Filed 5/4/17 P. v. Childress CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
LAKENDRICK CHILDRESS,
Defendant and Appellant.
B270380
(Los Angeles County
Super. Ct. No. NA102107)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Tomson T. Ong, Judge. Affirmed.
Phillip A. Treviño, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Eric J. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________________
2
Lakendrick Childress appeals from the judgment entered
following a jury trial in which he was convicted of first degree
home invasion robbery in violation of Penal Code1 section 211
(count 1), assault with a firearm in violation of section 245
subdivision (a)(2) (count 2),2 and possession of a firearm by a
felon in violation of section 29800, subdivision (a)(1) (count 5).
With respect to counts 1 and 2, the jury found the personal
firearm use allegations to be true. (§§ 12022.53, subd. (b),
12022.5.) In subsequent proceedings, the trial court found true
all of the prior conviction allegations. The court sentenced
appellant to an aggregate term of 28 years in state prison.
Appellant contends the trial court erred when it denied a
defense Batson-Wheeler3 motion, and the prosecutor committed
prejudicial misconduct in closing argument to the jury, requiring
reversal. We disagree and affirm.
FACTUAL BACKGROUND
Approximately 9:30 p.m. on June 29, 2014, Marcia Zepeda
and her brothers-in-law, Anthony and Steven Zepeda, were
gathered around the dining room table at Marcia’s home when
four or five men entered the house through the unlocked screen
door. All of the men wore black hooded sweaters or sweatshirts
with the hoods drawn tight, covering their heads. Pointing a
hunting rifle with a scope at the occupants of the room, appellant

1 Undesignated statutory references are to the Penal Code.
2 The jury acquitted appellant on two additional counts of
assault with a firearm.
3 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
3
ordered them down to the floor. Marcia stood up from the table,
and confronted appellant, pushing the rifle away as she yelled at
him to get out of her house. Anthony demanded, “ ‘What do you
want?’ ” He then pulled two $20 bills from his pocket, handed
them to appellant, and said, “ ‘Now leave, that’s all we have.’ ”
Afraid that the men might try to harm her dog, Marcia
dragged the dog through the house and outside. When she
realized no one had followed her, she went to the side porch and
started screaming to get help from the neighbors.
Appellant repeated the order to get down on the floor, and
poked Anthony in the stomach with the barrel of the rifle.
Anthony pushed the barrel away, saying, “ ‘Get that thing out of
my stomach.’ ” Appellant swung the rifle back and struck
Anthony in the ribs. Anthony fell to the floor hitting the back of
his head on a wooden table. When the assailants fled, appellant,
who was still carrying the rifle, dropped one of the $20 bills on
the porch.
During the commotion, appellant’s hood fell down, exposing
his face. Marcia’s and Anthony’s struggles with appellant
brought them within two feet of him, and all three victims were
able to see appellant’s face clearly.
Police responding to the call regarding a home invasion
robbery encountered a crowd of people on the corner near
Marcia’s home. The crowd pointed the officers in the direction
the suspects had run, and the officers saw a person running
across the street about two blocks away. The officers attempted
to follow but lost track of the person. After losing sight of the
subject, the officers doubled back to the area where they had first
seen him and found appellant walking on the sidewalk. The
officers detained appellant, who was carrying a black hooded
sweater and sweating profusely. Police also found a long rifle
4
with a scope matching the description of the rifle used in the
robbery along the route the subject had been seen running.
In separate field show-ups, Marcia, Anthony and Steven
unequivocally identified appellant as the perpetrator with the
rifle. A neighbor who had gone outside when he heard Marcia
screaming also identified appellant in a field show-up as the man
who had run by him carrying a rifle.
Appellant’s grandmother testified for the defense.
Sometime in the evening on the day of the robbery, appellant
visited his grandmother at her home, not far from Marcia’s house.
But the grandmother could not recall what time he was there and
did not know if he was at her house during the time of the
robbery.
DISCUSSION
I. Batson-Wheeler
A. Relevant background
Prospective Juror Nos. 4101 and 6121 were both AfricanAmerican
women, and the prosecutor’s exercise of two
peremptory challenges to excuse these jurors prompted a defense
Batson-Wheeler motion.
Prospective Juror No. 4101 worked in the office of
Development and University Affairs at Charles R. Drew
University of Medicine and Science. She had no prior jury
experience. Prospective Juror No. 6121 was retired from her
previous employment as a civil service clerical worker. She had
served on three civil juries and one criminal jury. The juries
reached verdicts in two of the civil cases, and the court declared a
mistrial in the other civil case. The criminal case was a domestic
violence prosecution which resulted in a mistrial due to an honest
difference of opinion among the jurors.
5
During voir dire, Prospective Juror No. 4101 stated that
although she had seen “all” of the legal crime dramas, she did not
know what to expect in this trial because this was her first
experience as a juror. In response to the district attorney’s
questions, the prospective juror said she did not think the
government or police departments have unlimited funds for
criminal investigations. The prosecutor then asked if she
expected to see in this trial the “tons of lab tests” and other types
of evidence one sees in legal dramas on television. Prospective
Juror No. 4101 responded, “I don’t know.”
The district attorney exercised his first peremptory
challenge against Prospective Juror No. 4101. The court excused
the juror and replaced her with Prospective Juror No. 8897, who
was also African-American.4 After the defense exercised its first
peremptory challenge, the prosecution accepted the panel with
two African-American jurors.
When the prosecution used another peremptory challenge
to excuse Prospective Juror No. 6121, the defense made a BatsonWheeler
motion on the ground that appellant is AfricanAmerican,
and the prosecution had excused two of the three
African-American prospective jurors. The court found the defense
had made a prima facie showing of discrimination and asked the
district attorney to explain his reasons for excusing these
prospective jurors.
The prosecutor explained that Prospective Juror No. 4101’s
statement that she did not know what to expect about the

4 Prospective Juror No. 8897 was an aerospace engineer
with no prior jury experience.
6
evidence that would be presented at trial indicated to him that
she might anticipate the same expenditure of resources in this
case as is depicted in television legal dramas like “C.S.I.” The
prosecutor added that he tended to disfavor people in education
or university employment. Finally, the prosecutor pointed out
that the juror who replaced No. 4101 was also African-American,
and it would make no sense to excuse one juror on account of race
only to have her replaced by another juror of the same race.
The district attorney explained that he excused Prospective
Juror No. 6121 because two of the four cases on which she had
served as a juror had resulted in mistrials. The prosecutor also
reminded the court that after exercising his first peremptory
challenge, he had accepted the panel with two African-American
jurors.
Accepting the district attorney’s explanations as raceneutral,
the trial court denied the Batson-Wheeler motion.
B. The trial court did not err in denying the defense
Batson-Wheeler motion
“Both the federal and state Constitutions prohibit any
advocate’s use of peremptory challenges to exclude prospective
jurors based on race. (Batson, supra, 476 U.S. at p. 97; Georgia v.
McCollum (1992) 505 U.S. 42, 59; Wheeler, supra, 22 Cal.3d at
pp. 276–277.) Doing so violates both the equal protection clause
of the United States Constitution and the right to trial by a jury
drawn from a representative cross-section of the community
under article I, section 16 of the California Constitution.” (People
v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)
“The familiar Batson/Wheeler inquiry consists of three
distinct steps. The opponent of the peremptory strike must first
make out a prima facie case by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.
7
If a prima facie case of discrimination has been established, the
burden shifts to the proponent of the strike to justify it by offering
nondiscriminatory reasons. If a valid nondiscriminatory reason
has been offered, the trial court must then decide whether the
opponent of the strike has proved the ultimate question of
purposeful discrimination.” (People v. Zaragoza (2016) 1 Cal.5th
21, 42; Lenix, supra, 44 Cal.4th at p. 612.)
This case concerns the third step of the Batson-Wheeler
inquiry; that is, whether the trial court correctly determined that
the prosecutor had not engaged in purposeful discrimination in
exercising his peremptory challenges to exclude two AfricanAmerican
prospective jurors. The trial court’s finding on
discriminatory intent is “ ‘a pure issue of fact’ ” to which we apply
a substantial evidence analysis. (Miller-El v. Cockrell (2003) 537
U.S. 322, 339; People v. Hamilton (2009) 45 Cal.4th 863, 900.)
And because the issue comes down to the credibility of the
prosecutor’s race-neutral explanation, we accord great deference
to the trial court’s evaluation of “whether the prosecutor’s
demeanor belies a discriminatory intent” as well as “whether the
juror’s demeanor can credibly be said to have exhibited the basis
for the strike attributed to the juror by the prosecutor.” (Snyder
v. Louisiana (2008) 552 U.S. 472, 477; Lenix, supra, 44 Cal.4th at
p. 614.) The Supreme Court has recognized that such
assessments of credibility and demeanor lie peculiarly within the
province of the trial judge, and in the absence of exceptional
circumstances, an appellate court should defer to the trial court’s
determination. (Snyder v. Louisiana, supra, 552 U.S. at p. 477.)
“The prosecutor’s ‘ “justification need not support a
challenge for cause, and even a ‘trivial’ reason, if genuine and
neutral, will suffice.” [Citation.] A prospective juror may be
excused based upon facial expressions, gestures, hunches, and
8
even for arbitrary or idiosyncratic reasons.’ [Citation.] ‘The
proper focus of a Batson/Wheeler inquiry, of course, is on the
subjective genuineness of the race-neutral reasons given for the
peremptory challenge, not on the objective reasonableness of
those reasons. . . . All that matters is that the prosecutor’s reason
for exercising the peremptory challenge is sincere and legitimate,
legitimate in the sense of being nondiscriminatory.’ ” (People v.
O’Malley (2016) 62 Cal.4th 944, 975.)
Here, we find the prosecutor’s explanations for excusing
each of these jurors to be both plausible and supported by the
record. The district attorney explained that Prospective Juror
No. 4101’s responses to questions about legal crime dramas
suggested to him that the juror might expect the police and
prosecution to devote the same level of resources to this case as is
portrayed in fictional crime dramas. Even if the prosecutor’s
perception was not entirely accurate, the explanation does not
demonstrate purposeful discrimination. “Where the record
suggests that a mistake may underlie the prosecution’s exercise
of a peremptory challenge, ‘ “we rely on the good judgment of the
trial courts to distinguish bona fide reasons . . . from sham
excuses belatedly contrived to avoid admitting acts of group
discrimination,” ’ and ‘give great deference to the trial court’s
determination that the use of peremptory challenges was not for
an improper or class bias purpose.’ ” (People v. Manibusan (2013)
58 Cal.4th 40, 78.) The trial court thus properly accepted the
prosecutor’s concern that a juror might hold the prosecution to
the standards of investigation and evidence collection depicted in
such programs to be a legitimate nondiscriminatory reason to
excuse Prospective Juror No. 4101.
The prosecutor also stated that he tends not to favor
university employees as jurors. The Supreme Court has held that
9
a juror’s employment background may provide a reasonable
nondiscriminatory justification for exclusion. (People v. Watson
(2008) 43 Cal.4th 652, 677.) Finally, both the trial court and the
prosecutor noted that the juror who replaced No. 4101 was also
African-American, and the prosecutor had accepted the panel
with two African-American jurors. While not dispositive of a
nondiscriminatory motive for the strike, this circumstance is “ ‘an
indication of the prosecutor’s good faith in exercising his
peremptories,’ ” and tends to support the trial court’s credibility
assessment of the prosecutor’s justification. (People v. Dement
(2011) 53 Cal.4th 1, 20, overruled in part on other grounds in
People v. Rangel (2016) 62 Cal.4th 1192, 1216, quoting People v.
Snow (1987) 44 Cal.3d 216, 225; see also Lenix, supra, 44 Cal.4th
at p. 614.)
As for Prospective Juror No. 6121, the district attorney
explained that he exercised his strike because two of the four
cases on which she had previously served as a juror had resulted
in mistrials. Our Supreme Court has recognized that “the
circumstance that a prospective juror has previously sat on a
hung jury is a legitimate race-neutral neutral reason for
exercising a strike.” (People v. Manibusan, supra, 58 Cal.4th at
p. 78.) The trial court thus properly accepted the prosecutor’s
justification in this instance.
II. Prosecutorial Misconduct
Appellant contends the district attorney committed
prejudicial misconduct in his rebuttal argument by misstating the
law and improperly shifting the burden of proof to defendant. We
disagree.
In rebuttal the prosecutor argued: “The defense also tried
to bring in grandma. We don’t really have to talk about her fraud
conviction but what you can focus on is the fact that she can’t, she
10
can’t say that he didn’t do it. She can’t say that she was with him
at the time. She can’t say you know why because the only ones
who can say they were with him were those other guys who were
also committing the robbery with him. Grandma can’t say that.
And she knows and you know that she can’t. Also she can’t
explain why the officer finds him running down that path.”
Defense counsel objected that the prosecutor was trying to shift
the burden of proof. The trial court overruled the objection,
stating, “The jury will follow my legal instructions.”
Next, the district attorney argued, “The defendant wants
you to say, oh, you know what no DNA, no DNA and they harped
on that and as [defense counsel] also actually mentioned, I asked
Detective Kloss, Detective Kloss is the DNA able to be tested by
both sides” These comments drew the same objection from
defense counsel with the same ruling from the court. The
prosecutor continued: “As [defense counsel] said in her closing
both sides are able to test it. Detective Kloss gave you a reason,
his honest reason for why he didn’t you have to make a call, but
the fact of the matter is that if this information was so important
it’s available to both sides.”
Finally, the prosecutor returned to the theme of the
evidence supporting a conviction that the defense could not
explain: appellant’s presence on Obisbo and 11th Streets,
sweating and carrying a heavy sweater on a hot summer night;
appellant’s sudden disappearance and reappearance on the street
where the suspect had fled when police were trying to track him;
and the lack of any equivocation on the part of the witnesses who
identified appellant in the field show-up.
Appellant maintains that by repeatedly criticizing the
defense for failing to provide an innocent explanation for the
evidence against him, the prosecutor impermissibly shifted the
11
burden of proof from the prosecution to the defense. The error
was prejudicial, he asserts, because it led to confusion of the jury
about the reasonable doubt standard as evidenced by the jury’s
request for further definition of the standard during
deliberations.5
As our Supreme Court has often explained, “ ‘it is improper
for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its prima
facie obligation to overcome reasonable doubt on all elements
[citation].’ [Citation.] Improper comments violate the federal
Constitution when they constitute a pattern of conduct so
egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process. (People v. Hill (1998) 17
Cal.4th 800, 819.) Improper comments falling short of this test
nevertheless constitute misconduct under state law if they
involve use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury. (Ibid.) To establish
misconduct, defendant need not show that the prosecutor acted in
bad faith. (Id. at p. 822.)” (People v. Cortez (2016) 63 Cal.4th 101,
130.) Rather, “[w]hat is crucial to a claim of prosecutorial
misconduct is not the good faith vel non of the prosecutor, but the
potential injury to the defendant. [Citation.] When . . . the claim
focuses on comments made by the prosecutor before the jury, a

5 After deliberating for nearly two hours, the jury
submitted the following request to the trial court: “We need a
definition of ‘reasonable doubt’ we have jurors who believe
because they are not 100 percent sure, they have reasonable
doubt.” The trial court responded by referring the jury to the
definition of reasonable doubt in CALJIC No. 2.90.
12
court must determine at the threshold how the remarks would, or
could, have been understood by a reasonable juror.” (People v.
Benson (1990) 52 Cal.3d 754, 793; Cortez, supra, at p. 130.)
“When attacking the prosecutor’s remarks to the jury, the
defendant must show that, ‘[i]n the context of the whole
argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning
from the prosecutor’s statements.’ ” (People v. Centeno (2014) 60
Cal.4th 659, 667.) We also consider “ ‘ “whether the prosecutor’s
comments were a fair response to defense counsel’s remarks.” ’ ”
(People v. Seumanu (2015) 61 Cal.4th 1293, 1337; People v.
Chatman (2006) 38 Cal.4th 344, 386 [“Defendant’s challenges to
rebuttal must be evaluated in light of the defense argument to
which it replied”].)
Appellant contends that the prosecutor’s comments on the
grandmother’s testimony, appellant’s failure to provide an
innocent explanation for much of the evidence against him, and
the failure of the defense to conduct its own DNA tests were
intended to (and did) shift the burden of proof to the defense. Not
so. Contrary to appellant’s assertion, the prosecutor’s comments
during rebuttal argument did not suggest to the jury that the
defense bore any burden of proof. Rather, with regard to all three
instances of alleged misconduct, the district attorney’s remarks
consisted of nothing more than fair comment on the state of the
evidence and a reasonable response to appellant’s alibi defense
and defense counsel’s own closing argument.
Appellant attempted to present an alibi defense through his
grandmother’s testimony that he was at her house sometime
13
during the evening of June 29, 2014. By pointing out that the
grandmother’s testimony had not provided appellant with an
actual alibi because the grandmother could not specify the time
appellant was with her, the district attorney simply made a fair
comment on the state of the evidence, which the prosecution is
entitled to do. (People v. Cook (2006) 39 Cal.4th 566, 608.)
Similarly, the prosecutor was entitled to highlight and
comment on evidence presented at trial to which no objection was
made or sustained. Here, Detective Kloss testified without
objection that the defense could have performed DNA tests on the
evidence, even though neither he nor the prosecutor had ordered
such tests.
The prosecutor was also entitled to rebut the defense
argument that the entire case against appellant was built on
nothing more than flawed field identifications, which could not
stand up to various inconsistencies in the prosecution’s case. In
so arguing, defense counsel had offered several innocent
characterizations of the evidence that suggested reasonable
doubt. In response, the prosecutor appropriately highlighted the
reasonable and innocent explanations the defense had omitted
from its argument.
A prosecutor has wide latitude during argument, which
“ ‘ “ ‘may be vigorous as long as it amounts to fair comment on the
evidence, [and] can include reasonable inferences, or deductions
to be drawn therefrom.’ ” ’ ” (People v. Martinez (2010) 47 Cal.4th
911, 957; People v. Williams (1997) 16 Cal.4th 153, 221.) In this
regard, “[a] distinction clearly exists between the permissible
comment that a defendant has not produced any evidence, and on
the other hand an improper statement that a defendant has a
duty or burden to produce evidence, or a duty or burden to prove
his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229,
14
1340.) Here, the district attorney’s rebuttal in response to the
defense closing argument neither crossed the line into prejudicial
prosecutorial argument, nor shifted the burden of proof to the
defense. Accordingly, we find no prosecutorial misconduct
occurred.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.