P. v. Dillard

Filed 7/19/07 P. v. Dillard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Bruce Dillard, Sr. (appellant) of petty theft (Pen. Code,  484, subd. (a)).^[1] Appellant admitted a prior petty theft conviction, which elevated the current conviction to a felony. Appellant also admitted that he had suffered a prior serious or violent felony conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served three prior prison terms. The trial court sentenced appellant to a total prison term of seven years, consisting of the midterm of two years for the petty theft conviction, doubled pursuant to his prior strike, plus three consecutive one-year terms for his prison priors.

Appellant contends the trial court erred when it denied his Wheeler/Batson^[2] motion, and that he received ineffective assistance of counsel. We disagree and affirm the conviction.

FACTS

In the afternoon of May 4, 2005, appellant entered a Sears department store in Clovis. He immediately caught the attention of store security personnel because he was wearing a large jacket and sunglasses. He also walked quickly and looked around frequently. Marissa Rodriguez, Nicole Jensen, and John Finkiewicz, all Sears security personnel, observed appellant take a $279.99 nail gun out of its box and put it inside his jacket. Without paying for the nail gun, appellant walked out of the store into the adjoining mall. He was apprehended outside the store. Appellants actions were recorded by a surveillance video, which was played for the jury.

DISCUSSION

1. Did the trial court err when it denied appellants Wheeler/Batson motion?

Appellant is Black. During the second day of jury selection, prospective juror Mr. 24the only Black juror on the panelstated that he had lived in Fresno all of his life, was not currently employed, and had completed high school. He had never served on a jury and did not know anyone in law enforcement, but he had been the victim of a crime. When asked if having been the victim of a crime would affect his ability to be a fair juror, Mr. 24 stated, I dont know. It might. But then again, it might not. I mean, I still kind of like have nightmares from that. Mr. 24 explained that he had tried to break up a fight between two girls, and when he walked away, they busted me over the head with a bottle of glass.

Appellants defense counsel then questioned the prospective jurors and asked, [I]f you were my client, would anybody feel uncomfortable having yourself as a juror? Mr. 24 raised his hand and stated, Well, its like sort of like I talked about. Its like Im not used to that kind of thing so its like I probably would feel uncomfortable. The prosecutor followed up on that question and asked Mr. 24 to further explain his response. Mr. 24 stated, Yeah, the nature of my handicap. The prosecutor, who was in possession of additional information from an in-chambers meeting with Mr. 24 the previous evening, immediately stated, No need to go any further.

Later, the prosecutor exercised his fifth peremptory challenge to excuse Mr. 24. When defense counsel objected, the trial court recessed the other jurors but asked Mr. 24 to stick around.

In chambers, the trial court explained, for the record, that Mr. 24 had been one of the jurors who had asked to speak privately the previous evening. At that time, Mr. 24 informed the court and counsel that he could not read or write, that he had a bad memory and suffered a handicap regarding his mental facilities. Although Mr. 24 had a drivers license, he had obtained it through some sort of a special test. Mr. 24 explained that he simply forgot things; he was not able, for instance, to follow driving directions involving more than two turns. The court noted that Mr. 24 was unemployed and on disability. It was also noted that the case did not entail an examination of documentary exhibits, but there was some concern that Mr. 24 would not be able to read the written jury instructions. The court noted, however, that it had concluded the previous evening that Mr. 24 was not subject to removal for cause.

In his Wheeler/Batson^[3] motion, defense counsel argued that Mr. 24 was the only Black juror on the panel, and that, aside from the fact that he stated he had graduated from high school and had a disability, no other questions were asked of him. Defense counsel believed a prima facie case of discrimination had been shown, particularly since the prosecution had made only a limited inquiry of Mr. 24.

The trial court noted that Mr. 24 had volunteered a substantial amount of information the previous day in chambers. He also had indicated earlier in court that if he were in [appellant]s seat, he would not want himself as a juror. The prosecutor, while acknowledging that Mr. 24 was a member of a cognizable group, did not agree with defense counsels characterization of the inquiry of Mr. 24 as limited.

The trial court denied appellants motion, stating,

Ive observed the use of the peremptory challenges. Ive observed Mr. [24]. We have Mr. [24s] comments in the record, and the Court, again, being particularly sensitive to the fact that hes apparently the only African-American, the Court does not find that the record as it is known by the Court and has been placed on the record is such to give rise to an inference of discriminatory purposes.

The trial court allowed the prosecutor to set forth in the record his reasons for exercising his challenge, which the prosecutor stated were: (1) Mr. 24s reluctance to have himself as a juror; (2) that Mr. 24 was the only juror in the box who did not make eye contact with defense counsel until he was spoken to directly; (3) that Mr. 24 had been a victim of a crime, which seemed to have affected him; (4) that the trial court had had to prompt Mr. 24 with the jury questionnaire, because he could not read; (5) that Mr. 24 was unable to read the jury instructions or verdict forms, or to serve as the jury foreperson because of his inability to read; and (6) that, after running each prospective jurors name through the records, the prosecutor discovered someone with the same name as Mr. 24 who was arrested in 1987 on petty theft charges, the nature of the offense charged here.

On appeal, appellant contends the trial court committed reversible error when it found he did not make a prima facie case of exclusion of the only Black juror on the basis of his race, because the juror was neutral and his disabilities could have been accommodated. We disagree.

The use of peremptory challenges to remove prospective jurors solely on the ground of presumed group bias violates both the state and federal Constitutions. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Johnson, citing Batson, sets forth a three-step process to guide a trial courts constitutional review of peremptory challenges.

First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (Johnson v. California, supra, 545 U.S. at p. 168, fn. omitted.)

To establish a prima facie case,

the defendant first must show that he is a member of a cognizable racial group [citation], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendants race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. [Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. (Batson, supra, 476 U.S. at p. 96.)

In deciding whether the defendant has made a prima facie case, the trial court should consider all the relevant circumstances. (Batson, supra, 476 U.S. at p. 96.) Illustrative examples of such circumstances include a pattern of discrimination against racial minorities, the impact of the prosecutions challenge on the composition of the jury, and the prosecutors questions and statements during jury selection. (Id. at p. 97; U.S. v. Vasquez-Lopez (9th Cir. 1994) 22 F.3d 900, 902.) While the Constitution forbids striking even a single prospective juror for a discriminatory purpose (U.S. v. Lorenzo (9th Cir. 1993) 995 F.2d 1448, 1453-1454), striking the only Black juror from the venire does not, by itself, raise an inference of discrimination and, without more, is not per se unconstitutional. (U.S. v. Vasquez-Lopez, supra, 22 F.3d at p. 902.)

If the trial court denies the motion without finding a prima facie case of group bias, the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial courts ruling. (People v. Howard (1992) 1 Cal.4th 1132, 1155.) Because Wheeler motions call upon trial judges personal observations, appellate courts review their rulings with deference on appeal. If the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm. (Ibid.; People v. Box (2000) 23 Cal.4th 1153, 1188.) The ruling is, in essence, reviewed for substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 196.)

We have reviewed the record to determine whether, under all the relevant circumstances, a reasonable inference is raised of racial discrimination. There is no dispute that Blacks are a cognizable group for purposes of Wheeler and Batson (People v. Clair (1992) 2 Cal.4th 629, 652), and that both appellant and Mr. 24 are Black. But the mere fact that Mr. 24 is Black is insufficient alone to raise an inference of discriminatory purpose. (People v. Box, supra, 23 Cal.4th at pp. 1188-1189; People v. Turner (1994) 8 Cal.4th 137, 167, abrogated on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) The only additional factors stressed by appellant were that (1) Mr. 24s handicaphis illiteracy and memory problemscould be accommodated, and (2) only limited inquiry had been made of the juror.

But, having reviewed the record on appeal, we find substantial evidence to support the trial courts finding that appellant failed to establish a prima facie case of purposeful discrimination. (People v. Box, supra, 23 Cal.4th at p. 1188.) Contrary to appellants assertion, the record does not reveal that Mr. 24s answers were completely neutral. Mr. 24 was the only juror who expressed a reluctance to have himself as a juror (People v. Panah (2005) 35 Cal.4th 395, 441-442 [reluctance or reservation to serve as juror is race-neutral reason for peremptory challenge]); he had been the victim of a crime^[4] (People v. Fields (1983) 35 Cal.3d 329, 348 [persons previously arrested, crime victims, believers in law and order, etc. are not identifiable groups whose representation is essential to a constitutional venire]); and he had difficulty with the jury questionnaire, was unable to read or write, and expressed concern about his ability to remember things (People v. Turner, supra, 8 Cal.4th at p. 169 [where a prosecutors concern for a jurors ability to understand is supported by the record, it is a proper basis for challenge]).

Although we need not review the adequacy of counsels justifications for a peremptory challenge if we find that the trial court properly determined that no prima facie case was made (People v. Turner, supra, 8 Cal.4th at p. 167), we find the additional reasons mentioned by the prosecutor also to be race-neutral. Namely, Mr. 24 was the only juror who failed to make eye contact with defense counsel until spoken to directly (People v. Reynoso (2003) 31 Cal.4th 903, 917 [peremptory challenge based on prosecutors personal observations and impressions are proper]); and there was some question whether Mr. 24 had been arrested for petty theft, the nature of the offense at issue here (People v. Fields, supra, 35 Cal.3d at p. 348).

On this record, we find no evidence to support an inference of bias. We therefore conclude substantial evidence supported the trial courts finding of no prima facie showing of discrimination, and appellants Wheeler/Batson motion was properly denied.

2. Was appellant denied effective assistance of counsel?

Appellant contends he was denied effective assistance of counsel in that counsel failed to cross-examine any witnesses, conceded the most important elements of the theft offense, and failed to present a legally valid defense theory. We find no prejudice and disagree.

As a preliminary matter, we note that, at the conclusion of evidence and out of the presence of the jury, the prosecutor raised a concern which, apparently, he had also done earlier in chambers: that defense counsel had not cross-examined any of the witnesses and had not requested any jury instructions, other than CALCRIM No. 220 and attempt instructions, the latter of which the court declined to give. The prosecutor asked that the trial court conduct an inquiry to forestall an ineffective assistance of counsel claim on appeal. The trial court stated that defense counsel had conducted voir dire in an appropriate manner, and his objections, discussions or disagreements were respectful and properly raised. And, although the court was surprised as well that defense counsel chose not to cross-examine witnesses, it did understand that defense counsel did not wish to indicate certain things which might give away his trial strategy. (The trial court stated that it would be ill advised to inquire of counsel as to why they chose to do something. The trial court explained further that, had defense counsel appeared to be sleepy, ill, distracted, or in some other fashion, I would most certainly inquired, probably on the record, out of the presence of the jury, if he felt he was able to go forward. But trial strategy is not among them.

A. Applicable law

To prevail on a claim of ineffective assistance of counsel, appellant must show counsels representation fell below an objective standard of reasonableness, and the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Further, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (Id. at p. 697.) Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Sanchez (1995) 12 Cal.4th 1, 41.)

If an attorneys performance is so utterly deficient that it fails to subject the prosecutions case to meaningful adversarial testing, prejudice will be presumed. (United States v. Cronic (1984) 466 U.S. 648, 659.) But the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. (Id. at p. 656, fn. 19.)

A reviewing court will not second-guess a trial counsels reasonable tactical decisions. (People v. Riel (2000) 22 Cal.4th 1153, 1185.) Moreover, it is well-settled that trial counsel is not required to make tactical decisions, undertake futile acts, or file meritless motions simply to withstand later claims of ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.)

With these standards in mind, we turn to appellants assignments of ineffective assistance.

B. Failure to cross-examine witnesses

The prosecutor called witnesses Rodriguez, Jensen, and Finkiewicz, all Sears employees, and police officer Louie Duran, who took appellant into custody. The three Sears employees all testified that they witnessed appellant take the nail gun out of its packaging, place it under his jacket, and walk out of the store. Officer Duran testified that he arrested appellant on May 4, and went back to the store to collect the videotape on May 9. Appellant contends defense counsel was ineffective when he failed to cross-examine any of these witnesses and attempt to impeach their testimony, challenge their recollections and perceptions, or test their credibility or recollection.

The cross-examination of witnesses is a matter falling within the discretion of counsel, and it rarely provides an adequate basis on appeal for a claim of ineffective assistance of counsel. (People v. Williams (1997) 16 Cal.4th 153, 217; People v. Cox (1991) 53 Cal.3d 618, 662.) Because appellant fails to disclose what evidence, if any, counsel might have elicited had he cross-examined the witnesses, his claim of inadequate assistance does not succeed.

C. Concession of element of theft offense and failure to present a legally valid defense theory

Appellant next argues that defense counsel, in closing argument, improperly conceded an element of the theft offense and failed to present a legally valid defense theory.

Prior to closing, the trial court instructed the jury that in order to find appellant guilty of petty theft, it had to find that: (1) appellant took possession of property owned by someone else; (2) appellant took the property without the owners consent; (3) when appellant took the property, he intended to permanently deprive the owner of possession; and (4) appellant moved the property, even a small distance, and kept it for any period of time however brief.

During closing, defense counsel stated that he was not going to sit here and tell you that thats not [appellant] on the tape, but that appellant has not committed the offense charged by the People. Defense counsel argued:

There are elements to this offense, and each and every one of those elements must be proven beyond a reasonable doubt, each and every one. And youre gonna have the jury instructions that lay out those elements. And Im confident when you look at those elements, youll agree that [appellants] guilt as to the crime charged has not been proven beyond a reasonable doubt. The jury instruction that deals with the elements is jury instruction 1800, and I take issue with two. Element number one is did [appellant] take possession of the property. Element number two is did he take possession of the property without the owners consent. Element number three is when he took possession of the property, did he intend to deprive Sears of it. And four is [appellant] moved the property. This is what I take issue with, what the definition of possession is. And I believe that the Peoples argument is that one and four are the same. Element one and element four are not the same element. One thing thatand Ill get to that in just a second why theyre not the same, but first I want to comment on the evidence, what the essence of our defense is. See, the crime is wrongfully charged. This is not a theft. This is an attempted theft, but the People have chosen not to charge that, not to give you that as a crime to decide on. Instead youre simply asked to decide whether or not a theft occurred. I found it very interesting that each witness called by the People, each and every one, testified that [appellant] exited the store. Each one testified to that. But the evidence is clear, direct evidence, and Im confident when you watch that tape youll agree that at no time did [appellant] leave Sears, at no time. []  When you [l]ook at that tape, its at the very end, it will be clear that [appellant] never exits the store. At no time. And this connects to element one and element four, the distinction between possession and movement.

Defense counsel then gave his own wallet as an example, stating that it does not become [someone elses] possession just because another person picks it up. He also gave the example of someone placing a food item into a basket at a supermarket as not having that item in their possession.

Defense counsel argued that appellant was guilty of something, but he was not guilty of the crime charged. Defense counsel continued:

Youre here to decide whether or not [appellant] is guilty of the crime he is charged with. And it seems very clear to me when I look at that tape that he moved the property, that he looked around, it looks to me like he has the intent to steal it. Im not going to sit up in here and say that element isnt met, number three, but he did not deprive Sears of possession.

In conclusion, defense counsel stated:

Thank you in advance for requiring the prosecution to prove its case beyond a reasonable doubt as to each and every element, not that one element can affect two. Theyre there for a reason. Theres four for a reason. Not three, but four. Thank you for requiring them to prove all four. Thank you in advance for applying the clear meaning of the words in that instruction. Theres clear meaning. The word possession doesnt change.

In rebuttal, the prosecutor argued to the jury that it didnt hear a jury instruction that says someone has to leave a store to steal and replayed a portion of the videotape, which showed appellant leaving Sears and entering the mall.

Appellant contends first that defense counsel was ineffective in closing argument because he conceded that appellant had the intent to steal the nail gun. It is well-established that defense counsel must not argue against his or her client in closing argument. (People v. Lucas (1995) 12 Cal.4th 415, 446.) But the decision about how to argue to the jury after the presentation of evidence is inherently tactical (People v. Freeman (1994) 8 Cal.4th 450, 498), and the admission of the defendants guilt in closing argument may not be ineffective based upon all the evidence presented at trial (see People v. Bolin (1998) 18 Cal.4th 297, 334). Closing argument is as much an art as a science . Counsel must establish as much credibility with the jurors as possible if his effort to persuade them is to succeed. (People v. Fairbank (1997) 16 Cal.4th 1223, 1251; see also People v. Mayfield (1993) 5 Cal.4th 142, 177.) If overwhelming evidence of guilt exists, it may not be incompetent for an attorney to concede his or her clients guilt of a particular offense in situations where good trial tactics demand complete candor with the jury. [I]t is entirely understandable that trial counsel [would make] no sweeping declaration of his clients innocence but instead adopt[] a more realistic approach . (People v. Lucas, supra, at p. 447.) Additionally, [i]t is within the permissible range of tactics for defense counsel to candidly recognize the weaknesses in the defense in closing argument. [Citations.] (People v. Jones (1991) 53 Cal.3d 1115, 1150.)

To prevail on a claim that counsels concessions during closing argument constituted ineffective assistance, a defendant must overcome the strong presumption that counsels actions were sound trial strategy under the circumstances prevailing at trial. (In re Jones (1996) 13 Cal.4th 552, 561-562; People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) Here, it would have strained credibility for counsel to challenge the video evidence showing appellant taking the nail gun out of its packaging and placing it under his jacket. Also, there was eyewitness testimony from three Sears employees who all observed appellant doing the same. Counsels entire defense was that appellant, although he had taken the nail gun, did not actually possess the item because he did not take it out of the store, and that, although he may have been guilty of attempted theft, with which he was not charged, he was not guilty of theft.

Even were we to find counsel was ineffective for conceding as he did, appellant suffered no prejudice. Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense. (People v. Moore (1988) 201 Cal.App.3d 51, 57.) But where evidence of the defendants guilt is overwhelming, no prejudice is suffered. (People v. Avena (1996) 13 Cal.4th 394, 422-423.)

This leads us to appellants final argument, which is that defense counsel relied on a defense unfounded in law, in essence conceding his guilt. In this regard, appellant is correct that it is not necessary to exit a store with the subject property in order to be guilty of theft. (People v. Davis (1998) 19 Cal.4th 301, 305; People v. Shannon (1998) 66 Cal.App.4th 649, 654.) Further, [i]t has been held that where counsel fails to argue in support of evidence showing a lawful defense, and instead argues a theory not recognized as a lawful defense, and upon which the jury will receive no instructions, counsel has incompetently deprived his client of a potentially meritorious defense and has effectively conceded his clients guilt. (People v. Diggs (1986) 177 Cal.App.3d 958, 970, and cases cited therein.)

In Diggs, however, defense counsel not only tender[ed] a nondefense to the jury but, also, did so in contravention of his clients testimony showing a lawful defense. (People v. Diggs, supra, 177 Cal.App.3d at p. 967.) Here, unlike in Diggs, it is difficult to imagine what counsel could have argued in support of evidence showing a lawful defense. There simply was no such evidence. (Cf. People v. Hart (1999) 20 Cal.4th 546, 630-631 [We have rejected claims in other cases involving concessions made by defense counsel in closing argument, where the incriminating evidence was strong and counsel offered some other choice in the defendants favor].)

Defense counsel here, similar to the attorney in Hart, conceded a point in light of incriminating evidence and offered a different choice in appellants favor. That the possession theory was improper does not change our analysis. Defense counsel merely picked an improper defense that appealed to the passion of the jury over the option of trying to refute overwhelming evidence of theft. As stated in Hendricks v. Calderon (9th Cir. 1995) 70 F.3d 1032, 1042, The choice to pursue a bad strategy makes no comment on an attorneys judgment where no better choice exists.

But, in any event, even were we to find defense counsels reliance on the nondefense or improper defense presented here to be ineffective assistance, we would not find that appellants conviction must be reversed. As noted numerous times, the evidence against appellant was overwhelming. The result would not have been different had counsel not presented the nondefense.

DISPOSITION

The judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

LEVY, Acting P.J.

_______________________________

CORNELL, J.

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^[1]All further statutory references are to the Penal Code unless otherwise stated.

^[2]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).

^[3]The trial court noted that a Wheeler/Batson motion is now also referred to as a Wheeler/Batson/Johnson motion, citing to Johnson v. California (2005) 545 U.S. 162 (Johnson).

^[4]Appellant claims the prosecutor failed to excuse several other jurors who were crime victims also, noting specifically Ms. 18. But Ms. 18 was excused by defense counsel before the prosecutor excused Mr. 24.