P. v. Miles

Filed 9/26/07 P. v. Miles CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Armstrong, Judge. (Retired judge of the Los Angeles Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of four counts of selling cocaine base (Health & Saf. Code, 11352, subd. (a)). He was sentenced to prison for five years, four months^[1]and appeals, claiming his Wheeler/Batson motion was erroneously denied and sentencing error occurred. We reject his contentions and affirm.

Facts

During a police narcotics buy program, once on March 10, 2005, and three times on April 5, 2005, defendant was filmed selling rock cocaine to undercover officers.

Issues and discussion

1. Denial of Defendants Wheeler/Batson Motion

Prospective Juror Sanchez stated during voir dire that he work[s] with troubled kids that get out of jail and those who stop them from going to jail. Immediately after the prosecutor exercised a peremptory challenge against him, defense counsel made a Wheeler/Batson motion. The discussion between him, defense counsel and the trial court concerning this motion was at a side bar, which was not reported. At the conclusion of the discussion, the trial court denied defendants motion.

During the next court day, defense counsel noted that because the hearing on her motion had not gotten reported, she would reconstruct it for the record. She said that Sanchez was, at the time of her motion, the only African-American amongst the prospective jurors and she did not see any reason why he was [excused] that was not racially based. The prosecutor confirmed her account of the underlying facts and said that he had pointed out, presumably during the unreported side bar, that his reason for excusing Sanchez was the latters job that [he] stated he was involved with troubled . . . kids, people coming through the system, trying to help them get straight, get out. I felt he would be too sympathetic towards people with criminal backgrounds or criminals in general. The court reiterated its denial, saying I dont think [challenging a minority member] automatically gives rise to a Wheeler [motion] simply because of the fact that a very small minority are excluded. When defense counsel noted for the record that the prosecutor had not questioned Sanchez further about his job, the trial court said, I dont think it was necessary for him to explore it since the juror had set forth . . . his background . . . . Once the [prosecutor] ma[de] note of something that [wa]s disturbing to him, he d[idnt] have to go into any more depth on the matter to justify his exclusion.^[2]

Defendant here challenges the denial of his Wheeler/Baston motion. Of course, we do not know whether the trial court made the initial determination that the defense had made a prima facie showing of improper use of a peremptory, or whether, despite the absence of such a finding, it either asked the prosecutor for or the prosecutor volunteered his reason for using the challenge. Therefore, we will assume, for purposes of argument that the trial court concluded that such a prima facie showing had been made.^[3] (See People v. Lewisand Oliver (2006) 39 Cal.4th 970, 1010.) Thus, we review the trial courts ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the courts ability to distinguish bona fide reasons from sham excuses. [Citation.] As long as the court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Ibid.] (Lewis and Oliver, supra, 39 Cal.4th at p. 1009.)

Although defendant contends that the prosecutors failure to further question Sanchez about his employment shows his reason for excusal was discriminatory, as the trial court pointed out, there was no reason for such exploration. Sanchez clearly stated that he was a person who worked with young people who were facing incarceration. It was completely logical for the prosecutor to assume that such a person would be more sympathetic to a young person facing incarceration, as was defendant.^[4] (See People v.Reynoso (2003) 31 Cal.4th 903, 923 (Reynoso).) While Miller-El v. Dretke (2005)__U.S.__[125 S.Ct. 2317, 2325, 162 L.Ed. 196] (Miller-El) holds that the prosecutors failure to engage in any meaningful voir dire examination of a subject [he] alleges [he] is concerned about is evidence suggesting that the explanation is a sham we agree with the trial court that the prosecutor further questioning Sanchez about his job would not have been meaningful.^[5]

Moreover, despite defendants suggestion, the absence of such questioning does not mean that the explanation is a sham it is merely a factor for the trial court, and, ultimately this court, to consider.

Defendant points to what he suggests are indicators that bolstered the defenses prima facie showing, which, we presume, means that the prosecutors explanation was a sham. First, he states the prosecutor indicated his full awareness that [defendant] was African-American. This fact was evident when the prosecutor first reviewed the file on this case. If not, certainly when defense counsel made his motion, stating that the prosecutor was excusing the only African-American then amongst the prospective jurors, the prosecutor knew. Next, he points to the fact that Sanchez made no statements during voir dire that could be construed as indicating that he would not be impartial. However, this was not the reason the prosecutor offered for using his preemptory.

As to defendants contention that the trial court did not say that the prosecutor carried his ultimate burden of showing his reason was race-neutral, we note that the post-motion reiteration was only a summary of what occurred during the unreported hearing on the motion, and [T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors race-neutral reason for exercising a preemptory challenge is being accepted by the court as genuine. (Reynoso, supra, 31 Cal.4th at p. 919.)^[6] The fact that the trial court referred to the motion as a Wheeler motion, rather than as a Wheeler/Batson motion, did not, as defendant asserts, suggest that the court was ignoring the three steps of Batsons federal constitutional rule.^[7] The three steps are missing from the record because the hearing on the motion is missing from the record. If the trial court missed any of the steps, defense counsel should have put this fact on the record.

There was substantial evidence in the record supporting the trial courts ruling. Defendant was 21 at the time these crimes were committed.^[8] While, as defendant points out, there was no way this jury would have learned that he had a criminal background, the prosecutors comment applied to anyone accused of a crime or facing incarceration, which defendant clearly was.

2. Sentencing

a. Denial of Probation

After considering the probation report and the parties arguments concerning the propriety of granting probation,^[9]the trial court denied it and imposed a prison sentence saying, [I]n order for me to grant probation, I have to find unusual circumstances, and I cant find any unusual circumstances.  . . . [Defendant] was simply out on the street trying to make as much money as he could selling illicit drugs regardless of who the buyer might be or what damage might be done to the consumer. Typical drug dealers dont care about . . . the consequences. And its a serious offense, and I cant find any unusual circumstances.

Although defendant here contends that the trial court failed to exercise its discretion[,] in truth, he simply does not like the end result of the courts exercise of its discretion. The fact that the trial court did not mention the two bases upon which it might have found that this was an unusual case, i.e., defendants youth and the fact that his prior record was relatively insignificant, does not mean the court did not consider them. As already noted,^[10]both the probation report and the argument of both counsel brought these matters to the courts attention. Defendant, himself, concedes that the court was plainly aware that an unusual case contention was before it[.]

Next, defendant contends explicitly what he has already implied, i.e., that the trial court abused its discretion in determining this was not an unusual case. Defendant cites the statements he made to the probation officer that he was committing the crimes merely to support the baby he was expecting, that selling drugs was not his lifestyle, but a big mistake and that hed never do it again. The probation report also states that defendant would be willing and able to abide by the terms of probation, and incarcerating him would have a serious effect on him. We also note that defendant indicated in the probation report that his wife was employed as an assistant manager for a cell phone company.^[11] Despite the fact that they had been married since 2002, she was staying with her sister in Fontana and he was living on the streets at the time the crimes were committed.^[12] The probation report also states that defendants prior performance on juvenile probation was unsatisfactory and he was on summary probation when he committed these offenses, neither of which defendant disputed below nor does so here. The probation officer noted that, [t]hough . . . defendant verbalized [that] he recognized the seriousness of his unlawful conduct, he still seemed to minimize what he had done, implying that he had no choice but to do this, as he had no income at the time.

Defendant criticizes the probation report for failing to mention that his incarceration would have a serious impact on his family because he was the breadwinner. However, this assertion ignores the facts that his wife was employed as

an assistant manager. Defendant did not graduate from high school, his last employment was an assembly job for minimum wage at a temporary agency for two months, and he had not worked since before the crimes were committed. He and his wife had lived with her mother and sister throughout their courtship and marriage. Therefore, it appears that his wife is the stronger candidate for being the breadwinner in the family.

Defendant contends that his probation officer did not sufficiently credit his clear expression of remorse. However, the report states only that defendant stated that he felt he made a bad mistake by committing the crimes. There is no clear expression of remorse in the report and if defendant made one, it was incumbent on his trial counsel to bring it to the sentencing courts attention.

Defendant also asserts that the nature of his crimes were not serious in that he was not armed and the quantities he sold were small. Of course, the court below was well aware of these facts, having sat through the trial. Whether defendant was armed during the first two sales can never be determined because he was not arrested following them. He was dealing drugs out of an apartment complex where his uncle lived and the Elm Street gang operated, in an area where numerous drug transactions were occurring. Whether he needed to be armed under these circumstances is unclear.

He also contends that his crimes did not demonstrate criminal sophistication or professionalism, as the report concluded. However, the prosecution experts testified at trial that one could not sell drugs out of the apartment complex where defendant operated, without permission from the gang. Although the jury concluded that the prosecutor had not proven beyond a reasonable doubt that defendant sold drugs to benefit the Elm Street gang, the sentencing court could still determine, based on the experts testimony, that defendants crimes were not amateurish.

b. Consecutive Sentence

The sentencing court imposed a consecutive term for the second offense (it stayed the terms for the third and fourth pursuant to Pen. Code, 654) without stating reasons. However, defendants failure below to object to this forecloses his current claim that a consecutive term was improper. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).)

Defendants reliance on Scott and People v. Welch (1993) 5 Cal.4th 228 to support a contrary conclusion is misplaced. Scott could not have been more clear when it held that the waiver doctrine should apply to claims involving the trial courts failure to [state any reasons for its] discretionary sentencing choices. (Scott, supra, 9 Cal.4th at p. 353.) On the page cited by defendant in support of his argument, Scott commented, [A] sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.]  . . .  It does not follow, however, that nonwaivable error is involved whenever a prison sentence is challenged on appeal. [Citation.] [] [C]laims deemed waived on appeal involve sentence which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. In Welch . . .for example, we held that a contemporaneous objection is required when the court grants probation . . . under conditions believed to be unreasonable.  . . . [We commented,] [Defendant] essentially argues only that the court exercise its otherwise lawful authority in an erroneous manner under the particular facts . . . . []  . . .  []  . . . Much like the probation conditions . . . in Welch, fact-specific errors in the courts statement of reasons are not readily susceptible of correction on appeal. The reviewing court cannot substitute its reasons for those omitted . . . by the trial court . . . . (Id. at pp. 354-355.)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

KING

J.

MILLER

J.

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^[1] We note that in sentencing defendant, the trial court orally stated that the sentence for count two was 14 months, but it went on to impose a total term of 5 years, 4 months, meaning the sentence for that count had to be 1 year, four months, as the abstract and minutes of the sentencing hearing state.

^[2] During oral argument, appellate counsel for defendant criticized this court for seem[ing] to be giving the trial court the benefit of the doubt as to what it might have done off the record and he challenged us to be loath to accept, let alone defer to, the practice of hearing and ruling on [a Wheeler/ Batson motion] off the record. As to counsels first remark, he failed to cite one example in our opinion wherein we gave the trial court credit for anything that was not actually stated on the record. As to his second remark, we were not at the voir dire to stop counsel and the trial court from holding an unreported hearing. We are disturbed and chagrined by what we see as a growing trend at the trial level of such unreported discussions. We would be pleased if no trial court ever conducted another hearing that was not reported. However, we ask, Where was trial counsel for defendant during this unreported exchange? Trial counsel for the defendant should have insisted that the reporter be present. Instead of appellate counsel praising trial counsel for the defendant finally getting a recapitulation of the discussion reported, he should direct his criticism at trial counsel for not getting the actual proceedings reported in the first place. As for this court, there is little we can do at this juncture, other than pointing out the difficulties this creates and hoping that trial judges stop doing it.

^[3] The People concede that the trial court impliedly found that a prima facie case had been made.

^[4] During oral argument, appellate counsel for defendant criticized this statement, contending that it ignored what else was going on. However, counsel never disclosed what that what else was.

^[5] During oral argument, appellate counsel for defendant criticized this statement, suggesting that we were ignoring other comments Sanchez made during voir dire indicative of his ability to be fair, in contravention to the holding in Miller-El.Miller-El is staggeringly different from this case on its facts. In Miller-El, supra, 125 S.Ct. at page 2325 the Supreme Court began by noting that the prosecutor had used his peremptories to remove 9 out of the 10 black prospective jurors who remained of the 20 called. The Court commented that happenstance was unlikely to have produced such a result. (Ibid.) As to a particular black prospective juror, the Court pointed out that the first explanation the prosecutor had given for excusing him, which the prosecutor stated was the reason for his excusal, was based on a total misrepresentation of what the prospective juror had said during voir dire. (Id. at p. 2327.) Additionally, the Supreme Court suggested that if this reason was genuine, the prosecutor should have excused many white prospective jurors who gave stronger anti-death penalty answers than this prospective juror. (Ibid.) Next, only after defense counsel had pointed out the faulty premise of the prosecutors explanation did the latter offer a second reason for excusal, which the high court described as a makeweight afterthought. (Id. at p. 2328.) This reason, the prospective jurors statement that his brother had been arrested, prosecuted and imprisoned for drug crimes, was judged to be suspect by the Supreme Court because the prospective juror had indicated that he was not close to his brother and the prosecutor failed to ask him how his brothers experiences with the criminal justice system impacted his attitude toward the death penalty, which he had already repeatedly described as favorable. (Id. at p. 2329.) The high court suggested that further questioning would have naturally occurred had the prosecutor sincerely been concerned about the impact of the brothers criminal history on the prospective juror. (Ibid.) The Supreme Court concluded its opinion by pointing out a number of other practices the prosecutor engaged in which clearly indicated his desire to remove as many blacks from the jury as possible, adding that it was well known that the prosecutors office had a general policy of doing this. (Id. at p. 2332.) Had any such facts existed here, we have no doubt that appellate counsel would have brought them to our attention.

Here, in contrast to the mere statement in Miller-El that the prospective jurors brother had been arrested, tried and imprisoned for drug offenses, Sanchez said that he work[s] with troubled kids that get out of jail and those who stop them from going to jail. We reiterate our point that despite Sanchezs claims that he could be impartial, the trial court did not err in accepting the prosecutors reliance on this statement in concluding that he did not want Sanchez on this jury, and this had nothing whatsoever to do with Sanchezs race.

^[6] During oral argument, appellate counsel for defendant claimed we were going beyond the recapitalization, which should be taken at face value because neither party corrected it below. Our opinion does not go beyond the recapitalization it points out that the trial court and the parties failed to make clear which steps in the Wheeler/ Batson analysis had been covered, but we assume that all the steps had been. We note here that the trial court did not expressly say that the prosecutor had carried his ultimate burden of showing his reason for exercising his peremptory was race-neutral only because defendant, in his briefs, cites the trial courts failure to intone the magic words as a reason for reversing his conviction.

^[7] Those steps are: (1) defense counsel making the requisite showing of a prima facies case of purposeful discrimination; (2) the prosecutor offering a race-neutral explanation; and (3) the trial court determining the bona fides of that explanation. (Purkett v. Elem (1995) 514 U.S. 765, 767 [115 S.Ct. 1769, 131 L.Ed.2d 834].)

^[8] We find some irony in appellate counsels argument that defendant was not youthful, therefore, this prospective jurors possible bias in favor of youths facing incarceration was not a legitimate reason to excuse him from service and his second argument that defendants youth dictated that this was an unusual case requiring a grant of probation.

^[9] As defendant correctly points out, the probation report noted that defendants youth and absence of a significant prior record were factors the trial court could have utilized in determining that this was an unusual case. However, the report itself ultimately recommended prison time.

^[10] See footnote 7, post, and text accompanying it.

^[11] The probation report was authored nine months after the crimes had been committed.

^[12] We note that at the time of his sentencing, she was apparently still living with her sister, defendant was unaware of her address and he did not indicate what her income was.