Is a defendant permitted to stipulate to the dismissal of a jury in a death penalty case?

Defendant contends that the stipulations are inconsequential. He observes that at the time of his trial, an objection was not necessary to preserve this sort of claim of error. (See People v. McKinnon (2011) 52 Cal.4th 610, 637-643, 130 Cal.Rptr.3d 590, 259 P.3d 1186.) In this case, he continues, the trial court itself identified jurors about which it was concerned rather than leaving that task to the parties. Thus, defendant argues, the stipulations here were effectively

[245 Cal.Rptr.3d 40]

mere failures to object to the court's anticipated rulings, and his claim is cognizable on appeal.

[6 Cal.5th 1053]

This argument is not persuasive. To be sure, it appears that the trial court's doubts about whether certain jurors could fairly consider imposing the death penalty prompted it to inquire whether the parties would stipulate to those jurors being excused. What matters, however, is not why defendant's counsel voluntarily stipulated to the dismissals nor how the court might have ruled in the absence of stipulations; it is that the dismissals were made by stipulation. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1061, 5 Cal.Rptr.2d 230, 824 P.2d 1277 ["Because of the stipulation, the trial court was not called upon to decide whether these prospective jurors could properly be excused for cause"]; cf. Booker , supra , 51 Cal.4th at p. 161, 119 Cal.Rptr.3d 722, 245 P.3d 366 [stipulation effective even when "the discussion between the trial court and the parties focused on the prospective jurors' opinions about the death penalty, and those expressed opinions formed the basis for the parties' decisions regarding whether to stipulate to the dismissal"].) Accordingly, we reject defendant's challenge to the dismissal of these prospective jurors.