447 P.2d 106 ]), and I cannot understand how the phrase "I don't believe" is any more clear than the phrase "I don't think." Indeed, this court has never explicit

2025(People v. Stowell (2003) 31 Cal.4th 1107, 1114 ; see also People v. Giordano (2007) 42 Cal.4th 644, 666 (Giordano) [holding that to overcome this presumption of correctness, “ ‘ “error must be affirmatively shown” ’ ”].) These general rules “concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues.” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 ; People v. Coleman (2024) 98 Cal.App.5th 709 , 724 (Coleman) [declining to remand matter for resentencing on grounds that 5 Because we decline to apply forfeiture and will reach the merits of Withe

2025(People v. Stowell (2003) 31 Cal.4th 1107, 1114 ; see also People v. Giordano (2007) 42 Cal.4th 644, 666 (Giordano) [holding that to overcome this presumption of correctness, “ ‘ “error must be affirmatively shown” ’ ”].) These general rules “concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues.” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 ; People v. Coleman (2024) 98 Cal.App.5th 709 , 724 (Coleman) [declining to remand matter for resentencing on grounds that 5 Because we decline to apply forfeiture and will reach the merits of Withe