P. v. Brooks

Filed 6/21/07 P. v. Brooks CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

I. INTRODUCTION

A jury convicted codefendants Jermaine Brooks, Anthony Brown, and Derek Brown of first degree felony murder in connection with the fatal shooting of a convenience store security guard during the course of an attempted robbery.[1] As to Brooks and Anthony, the jury found true the special circumstance allegation that the killing occurred while they were engaged in the attempted commission of a robbery. Because the prosecution did not seek the death penalty against either defendant, they were sentenced to life in prison without the possibility of parole. The jury found the special circumstance not true as to Derek, and the court sentenced him to an indeterminate term of 26 years to life.

Defendants contend that their convictions and adverse special circumstance findings resulted from: (1) a series of evidentiary and instructional errors at trial; (2) prosecutorial misconduct in jury selection, closing argument, and pretrial discovery; and (3) ineffective assistance of counsel. Brooks and Anthony contend that their life-without-parole sentences were unauthorized by statute and constitute cruel and unusual punishment.

Finding no reversible error in the trial proceedings or illegality in the sentences imposed, we affirm the judgments appealed from.

II. BACKGROUND

A. Relevant Pretrial Proceedings

By information filed in July 2002, defendants were charged with murdering James Milton Miller on or about October 31, 2001 (Pen. Code,  187, subd. (a)).[2] The information charged all three codefendants with the special circumstance of committing the murder while engaged in the commission of a robbery ( 190.2, subd. (a)(17)(A)). The information further alleged that codefendant Brooks: (1) caused Millers death by personally and intentionally discharging a firearm ( 12022.53, subd. (d)); (2) personally and intentionally discharged a firearm ( 12022.53, subd. (c)); and (3) personally used a firearm (former  12022.5, subd. (a)(1);  12022.53, subd. (b)). With respect to Anthony and Derek, the information alleged that a principal in the offense was armed with a firearm ( 12022, subd. (a)(1)).

At their arraignments, the prosecution announced that it was not seeking the death penalty against any of the defendants. All of the defendants pleaded not guilty and denied the allegations. Jury trial began on November 15, 2004. During jury selection, the defense brought three Batson-Wheeler^[3] motions, and each motion was denied.

Trial continued from January 11 through February 2, 2005.

B. Trial Evidence

1. Prosecution Case

a. The San Leandro Robbery

On October 31, 2001, the night before the murder of James Miller, defendants robbed a 7-Eleven store in San Leandro owned by Sushil Singh and her husband.[4] The store was near Interstate 580. Singh was alone in the store, standing behind the counter at the cash register, when three Black males, later identified as the defendants, entered the store between 6:30 p.m. and 7:00 p.m. Derek came to the counter, asked for a pack of Newport cigarettes, and gave Singh five dollars. When Singh put the money on the cash register and opened it to give him his change, Anthony came to Singhs side of the counter, put a silver gun to her head, said, [H]old it, and grabbed about $100 in cash out of the register. As he was doing this, Anthony pushed Singh down to the floor and told her not to look. The entire incident took about a minute. Five minutes after defendants left, customers entered the store and the police were called. Store security cameras captured the incident on a videotape that was played for the jury.

In a statement to police after his arrest, Anthony described the robbery of a 7-Eleven store in Hayward near Interstates 580 or 880 a day or two before the shooting of James Miller in which he had made the clerk get on the ground, gone through the cash register, and left with about $100. He told police that the nine-millimeter gun he used that day was same one used in the Miller shooting. Derek and Brooks also admitted participating in the San Leandro robbery. Brooks agreed that Anthony used the same gun in that robbery that Miller was shot with on October 31, 2001. Tapes of defendants statements about the San Leandro robbery were played for the jury.

b. The October 31, 2001 Shooting

Iyad Allamari, known as Alex, was working as a cashier at the 7-Eleven store at 4720 MacArthur Boulevard in Oakland on October 31, 2001. Security guard James Miller and clerk Isayas Debessay were also present in the store about 10:30 p.m. when defendants entered. There were two other customers in the store at the timea female and a malewho Alex served. Derek and Anthony came to the cash register, standing in line behind the female customer. Brooks had entered the store with a cigarette in his hand. Miller told Brooks to drop it or take it outside. Brooks left the store to throw the cigarette away and reentered. Alex noticed that Derek and Anthony laughed at Brooks, although not loudly.

When Derek and Anthony came up to the register, Derek took beef jerky from the counter and paid with a five-dollar bill. Anthony was next to him. Alex placed the five-dollar bill in the cash register and took out $4.01 in change. After closing the register, Alex turned to his right because he felt there was something going on there. When he turned, Alex saw that Brooks was pointing a white-colored gun at Millers head. Believing it was a robbery, Alex raised his hands and told Miller to give up his gun.[5] Miller resisted and held Brookss wrist with one hand. It appeared to Alex that Miller was trying to take the gun from Brooks.

When Alex first saw the gun, Debessay was standing next to him. Debessay ran away to the stores office, and Alex backed away and ran behind a shelf. From behind the shelf, he saw Derek and Anthony move toward Miller. He saw one of the defendants trying to grab Millers gun, but could only see his hand, not his face. The person tried once or twice to pull out the gun but was not successful. The altercation occurred near the front door. Seeing a chance to escape, Alex ran to the bathroom and closed the door. From the bathroom, Alex heard a single gunshot.

Debessay waited a minute or two before coming out of the office, and then called 911. He saw Miller walking slowly out of the store. A tape of the 911 call was played for the jury. Debessay told the operator that somebody just shot my security guard and that [h]e wants to rob us. Alex tells the operator, We got robbing by three black people.

Officer Edwin Bermudez was the first officer to arrive at the scene. He found Miller lying motionless on the hood of his car, which was parked directly in front of the stores front door.[6] Miller was unconscious and never regained consciousness. A pathologist testified that a single bullet entered the front of Millers chest, went through his left lung, bruised his heart, and exited out his back, causing his death. There was no evidence of powder burning around the entrance wound, indicating that the shooting was not done at close range.

Two videotape security cameras were operating on the night of the shooting. One showed the entrance to the store and, thus, every customer who entered. The cameras produced a videotape that was played in court. The videotape showed the three defendants in various positions that generally corroborated Alexs account of the sequence of events he observed.[7]

The videotape also showed a partial view of the struggle between the guard and the defendants, and showed where Brooks and the guard were standing when the fatal shot was fired.[8] Sergeant Derwin Longmire, the primary investigating detective on the case, watched the videotape after he arrived on the scene at about 1:00 a.m. After watching the tape that night and interviewing Alex, Longmire concluded that defendants had attempted to rob the store but were interrupted by Miller doing his job. Shown the tape in court, Longmire testifiedbased on Brookss stance just before the moment when Longmire believed the actual shot must have been firedthat the shooting of Miller was a deliberate act. According to Longmire, and as substantiated by the videotape, Brooks was in a shooting stance, with his feet spread, his right hand holding the main grip of the gun and his left hand supporting it. The tape shows Brooks raising the gun to a horizontal position with his head and arms aligned to give him a line of sight along the gun barrel. Immediately after that frame, the guard is shown falling back and the shooter had fled from the store.

c. Informant Dwayne Chandler

On November 10, 2001, the police arrested Dwayne Chandler for gun possession. Chandler offered to tell the police about the Oakland 7-Eleven shooting in return for being released on the gun charge. He wanted his name kept secret. Longmire told Chandler that the gun charge might be dropped if his information was solidly corroborated.

The jury heard an audiotape of Sergeant Longmire interviewing Chandler on November 12, 2001. On the tape, Chandler recounts how he had identified all three defendants from photo spreads, and that all three had told him personally they were involved. According to Chandler, Brooks told him he intended to rob the 7-Eleven, but the security guard resisted, so Brooks shot him. Chandler provided other details concerning the crime, including the cost of the item Derek purchased, the fact that Anthony walked into the store with his grey hood pulled over his head, and the fact that Miller was shot in the chest. Before Chandler provided defendants names, Longmire did not know the names of any suspects.

On November 13, 2001, Longmire brought Chandler in front of a superior court judge, sitting as a magistrate, who questioned him about the information he had provided. The magistrate signed the arrest warrants and Chandler was released three days after he was arrested, with no charges against him.

At trial, Chandler recanted most of his prior statements. Although he knew all three defendants,[9] Chandler testified that he had not spoken directly with any of them after the incident. Rather, he simply told Sergeant Longmire rumors that he had heard in the neighborhood about who was involved. The information about the incident that he supplied to Longmire was based on his prior knowledge about defendants, publicity he had seen in the newspaper, and information Longmire had given him, including photos of the incident. Longmire had told him the store had been robbed. Chandler testified that he told Longmire he had spoken directly with the defendants in order to make his information seem more valuable. He was under the influence of heroin, cocaine, alcohol, and marijuana when he was arrested. He had been anxious to get out of jail so he could get back on the streets to buy more drugs.

d. Defendants Statements to Police

Anthony was arrested on November 13, 2001, and gave a taped statement that evening. The tape was played for the jury. Anthony smoked nine marijuana cigarettes that day, and drank half a pint of gin and about the same amount of Hennessy. Defendants planned to rob the store by taking cash from the register. After walking in, they waited until a female customer left the store before moving ahead with the plan. Anthony identified a photo from the surveillance video as him struggling with the guard. He told police that Miller refused to surrender his gun and that he tried to grab the gun so no one would get shot. Although he had been to the store before, and knew Miller was armed with a gun, Anthony told police that he forgot Miller was armed until he saw the gun.

Brooks was also arrested on November 13, 2001, and gave a statement to police that was tape-recorded. The statement was played for the jury. Brooks told police that he did not mean to shoot Miller. He described driving to the 7-Eleven store on Halloween night to commit robbery. When Brooks saw the guard he said, Im gonna to take the security guard. He was going to make sure the guard did not pull his gun out by pointing his own gun at the guard. He entered and walked up to the security guard. When the guard turned around, Brooks pointed his gun at him. He put his gun on the guards back, and said, Give me your gun. The security guard grabbed Brookss gun with both hands and they began tussling over it. The guard told Brooks, Im not givin you my gun. Then the guard released Brookss gun and Brooks said, Okay, okay. As he was pulling his gun back and running toward the door, he hit the trigger and the gun went off accidentally. He did not know the gun was loaded. He ran out the door, got into his car, and left.

The police interviewed Brooks and Anthony together on November 14, 2001, and a tape of that interview was played for the jury. Anthony stated that they went to the 7-Eleven to rob it, and Brooks agreed. They did not want the guard to pull a gun out. Brooks said he had a gun and knew about my part. He explained that his part was to keep a gun on the guard so he could not pull his gun out. Anthony stated that his job was to pick up whatever he could, either money or goods. Anthony knew Brooks had a gun. Both men had seen an armed security guard in the store before.

Anthony stated that he initially went to the candy area and remained there until the struggle started between Brooks and Miller. Then he went over and tried unsuccessfully to grab the security guards gun and pull it out of the holster so that the guard would not shoot anybody. Anthony said that Brooks said, [A]ll right, Ill leave, and they started to leave. Brooks stated that as he was pulling the gun away, he pulled the trigger and it went off. He told police that the shooting was an accident and he did not mean to do it.

Derek was arrested on November 15, 2001, and interviewed by police that day. A tape of the interview was played for the jury. Derek had been to the Oakland 7-Eleven two or three times. He had been there twice when there was an armed security guard present. On the night of October 31, 2001, defendants went to a 7-Eleven near Mills College. They did not talk about robbing that store, but a robbery was mentioned. They knew they were going to commit a robbery because it was discussed inside the car. They used the same pistol that was used in the San Leandro robbery. It was a turf gun that did not belong to any one of them in particular. Derek thought he mentioned to the others that there was a guard in the Oakland store. Asked if he mentioned it because they had decided to rob the store, Derek said, Yeah. He went in and bought some beef jerky. When he paid for the jerky, a gun was pulled and he ran out of the store. He heard a gunshot and kept running, ending up near a school. The next day, Derek ended up with the gun that was used. He hid it near his house, but it was gone the next day when he went to retrieve it.

Derek was interviewed a second time that evening by a deputy district attorney and police inspector, and a tape of the second interview was also played for the jury. Asked why he went to the Oakland 7-Eleven, Derek first said that he did not know, then that he guessed he went there to commit a robbery. The idea was to get cash from the cash register, not to grab things off the shelf. They parked the car on the side of the store, even though the parking lot in front was not full. Derek said that he considered the fact that there was a guard there, but went in anyway. He had seen the gun in the car but did not know whose it was. He didnt know it was loaded until he heard the gunshots later. He was not sure what he was supposed to do; he was just scared and froze up. He stated that he paid for his beef jerky and then [t]he dude had closed the register back up real quick.

2. Defense Case

Brooks was the only defense witness. He admitted that he shot Miller, but denied there was an attempted robbery. He was only planning to buy beer and cigarettes at the store. He had purchased the gun that he shot Miller with for protection a few months earlier. At first, Brooks kept the gun in a closet at his girlfriends house. Then, about a month before the shooting of Miller, Brooks was robbed in the parking lot of a convenience store. Not wanting to be robbed anymore, he began keeping the gun under the front seat of his car.

Although Brooks admitted participating in the robbery of the San Leandro 7-Eleven with Anthony and Derek, the gun used in that robbery was not the same one that he shot Miller with. It was Anthonys idea to go to the San Leandro 7-Eleven. He told Brooks he wanted to rob it, but he did not go into details. It did not concern Brooks. Anthony asked Brooks to take him to the San Leandro store to rob it, and Brooks did so. Anthony had a gun with him, but Brooks did not. Brooks thought Anthony would use the gun, but he did not consider the possibility that he would fire it. He went into the store to help Anthony as a lookout. They split the money evenly among them but had not agreed beforehand to do so.

On the day of the shooting, Brooks drank a lot of beer and Hennessy, and took some ecstasy pills. He attended a Halloween party and drank a couple more beers. On the street outside, he ran into Derek and Anthony and told them he was going to a motel to buy more ecstasy. He invited them to join him. As he got into the car, Brooks took the gun from underneath the seat and put it in the right pocket of the jacket he was wearing. He did so because buying drugs at the motel was dangerous.

Brooks decided on his own to stop first at the 7-Eleven to purchase beer and cigarettes. There was no discussion in the car about a robbery. He parked on the side of the store because the parking lot was busy and the reverse gear in his car did not work. Brooks had been to the store many times before and knew there was an armed guard there. Inside the 7-Eleven, the guard told him to put his cigarette out; he went outside and got rid of it. As he walked past the guard on his way to the beer cooler, the guard noticed the gun sticking out of his pocket. As soon as Brooks walked past Miller, Miller grabbed the handle of the gun with his right hand. The gun caught on Brookss pocket and Miller did not get it out. That was when they began tussling over the gun for what seemed like two or three minutes. Brooks was feeling the effects of alcohol and ecstasy and his sense of time may have been distorted.

Anthony came over and asked what was going on. When the guard started to reach for his own gun, Anthony tried to stop him from taking it out. Brooks never tried to get the guards gun. When he got his own gun free, it discharged accidentally as he was backing up. He was in a daze and had no clear memory of this, but he admitted that his hand was on the trigger and that the gun was pointed toward the guard. Although he pulled the trigger, the gun fired accidentally.

Brooks gave Anthony the gun so he could drive. He never saw the gun again. He did not see or speak to Dwayne Chandler that night and never spoke with him about the shooting. He met with Derek and Anthony about a week later and he told them to tell the police that it had been a robbery because he thought it sounded better than that he was a cold-blooded killer. He did not want to be accused of a senseless killing, and wanted Anthony and Derek to help him by lying. In his own statement to Longmire he tried to convince him it had been a robbery. He did not want to tell Longmire the gun was his, because he felt it would make him look bad.

C. Verdicts, Sentences, and Appeal

On February 9, 2005, the jury found all three defendants guilty of first degree murder. The jury also found the special circumstances allegations true as to Brooks and Anthony, but not true as to Derek. The jury found the arming allegations true as to Anthony and Derek, and the personal use allegation true as to Brooks, but it found not true the allegations that Brooks had personally and intentionally discharged a firearm.

The trial court sentenced Brooks to life in prison without the possibility of parole, plus 10 years for the gun use enhancement. Anthony also received a sentence of life without the possibility of parole, with an additional one-year sentence for the arming enhancement.[10] Derek was sentenced to an indeterminate term of 26 years to life in prison, with an additional sentence of one year for the arming enhancement.

All of the defendants timely appealed.

III. DISCUSSION

A. Jury Selection

Defendants contend that the trial court erred when it accepted the prosecutors stated reasons for challenging three African-American jurorsJurors B., S., and F.and on that basis denied the defenses Batson-Wheeler motion.

1. Facts

Voir dire of prospective jurors and alternates was conducted on eight daysDecember 14, 15, 16, 20, and 21, 2004, and January 4, 5, and 10, 2005. Peremptory challenges began on December 15. On December 16, the prosecutor exercised her sixth and eighth peremptory challenges to excuse two African-American prospective jurors, Juror B. and Juror R. This prompted the defense to make a motion pursuant to Wheeler, on state constitutional grounds only.

The defense noted that two other African-American jurors had been excused for cause or by stipulation, and there were at that time no other African-American jurors among the 12 seated in the box. The court pointed out that several African-American jurors had been excused for hardship and one had failed to appear. It found no prima facie case of racial discrimination, but gave the prosecutor the choice of explaining her challenges to Jurors B. and R. She did so.

The prosecutor stated that she had numerous reasons for excusing Juror B. Juror B. was a single mother who had her first child at age 18 and her second at age 21, by different fathers. Although Juror B. had worked for the last 12 years in a relatively conservative environmentthe clerks office of a federal bankruptcy courtthe prosecutor believed that Juror B. seemed to have a very nontraditional and kind of counter cultural lifestyle, based on her personal appearance and lifestyle choices. Regarding Juror B.s personal appearance, the prosecutor cited her red streakish hair. She believed Juror B. was not someone who would be . . . a conservative juror that would convict somebody. The prosecutor was also concerned that Juror B. seemed very eager to get on the jury, because she had said she was concerned about giving incorrect answers and seemed not to be completely candid about . . . her feelings.[11]

The defense argued that some of the prosecutors stated reasons were contradictory insofar as Juror B. was too eager to serve on the jury but Juror R. was too reluctant. The defense also challenged the portrayal of Juror B. as nontraditional in light of the fact that she worked for a federal court, had moved to a different community so her children could attend better schools, and described her spare time activities in her questionnaire response as staying at home with her daughters, going out with family and friends, and going to movies or church. The defense also noted that Juror B.s hair color was quite a common thing today.

The trial court stuck by its original ruling that defendants failed to make out a prima facie case of discrimination but commented that the issue was much, much closer . . . as to [Juror B.] than it was as to [Juror R.].

On January 4, 2005, the prosecutor used her 17th, 21st, and 24th peremptory challenges to excuse three African-American prospective jurorsJurors C., S., and F., respectively. The defense renewed its Batson-Wheeler motion, pointing out that the prosecution had excused three more African-American prospective jurors, leaving none remaining on the jury. This time, the court found that a prima facie case of racial discrimination had been made out and required the prosecutor to state her reasons for excusing the three jurors.

The prosecutor explained that she excused Juror C. because Juror C. was an attorney and she felt the other jurors would defer to an attorney in deliberations. Juror C. also expressed distrust of the criminal justice system and felt the system was unfair to poor people. On this appeal, defendants do not challenge the trial courts acceptance of the prosecutors reasons for excusing Prospective Juror C.

As to Prospective Juror S., the prosecutor asserted that she had been charged with felony welfare fraud and perjury in 2001, eventually pleading guilty to misdemeanor welfare fraud under a plea agreement. According to the prosecutor, Juror S. had implied that she was put in a diversion program, and was not forthright in disclosing that she had in fact sustained a criminal conviction and might have still been on probation. The prosecutor also stated that Juror S. admitted she would have a hard time applying the felony-murder rule to an aider and abettor, although she also indicated that she would be able to follow the law. The prosecutor pointed to several White male jurors whom she had excused for that same reason.

As for Prospective Juror F., the prosecutor explained that she was a senior legal document specialist at a law firm and the prosecutor was concerned that the other jurors would tend to defer to lawyers or quasi-lawyers in deliberations. The prosecutor pointed out that she had previously excused a court administrator who was not an actual lawyer, but who had a juris doctor degree and whose wife was a lawyer, because it was her practice to excuse all lawyers, semi-lawyers, [and] quasi-lawyers on the panel. She also expressed concern about Juror F.s view that, according to statistics she had learned about in her political science classes, the criminal justice system treats minorities unfairly.[12] The prosecutor stated that Juror F. had initially denied holding any negative views of the criminal justice system when she first began to probe her on that subject. As further reasons, the prosecutor expressed concern that Juror F. perhaps oversees and possibly critiques the work of attorneys, and might scrutinize the prosecutors work. According to the prosecutor, when she had jokingly asked Juror F. whether she disliked attorneys, Juror F. had not denied it. Finally, the prosecutor was concerned that Juror F. seemed to be falling asleep for most of that afternoons proceedings and perhaps was not interested in the whole process.

The defense contended that Juror S. was candid in her answers about her criminal history and may have simply misunderstood the precise disposition of her prior case. The defense also challenged the prosecutors assertion that she excused all prospective jurors who, like Juror S., questioned the fairness of felony-murder liability for an aider and abettor, noting that Juror No. 8, who was ultimately seated as a juror, raised similar concerns. As for Prospective Juror F., the defense argued that she said nothing to indicate any antipathy to attorneys. She had her eyes closed at times, as did many of the prospective jurors, but she was not sleeping.

The trial court noted that the prosecution had excused 24 prospective jurors, five of whom were African-American. The court stated that this was a concern, and that it would be watching the situation closely, but that it was satisfied with the prosecutions race-neutral explanations for excusing Prospective Jurors C., S., and F.

Defendants renewed their Batson-Wheeler motion when the prosecutor exercised her 26th peremptory challenge to excuse a sixth African-American prospective juror, Juror M. The prosecutor explained that Juror M. had at least five family members who had either been arrested, charged, or prosecuted by the district attorney for crimes in the previous year, including a cousin convicted of the same underlying felony that is involved in this caseattempted robbery. Juror M. had attended the cousins court proceedings once or twice. The defense argued that Juror M. was candid, showed no hint of animosity toward the district attorneys office, and gave her assurance that she could set aside what had happened to her relatives.

The trial court accepted the prosecutors race-neutral reasons for her challenge to Juror M. and again denied the defense motion. Defendants do not contest the exclusion of Juror M. on this appeal, although they also do not concede that the prosecutors reasons were credible.

The jury sworn in to hear the case had no African-American jurors. The prosecutor used peremptory challenges against three prospective alternate jurors, a White male, a White female, and an Asian male. Two of the four alternates were African-American. None of the alternates ultimately served on the jury that decided the case.

2. Standard of Review

Defendants contend that each of the prosecutors stated reasons for excusing Prospective Jurors B., S., and F. were either unsupported by the record, inherently implausible, or both unsupported and implausible.

The trial court evaluates a Batson-Wheeler motion in a three-step process. (People v. Silva (2001) 25 Cal.4th 345, 384.)  [O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.  (Ibid., quoting Purkett v. Elem (1995) 514 U.S. 765, 767.)

The defendant satisfies his prima facie burden in step one by producing facts that give rise to an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S. 162, 170.) The determinations required by steps two and three are more complex: In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, the trial court must make a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .    (People v. Guerra (2006) 37 Cal.4th 1067, 1100.)Implausible or fantastic justifications may be found to be pretexts for purposeful discrimination. (Purkett v. Elem, supra, 514 U.S. at p. 768.) Reasons that are contradicted by the record may be evidence of such discrimination. (McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 12211222; Caldwell v. Maloney (1st Cir. 1998) 159 F.3d 639, 651.) However, the justification offered need not be sufficient to support a challenge for cause, and even  trivial  or   highly speculative   reasons, if genuine and neutral, will suffice. (People v. Arias (1996) 13 Cal.4th 92, 136; People v. Ervin (2000) 22 Cal.4th 48, 77.)

[T]he trial court is in the best position to determine whether a given explanation is genuine or sham. (People v. Fuentes (1991) 54 Cal.3d 707, 720.) Therefore, when the trial court has engaged in a sincere and reasoned attempt to evaluate the stated reasons offered for the exclusion of each challenged juror, we accord great deference to its rulings that the prosecutors stated reasons are genuine, reviewing them under the substantial evidence standard. (People v. Jurado (2006) 38 Cal.4th 72, 104105; People v. Silva, supra, 25 Cal.4th at pp. 385386.)

3. Analysis

Based on our review of the record, we are convinced that the trial court made a sincere and reasoned effort to evaluate the prosecutors race-neutral justifications as to each of the jurors in question. We therefore limit our inquiry to whether there is substantial evidence in the record to support the trial courts rulings as to the genuineness of the prosecutors stated reasons.

Juror B.

Defendants concede that a jurors nonconformism or nontraditional lifestyle may be an acceptable, race-neutral reason for a peremptory challenge. (See People v. Ayala (2000) 24 Cal.4th 243, 261 [ nonconformist  jurors]; Wheeler, supra, 22 Cal.3d at p. 275 [prospective juror whose clothes or hair length suggest an unconventional lifestyle].) A jurors eagerness to serve may also constitute a sufficient, race-neutral reason supporting such a challenge. (People v. Ervin, supra, 22 Cal.4th at p. 76.)

At Anthonys request, this court directed the trial court to hold a hearing to settle and supplement the record to more fully describe Juror Bs hair and appearance. The trial court held the hearing on March 10, 2006, at which time the prosecutor and defense counsel put their conflicting recollections of Juror B.s physical appearance on the record. The trial court clerk also answered questions about her recollections of Juror B.s appearance, and the court added its own recollections.

With respect to Juror B., we find that the trial court could reasonably have found that the prosecutors stated reasons for excusing her were genuine. First, although defense counsel disputed whether the reddish streak in Juror B.s hair was so distinctive as to suggest a nonconformist or nontraditional lifestyle, this court is in no position to second-guess the trial court on an issue of that nature. (See People v. Sims (1993) 5 Cal.4th 405, 430 [because prospective jurors immaturity cannot be gauged from the cold record, reviewing court must rely on the trial courts good judgment to evaluate whether that stated reason was bona fide].) We note that at the settlement hearing, the trial judge stated that he remembered Juror B. because of the orangish-red streak to her hair, that he took notice of her hair coloring and style, and that he considered that her hair had a distinctive, although not a unique look. On this point, although the inference the prosecutor drew from Juror B.s appearance might have been unreasonable, substantial evidence supports the trial courts conclusion that it was sincere.[13]

Second, defense counsel also questioned the prosecutors purported reliance on the fact that Juror B. had had children by two different fathers at a young age and never married, as further evidence of her nontraditional lifestyle. Counsel pointed out that the prosecutor failed to question or challenge another alternate juror who lived an unconventional lifestyle in that he had lost touch with his daughter when she was 17 years old, and had had no contact with her in several years. (See Miller-El v. Dretke (2005) 545 U.S. 231, 241 [evidence that reason offered for excluding African-American juror was not applied to challenge non-African-American jurors may tend to prove purposeful discrimination].) However, we do not find the parallels between these jurors to be so significant as to compel an inference that the prosecutors statements about Juror B. must have been a sham. In general, alternate jurors are not similarly situated to jurors originally sworn to hear the case for purposes of comparative analysis. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1018, fn. 13.) Further, there are many reasons why a father might become estranged from his daughtera serious conflict with her or her mother, for examplethat would not reflect a choice on his part to live a nontraditional lifestyle.

Because substantial evidence supports the trial courts determination that the lifestyle concerns raised by the prosecutor were genuine, we need not consider the prosecutors other stated reasons.

Juror S.

There is no dispute that the record supports at least two of the reasons offered by the prosecutor for excusing Juror S. Juror S. had in fact been charged and prosecuted by the district attorneys office for welfare fraud and perjury a few years earlier, and she did express significant reservations about applying the legal rules on aider and abettor liability that were essential to sustaining the charges asserted in this case.[14] Either reason alone, if genuinely motivating the prosecutors challenge, would have furnished a race-neutral reason for her action.

We find no persuasive evidence in the record undermining the courts ruling that these reasons, singly or in combination, were genuine. Defendants name various other jurors who, they contend, voiced similar reservations about the aider/abettor rules but were not challenged by the prosecution. However, unlike Juror S., none of these jurors had been prosecuted by the district attorneys office for and convicted of a crime involving dishonesty, or had offered an inaccurate description of the disposition of their case. Moreover, based on our review of the record, these jurors seemed less troubled by the aider/abettor rules than was Juror S.[15] With only a limited number of peremptories available, it would not be illogical for the prosecutor to refrain from challenging jurors whose reservations about the aider/abettor rules were more mildly stated than Juror S.s, and whose assurances about being able to follow the law she found more credible. Further, the jurors defendants cite in their comparative analysis may well have had other, pro-prosecution qualities that Juror S. lacked.

In our view, defendants failed to carry their burden of demonstrating error in the trial courts finding that the prosecutor dismissed Juror S. for genuine, race-neutral reasons.

Juror F.

Defendants attack the prosecutors claim that she consistently excused all lawyers, semi-lawyers, [and] quasi-lawyers from the jury panel. They cite three panel members whom they contend fell into that category but were not challenged by the prosecution. We do not find the counter-examples very probative.

Prospective Juror T. had worked for a sheriffs department 20 years earlier for approximately two years. For part of that period, he had spent extensive time in courtrooms, both testifying and working as a bailiff. This is simply not comparable to Juror F. who was currently working for a law firm and was much more engaged in the field of law than the former sheriffs department employee. If anything, Juror T.s background would have made him appealing to the prosecution. He was in fact excused by the defense.

Another juror cited by the defense, Juror A.T., had a degree in criminal justice administration and had considered a career in that field. However, Juror A.T. had left the criminal justice field eight years earlier and was working as an airline pilot. As the People point out, Juror A.T.s background and attitudes would have made him seem distinctly pro-prosecution. He worked in loss prevention for a department store chain and had apprehended some 75 persons in that capacity, evidently for theft. He had a very positive relationship with the police in that job and had positive attitudes about the criminal justice system. It is not difficult to understand why the prosecution would have preferred Juror A.T. to be on the jury compared to Juror F., for reasons entirely unrelated to race.

Finally, defendants cite Juror No. 7, a political consultant who had worked on political campaigns for judges and district attorneys. In our view, compared to a person whose professional career consists of assisting lawyers in handling legal cases, a campaign consultant does not present nearly the same risk of being attributed with special legal expertise by fellow jurors. The prosecutors failure to challenge Juror No. 7 does not reflect on the sincerity of her reasons for excusing Juror F.

Juror F. was further distinguished from other jurors by her statement that the criminal justice system treats minorities unfairly. Although one juror, Juror G., opined that the justice system favors those who have more resources, Juror G. also stated that most of the worlds justice systems share the same limitation and that our system is the best system that we know of. The prosecutor could reasonably distinguish between Prospective Jurors F. and G. without calling the genuineness of her concern about Juror F.s criminal justice views into question. The fact that the prosecutor did not question all jurors in depth about their views on this abstract issue is also not very probative. Adapting her inquiries to the unique information elicited from each prospective juror is hardly evidence of the prosecutors insincerity or dishonesty.

In sum, substantial evidence supports the trial courts rulings that the prosecutor had genuine, race-neutral reasons for excusing each of the jurors in question.[16]

B. Issues Relevant to First Degree Murder Convictions

1. Admission of Sergeant Longmires Expert Opinion Testimony

Anthony and Brooks argue that the trial court prejudicially erred in allowing Sergeant Longmire to testify that defendants demonstrated a common method of committing robbery and that the Oakland 7-Eleven robbery showed the same methods as the San Leandro robbery.

A critical issue at trial was whether or not defendants intended to rob the Oakland 7-Eleven. Both the felony-murder rule and the special circumstance finding hinged on the jurys resolution of that issue. In support of her case for attempted robbery, the prosecutor questioned Sergeant Longmire about his interpretation of defendants actions as seen in the Oakland and San Leandro 7-Eleven surveillance videotapes. The prosecutor asked Longmire if he was familiar with the method of robbery as seen on the videotape and described by each of the defendants. Defendants objected on the grounds that the question was vague as to what method meant, and compound. Without objection, the court thereupon rephrased the question as follows: Was there anything in particular about this robbery that you recognized as a common . . . method of committing a robbery based on your experience. Longmire responded in relevant part: The way the men all kind of come together around the cash register, particularly how they waited and allowed for . . . the other patrons, to actually leave before getting started with the offense. In response to further questioning, Longmire explained, without objection, that coming together around the cash register and giving other patrons the opportunity to leave before starting the robbery is a common method of committing a robbery. The prosecutor asked him how Dereks purchase factor[s] into the common method of robbery. Defense counsel reiterated its vagueness objection, whereupon the court asked the witness whether and how the fact that Derek made a purchase factored into his experience in terms of how robberies might be committed. Longmire explained that handing money to the clerk might be the trigger point for a robberyit would get the clerk to focus on him and open the cash drawer, facilitating the robbery. Dereks counsel asked that the answer be stricken as speculation because the witness said it could have been a trigger point.

The defense now argues that this testimony was inadmissible because it constituted improper profile evidence and because its subject matter was not sufficiently beyond common experience that an expert opinion was necessary to assist the trier of fact. As an initial matter, we agree with the People that the defense failed to preserve these issues for appellate review by timely objecting on these grounds in the trial court. It was not futile to object on the grounds now cited merely because the court framed some of the questions. The court reframed the questions in response to defendants vagueness objections. Had defendants objected on a ground other than vagueness, there is no reason to assume the court would have responded in the same fashion. Further, Dereks motion to strike the trigger-point testimony as speculation cannot be construed to encompass the claim that this was not a proper subject of expert testimony. Even had that objection been properly preserved for our review, we would reject it on the merits. Typical methods of initiating a store robbery are not within the common knowledge of jurors.

Defendants also assert that the trial court erred in allowing Longmire to testify that, based on his experience, the method used in the San Leandro robbery and the Oakland incident were quite the same. Asked to elaborate, Longmire explained that in both cases the three men entered the store, with two approaching the cash register, and the third drifting. At trial, defendants objected to the prosecutors questions on this point as vague and irrelevant or asked and answered. On appeal, defendants argue that the testimony added nothing that would not have been apparent to the jurors from viewing the videotapes, and included an improper opinion on the ultimate issue of whether the Oakland incident was an attempted robbery.

First, Longmires testimony did add a perspective not necessarily apparent to lay jurors viewing the videotapethat seemingly innocuous or random movements and actions can be preliminary steps in carrying out a robbery. In closing argument, defendants in fact tried to persuade the jurors that the tape exonerated them of attempted robbery. According to Anthonys counsel, the tape was totally and completely consistent with Brookss testimony that there was no robbery attempt. Brookss counsel argued to similar effect. The prosecution was entitled to meet its burden of overcoming these anticipated arguments by introducing opinion evidence that the tape was in fact consistent with an interrupted robbery attempt.

Second, Longmire did not render an improper opinion that defendants committed an attempted robbery. Anthony points out that in People v. Torres (1995) 33 Cal.App.4th 37, the Second District held that it was error to admit a police officers testimony that, in his opinion, the defendant had committed the crime of robbery rather than the crime of extortion. (Id. at pp. 4748.) At the same time, the Torres court was careful to observe that opinion testimony going to an element of a crime is permissible in some cases. (Id. at p. 47.) Despite the panels general observation that robbery was not  sufficiently beyond common experience  that the jury needed an expert to determine whether it had been committed (ibid.), Torres did not hold that opinion testimony was never admissible to prove an element of attempted robbery. Here, Longmires testimony was useful to the jury in decidingin the words of the jury instruction defining attemptwhetherdefendants actions inside the store constituted direct but ineffectual act[s] done toward [the] commission of arobbery or whetherthe acts clearly indicate[d] a certain, unambiguous intent to commit robbery. Although Longmire inadvertently (and incorrectly) referred to the Oakland incident as a robbery at one point in his testimony, he was not asked for and did not offer an opinion that defendants had committed an attempted robbery of the Oakland 7-Eleven.

In sum, defendants current objections to Longmires opinion testimony were not timely interposed at trial, and are therefore not cognizable on this appeal. In any event, the subject matter to which Longmire testified was appropriate for expert opinion. 2. Improper Vouching for Chandlers Credibility

Anthony and Brooks contend that the trial court erred in admitting evidence that Sergeant Longmire and the magistrate who issued the arrest warrants believed Dwayne Chandlers initial statements to police were credible. These statements included Chandlers claim that all three defendants had personally admitted to him that they attempted to rob the Oakland 7-Eleven store, a claim Chandler recanted at trial.

Over a vagueness objection, the prosecutor asked Longmire about his impression of the details Chandler had provided of his conversation with Derek. The court asked Longmire whether he understood the question and allowed him to answer it when he said he did. Longmire responded that Chandlers information appeared accurate. The prosecutor then asked Longmire for his impression of the account Chandler gave him about his conversation with Brooks. Brookss attorney objected that the question was inappropriate for a nonpercipient witness. The court overruled the objection, and Longmire stated: It appeared to be pretty accurate. Over defense objections that Longmires opinion about Chandlers credibility was irrelevant and invaded the province of the jury, Longmire testified that he did not necessarily believe everything Chandler had told him, but that the essential facts in the probable cause affidavit were things that he did believe and that he found were corroborated by reviewing the tapes and by Chandlers identification of defendants from a photo lineup.

The court also permitted Longmire to testify about bringing Chandler to a hearing before the magistrate who issued the arrest warrants. Longmire testified that the information Chandler provided to the judge was consistent with what he had told Longmire previously, and that after questioning Chandler the magistrate signed the arrest warrants. Later, under cross-examination by counsel for Anthony, Longmire testified that he felt reassured after the hearing. On redirect, the prosecutor asked him to explain why. In the course of his answer, Longmire started discussing questions the magistrate had asked Chandler. This drew a defense hearsay objection. The court allowed Longmire to continue on the condition that his testimony was to be admitted to explain how he conducted his investigation, not for its truth. When he completed his answer, Longmire briefly touched on the magistrates questions and then stated that the questions made him feel good that Chandlers information had been tested by someone other than himself. Defendants made no objection or motion to strike directed at that portion of Longmires testimony

Defendants point to cases holding that officer opinions about the veracity of witness statements are improper (see, e.g., People v. Smith (1989) 214 Cal.App.3d 904, 914916), and that preliminary court or grand jury findings are inadmissible at trial (see, e.g., People v. Whitehead (1957) 148 Cal.App.2d 701, 706).

We reject defendants claims on three grounds. First, with one exception, defendants waived their present claims by failing to raise them at trial. The objection Brookss trial counsel made to Longmires testimony about whether he believed what Chandler told himthat it invaded the province of the jurydoes adequately preserve the vouching objection as to the ensuing testimony that he prepared the affidavit based on the essential facts provided by Chandler that he believed, and that were corroborated by other information available to him. With that exception, defendants trial objections cannot reasonably be construed to encompass improper vouching or improper reference to pretrial proceedings.

Second, as to the merits of the preserved claim, we believe Longmires testimony on this point was admissible because it arose after Chandler had recanted his statements to the police and impliedly put the integrity of Longmires investigation into question. Chandlers testimony would have suggested to jurors that Longmire: (1) implicitly encouraged him to fabricate by priming him with details about the Oakland 7-Eleven incident; (2) ignored indications that Chandlers statements were unreliable because he was suffering from obvious heroin withdrawal symptoms when he spoke to him; and (3) arranged to have Chandler hastily released before satisfying himself that his accusations were credible. In the context of Chandlers testimony, Longmires statement that he found Chandlers statements to be credible, and corroborated by other information, were admissible to refute the suggestion that Longmires dealings with Chandler undermined the reliability of the police investigation.

Finally, any assumed error in allowing Longmire to testify that he believed Chandlers statements to be credible was harmless. Defendants later statements about the crime matched up closely with the information Chandler had provided, as did the videotape and eyewitness testimony about the Oakland robbery. These consistencies provided far stronger corroboration for the veracity of Chandlers statements to Longmire than any alleged vouching testimony by him. Moreover, the jury had a chance to observe Chandler testifying on the witness stand, and to judge for itself whether his trial recantation was credible or not. With all of this other information available to it, there is no reasonable likelihood that the jury would have reached a different conclusion but for Longmires comments on the subject.

3. Failure to Instruct with CALJIC No. 3.20

Defendants contend that the trial court erred in failing to give the following cautionary instruction, which they requested be given in conjunction with the testimony of Chandler: The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating this testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard this testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in this case. (CALJIC No. 3.20.) The trial court refused the instruction on the ground that Chandler was not an in-custody informant. The court did give the following instruction, as part of the standard witness credibility instruction: In determining the believability of a witness, you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including . . . : [] . . . [] [t]he witnesss anticipation or expectation of any reward or benefit in exchange for the giving of testimony or a previous statement used as testimony.

As defendants concede, Chandler did not meet the statutory definition of an in-custody informant, which is limited to a person . . . whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution. ( 1127a, subd. (a).) In this case, no part of the statutory definition was applicable. First, Chandlers trial testimonywhich recanted his earlier statements to policewas not based upon any statements made by defendants. Second, Chandlers prior statements to the police were not based on admissions made by defendants at a time when either he or the defendants were in a correctional institution. Despite the statutes inapplicability, defendants argue that the requested cautionary instruction, or some modification of it, was nonetheless required to be given (1) as part of the courts general duty to instruct on general principles of law relevant to the issues raised by the evidence; and (2) to protect defendants federal constitutional rights to due process, trial by jury, confrontation, and counsel. Defendants cite no case law remotely supporting these propositions.[17]

According to defendants, the trial court had a duty to instruct the jury that it must view Chandlers out-of-court statements with caution and close scrutiny in order to overcome the effect of the vouching evidence discussed earlier. Merely instructing the jury that it could consider the anticipation of benefits as a factor affecting credibility was not sufficient. But, for the reasons discussed above, no cognizable or prejudicial error was committed in allowing Longmires testimony and therefore no special, curative instruction was required as a result of it.

Further, it is simply not a correct statement of law or evidence that an informants statements to police are, in general, to be viewed with caution and close scrutiny. Here