Filed 2/18/98
IN THE SUPREME COURT OF CALIFORNIA
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v. )
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MODIFICATION OF OPINION
The opinion herein, filed on December 22, 1997, appearing at 16 Cal.4th 1223, is modified as follows:
1. The paragraph beginning at the bottom of page 1238 and ending at the top of page 1239 is revised to read as follows:
As we recently explained, "To preserve a claim of trial court error in failing to remove a juror for bias in favor of the death penalty, a defendant must either exhaust all peremptory challenges and express dissatisfaction with the jury ultimately selected or justify the failure to do so." (People v. Williams (1997) 16 Cal.4th 635, 666; see also People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005; People v. Morris (1991) 53 Cal.3d 152, 184; People v. Bittaker (1989) 48 Cal.3d 1046, 1087.) Defendant argues that here his failure to exercise all of his peremptory challenges was justified. He asserts that, when he accepted the jury, the jury panel from which the clerk was selecting prospective jurors included three persons whom defendant had unsuccessfully challenged for cause, two of whom he had challenged during both general voir dire and Hovey voir dire. (Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 [requiring individual, sequestered examination of jurors’ attitudes about the death penalty].) He points out that, if he had exhausted his peremptory challenges and excluded Wood and Foster, "there was a clear possibility of having empaneled at least one juror, and possibly two, who had been challenged at both sessions." We do not, however, accept such after-the-fact justifications for a defendant’s failure to exercise all peremptory challenges when, as here, the defendant offered no such justification at trial.
2. The third sentence of the paragraph beginning on the bottom of page 1243 and ending on the top of page 1244 is revised to read:
Nevertheless, defendant’s guilty plea and other admissions enabled him to prevent the jury from seeing or hearing about many of the notes he wrote to Szymkiewicz, because the trial court ruled that these notes, which would have been admissible at the guilt phase of trial to show consciousness of guilt, should be excluded from the penalty phase.
3. The fifth sentence of the paragraph beginning on the bottom of page 1243 and ending on the top of page 1244 is revised to read:
We merely conclude that in this case defendant’s guilty plea enabled him to prevent the jury from learning of these notes, and in that sense it was tactically reasonable.
These modifications do not affect the judgment.