P. v. Briggs
Filed 6/15/06 P. v. Briggs CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. AVERILL BRIGGS, Defendant and Appellant. | A106140 (Alameda County Super. Ct. No. 143894) |
Averill Briggs timely appeals his jury-trial conviction and sentence of 265 years-to-life for burglary and various sexual offenses against two children under the age of 14 years. Briggs contends (1) the trial court improperly denied his Batson-Wheeler[1] motion; (2) the prosecutor committed misconduct on closing argument by commenting on his failure to testify; (3) his sentence violates the state and federal prohibition against cruel and unusual punishments; (4) the trial court erred by imposing consecutive sentences; and, (5) the consecutive sentences were based on findings of fact in violation of Blakely.[2] We find no merit in Briggs' contentions and affirm the judgment.
BACKGROUND
A third amended Information charged that on or about June 9, 2002, Averill Briggs entered a family residence with the intent to commit sexual assault, a first degree residential burglary in violation of Penal Code section 459.[3] Briggs was also charged with a forcible lewd act upon a child under the age of 14 years, Jane Doe #1, in violation of section 288(b)(1); 8 counts of aggravated sexual assault of a child under the age of 14 years, Jane Doe #2; comprising 4 counts of oral copulation, 2 counts of rape, sexual penetration with a foreign object, and sodomy, all in violation of section 269, subdivision (a). The Information also alleged Briggs committed the sexual offenses in the course of a first degree burglary and with the intent to commit an offense specified in section 667.61, subdivision (c), within the meaning of section 667.61, subdivision (d)(4). The Information further alleged Briggs committed an offense specified in section 667.61, subdivision (c) against more than one victim within the meaning of section 667.61, subdivision (e)(5). Last, the Information alleged Briggs has a previous conviction for second degree robbery in violation of section 211, which is a serious prior felony within the meaning of section 667, subdivision (a)(1), and a second strike within sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1).
Briggs is African-American. On the second day of trial, November 12, 2003, sixty-five prospective jurors were present on the jury panel. Three trial days later, on November 17, the trial court heard Briggs' Batson-Wheeler motion challenging the prosecutor's use of three peremptory challenges against prospective African-American jurors Georgia Mc., Lawrence L. and Sam R. The trial court stated the Batson-Wheeler motion â€
