P. v. Peete

Filed 9/28/06 P. v. Peete CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Sweet Pea Trillo lost his life, his jewelry, and his diamond studded gold teeth in the apparently lucrative, yet lawless and dangerous, business of drug dealing. Following a joint trial, a jury convicted defendants Melvin Jaman Peete and Derrick Kinte Courtney of robbery, murder, possession of a firearm by a convicted felon, various enhancements, and a special circumstance. Both defendants challenge the trial court’s ruling that they failed to make a prima facie showing of purposeful discrimination when the prosecutor exercised his second peremptory challenge to excuse an African-American potential juror. Defendant Peete contends the court erroneously denied his request for new counsel without interrogating his lawyer, and defendant Courtney insists the joint trial deprived him of a fair trial. We accept the Attorney General’s invitation, at defendants’ urging, to strike the parole revocation fines, but in all other respects, we affirm.

FACTS

Even before Peete changed course and sealed his fate by testifying, the evidence against him was overwhelming. The decedent’s wife, who was also a victim of the robbery, identified him. She was forced to lie down on the floor of her kitchen as Peete calmly ransacked her house. She described him as the shorter of the two intruders and wearing a light brown or gold sweat suit with a hooded pullover. Peete asked her husband, known on the street as Sweet Pea Trillo, for the keys to his Oldsmobile and the gold caps with diamonds that he wore on his teeth. After the intruders left her house, she followed her husband outside and saw Peete in the Oldsmobile firing at Sweet Pea. Her husband was hit and died a few hours later because of blood loss from the gunshot wound.

Meanwhile, Wendy Knox and her five children were sitting in a truck parked outside the Trillo house. Her husband had gone into the house, purportedly to sell pirated CD’s. Wendy positively identified Peete as the short man who grabbed her cellular telephone and later jumped into the Oldsmobile. Although her husband, James, had been unable to identify Peete during a photographic lineup, he too identified him at trial as the man who made him lie face down on the floor as soon as he entered the Trillo house.

But the jury did not have to rely on eyewitness identification because Peete left his fingerprints behind as well. Latent fingerprints were discovered on a checkbook box found inside the house, on the driver’s door handle of the Oldsmobile, and on the rims of two wheels inside the Oldsmobile.

Moreover, Peete boasted to his ex-wife that he was “‘the one who actually killed the dude because he shot the dude in the stomach.’” He also gave her a bracelet he had stolen during the Trillo robbery. Angry that Peete had given her car, and perhaps jewelry, to another woman, his ex-wife described a pawnshop she believed Peete used in Reno, Nevada. Indeed, at the Reno pawnshop the police recovered jewelry that had been taken from the Trillos’ house.

Peete himself did not deny he was at the Trillo house on the afternoon of October 23, 2001. In fact, he admitted he was a drug dealer but insisted there had been no robbery: the incident involved a drug deal gone awry. According to Peete, the decedent was also a drug dealer, a claim corroborated by the physical evidence confiscated from his house and by Wendy Knox’s testimony. Peete attempted to exonerate himself by explaining to the jury that he had tried to cheat the decedent by selling him diluted drugs, and after the decedent’s “tester,” James Knox, discovered the deception, the decedent came out of the house shooting at him. According to Peete, one of his compatriots shot Trillo in self-defense. Peete’s belated decision to testify sabotaged his codefendant, Derrick Courtney. Courtney, unlike Peete, never admitted to participating in any drug deal with the decedent. His defense was predicated on the prosecution’s failure to prove identity beyond a reasonable doubt. And, in contrast to the overwhelming evidence against Peete, the identification evidence against Courtney was much weaker.

It is true that Peete insisted at trial that Courtney was not involved in the drug deal. But he was thoroughly impeached by his post-arrest statement to the police wherein he claimed that “Dub,” Courtney’s street name, had wanted to “punk” Trillo, a “pushover,” for some drugs. Peete told the detectives he went along with Courtney, but he waited outside and only picked up a gun he found in the Oldsmobile and fired a couple of shots after Trillo came outside with a shotgun and fired the first shot. Peete also characterized Courtney as aggressive, a description that matched Mrs. Trillo’s testimony that the second intruder had been much more belligerent than Peete.

The eyewitnesses were unable to identify Courtney with the same certitude they had about Peete. The decedent’s wife could not identify him either before or during trial. Nor could James Knox. Wendy Knox, however, surprised everyone when she identified Courtney at trial despite her inability to identify him during pretrial photographic or live lineups.

Investigators found one of Courtney’s fingerprints on the rim of a wheel inside the Oldsmobile.

Courtney, like Peete, was ultimately doomed by his own bravado. He told Edward Russell, among others, that he had “jacked” Sweet Pea because he had been flashing money. He recounted how they had gone into the Trillo house, made everyone lie on the floor, and collected things from throughout the house. After they left, according to Courtney, Trillo came after them with a shotgun and fired at them. He admitted they had taken an Oldsmobile and a Mustang. Russell saw Courtney pull out cash, credit cards, jewelry, a bag of white powder, and a cell phone from a purse.

But Russell was not without his own limitations as a credible witness. A retired drug dealer himself, he had operated a rock cocaine house in Oakland in the 1980’s that generated $6,000 to $8,000 a day in sales. He was proud of the fact he had never been prosecuted or convicted of any drug offenses. He made the most of his expertise by entering a witness protection plan. In this case, he had called a “WeTip” number in the hope of obtaining reward money for information about the Trillo homicide. The prosecution paid for many of the expenses he incurred to testify.

I

Defendants, both of whom are African-American, contend the prosecutor exercised a peremptory challenge against an African-American prospective juror in violation of the federal constitutional guarantee of equal protection of the laws (Batson v. Kentucky (1986) 476 U.S. 79, 84 [90 L.Ed.2d 69] (Batson)) and the state constitutional right to a jury drawn from a representative cross-section of the community (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler)). The trial court ruled defendants had not demonstrated a prima facie case of purposeful discrimination. In so doing, the court presumably applied the standard first articulated by the California Supreme Court in Wheeler and later clarified in People v. Johnson (2003) 30 Cal.4th 1302 (Johnson) that, to establish a prima facie case, the objecting party must show it was more likely than not that the challenge was based on group bias. (Id. at p. 1306.) Subsequent to the court’s ruling, however, the United States Supreme Court reversed Johnson, holding the standard therein to be “an inappropriate yardstick by which to measure the sufficiency of a prima facie case.” (Johnson v. California (2005) 545 U.S. 162, ___ [162 L.Ed.2d 129, 138].) Instead of establishing a “more likely than not” standard, the objecting party need only present “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Id., 162 L.Ed.2d at p. 139.) Thus, while the trial court presumably applied the correct prima facie standard under California decisional law in effect at the time, that standard was thereafter changed.

What are we to do? Defendants argue that, historically, where a lower court has applied an incorrect standard to a Wheeler motion, reversal has been ordered, though where it appears likely that the facts of the case remain fresh in the minds of the trial participants, a limited remand to apply the correct standard may be appropriate. The Attorney General appears to argue we can and should find as a matter of law, applying the correct standard, that defendant failed to make a prima facie showing.

Consonant with rulings of the California Supreme Court, we are confident that we can “apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.” (People v. Cornwell (2005) 37 Cal.4th 50, 73 (Cornwell).) We are persuaded that under no reasonable interpretation of the facts presented to the trial court could an inference of discriminatory purpose be drawn from the prosecutor’s exercise of a peremptory challenge against the single African American prospective juror on the venire and that defendants failed to establish a prima facie case under the correct standard.

Proof of a prima facie case is the first of three steps delineated in Batson and Wheeler to guide a trial court’s constitutional review of peremptory challenges. The defendant must first demonstrate “‘that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] 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, 162 L.Ed.2d at p. 138, fn. omitted.)

The first step may be established “solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a 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 defendant’s 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, quoting Avery v. Georgia (1953) 345 U.S. 559, 562 [97 L.Ed. 1244].)

While a defendant must ultimately prove his claim of purposeful discrimination by a preponderance of the evidence, in establishing a prima facie case the defendant need only raise an inference of discrimination. The Supreme Court likened the burden-shifting framework in Batson to a similar framework in cases arising under title VII of the Civil Rights Act of 1964. It is “essentially just ‘a means of “arranging the presentation of evidence”’.” (Johnson v. California, supra, 162 L.Ed.2d at p. 140, fn. 7.) As in civil rights cases, Wheeler error is based on a discriminatory motive. Yet before the prosecutor is required to disclose his or her motive, the defendant must identify facts that give rise to an inference the motive was race based. (People v. Huggins (2006) 38 Cal.4th 175, 226-227.) While Johnson v. California diluted the defendant’s burden of offering a prima facie case, the Supreme Court did not eliminate the burden entirely. It is undisputed that defendant is a member of a cognizable racial group and that the prosecutor exercised a peremptory challenge to remove from the venire a member of defendant’s race. Beyond these facts, defendant cites to no other “relevant circumstances” that could raise an inference of discrimination. There was no pattern of challenges against African-American jurors; the juror in question was the only African-American among the 19 members of the venire. Defendant can point to no questions or comments by the prosecutor suggesting bias or disparate treatment in the choice of questions asked prospective jurors.

This case is unlike any of the cases cited by defendant. In People v. Snow (1987) 44 Cal.3d 216, 221-227, several Black venirepersons were excused after giving routine acceptable responses to the prosecutor’s questions. The trial judge expressed concern to the prosecution about the ethnic makeup of the jury, to which the prosecutor responded by complaining that the defense counsel had excused 13 White venirepersons, an irrelevant point. In People v. Rodriguez (1996) 50 Cal.App.4th 1013, the prosecutor exercised peremptory challenges as to two Hispanic venirepersons and one prospective Hispanic alternate juror. The trial court improperly deemed the Wheeler motion untimely as to the two jurors and, while granting the motion as to the alternate, did so after the alternate had left the courthouse and was no longer available to serve. People v. Garcia (2000) 77 Cal.App.4th 1269 (Garcia) and People v. Williams (2000) 78 Cal.App.4th 1118 (Williams) involved issues of first impression as to whether gays and lesbians (Garcia) and men (Williams) constitute cognizable groups. The trial courts had refused to even entertain Wheeler motions in the two cases. In People v. Tapia (1994) 25 Cal.App.4th 984, 1006, a confused trial judge appeared to assume a prima facie case under Wheeler as to three prospective Hispanic jurors but failed to inquire and determine the prosecutor’s reasons for challenging them. Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1107-1108 is a case based on statistical disparity, but in that case the prosecutor used three of his first four peremptory challenges to remove African-Americans from the jury. Only four of the first 49 potential jurors were African-American. Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] is a case decided with Johnson v. California, supra, 162 L.Ed.2d in which the existence of a prima facie case was undisputed.

The question presented is thus: Does the exercise of single peremptory challenge against the only member of a cognizable group on a panel of prospective jurors, standing alone, permit an inference of discrimination against that group? We think not.

As explained by the Supreme Court in Johnson v. California, “an ‘inference’ is generally understood to be a ‘conclusion reached by considering other facts and deducing a logical consequence from them.’” (Johnson v. California, supra, 162 L.Ed.2d at p. 138, fn. 4, quoting Black’s Law Dictionary (7th ed. 1999) at page 781.) Regrettably, the recent history of racism in this country, and its persistence despite our efforts to eradicate it, could lead to speculation about the motives underlying any decision affecting a racial minority. However, speculation is not inference. It does not logically follow that every adverse decision affecting a minority group member reflects discriminatory animus.

Defendants disagree. They assert that the chance probability the prosecutor would excuse the African-American juror with one of his first two challenges, without reference to her race, was less than 16 percent, computed using the following formula: (11/12) x (1/12) x (2) = .1528. As a result, they insist that statistically they have raised an inference of purposeful discrimination and satisfied their threshold burden of proof. Their argument misses the mark. Probability theory is helpful in examining the occurrence or failure to occur of random events. Statistical disparity may be helpful in documenting a pattern from which discrimination may be inferred. But abstract probability calculations, divorced from the context in which actions were taken, are not helpful in divining the motives underlying a decision. Certainly the selection of a jury is not a random event and, in exercising peremptory challenges, trial lawyers are not obliged to act randomly. Their selection techniques, whether based on science, empiricism, or hunch, are of no concern so long as the choice is not motivated by animus against a cognizable group.

Defendants also magnify the statistical significance of the prosecutor’s peremptory challenge when contextually the timing of the objection diminishes the significance. “[T]he sample is so small that the statistical significance of the percentages is limited.” (Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1198 (Wade).) As the court aptly pointed out in Wade, “If an African-American is the first person called, and thus the first person struck, all (or 100%) of the prosecutor’s peremptory challenges will have been exercised against African-Americans at the time of the challenge. But if that same African-American is called at the end of the voir dire, the percentage may be far lower.” (Ibid.) Here, the prosecutor exercised his second peremptory challenge against an African-American, Ms. L., thereby inflating the statistical significance at that moment in time. But as the Attorney General points out, the prosecutor thereafter passed on 16 to 19 opportunities to strike other African-American jurors, and at least one African-American was left on the jury. Thus, the record is devoid of any suggestion that the challenge to Ms. L. reflected the prosecutor’s bias against African Americans.

It is true that striking even one juror for a discriminatory purpose is unconstitutional. (U.S. v. Vasquez-Lopez (9th Cir. 1994) 22 F.3d 900, 902.) But we have discovered no case in which the mere fact an African-American had been challenged was held to raise an inference of racial animus. The California Supreme Court has rejected Wheeler challenges when all the challenged jurors were African-American (People v. Box (2000) 23 Cal.4th 1153, 1188-1189), when the prosecutor challenged one of two African-American prospective jurors (Cornwell, supra, 37 Cal.4th at pp. 66-67), and when the prosecutor excluded one African-American juror from the regular jury but left another on, and struck an African-American from the panel of alternates but left another on (People v. Gray (2005) 37 Cal.4th 168, 186-187).

While defendants offered no relevant circumstances beyond the fact of the challenge to support an inference of discriminatory purpose, we note the challenged juror’s own answers to questions on voir dire tend to dispel such an inference. In that regard, the facts here are similar to those described by the Supreme Court in Cornwell, supra, 37 Cal.4th 50. In Cornwell, as here, the trial court expressly determined the defendant had not made a prima facie showing of group bias. The defendant relied on the bare fact that one of the two African-Americans among the potential jurors had been challenged. Affirming, the Supreme Court examined the juror’s responses during voir dire. “The juror’s own remarks also clearly do not support an inference she was excused because of her race -- on the contrary, despite her obvious intelligence and good faith, her voir dire disclosed a large number of reasons other than racial bias for any prosecutor to challenge her, including but not limited to her personal experience with an allegedly unfair homicide prosecution of a close relative and her express distrust of the criminal justice system and its treatment of African-American defendants -- a view not restricted to African-American persons. [Citations.] Nor do we find anything else in the record to supply a basis for an inference that the prosecutor was motivated by racial prejudice.” (Id. at p. 70.)

Here, the trial court, in finding the absence of a prima facie case, summarized the reasons other than the prospective juror’s race for any prosecutor to challenge her: “. . . I do not think that [Ms. L.] was forthcoming on her questionnaire in terms of describing the long history of sexual assault to which she was subjected.

“And even under questioning by the Court from her questionnaire, she described it as ‘P, self, assault victim.’ Then under questioning by the Court, she did admit that it had gone on for a number of years. Her parents had referred it to the church, and that and [sic] she did indicate that the person who did this to her, the perpetrator, was a white person and was significantly older than she.

“The Court asked her a number of questions about the experience and what happened to her. It was only upon follow up by the defense that the enormity of the situation was revealed in that she disclosed that, in fact, she had had -- she was compelled to have two abortions as a result of this sexual assault that went over all these years and her parents never involved law enforcement and never got her any counseling.

“Also, the record should reflect that Ms. [L.’s] demeanor as a person, she showed no emotion whatsoever. She kept her arms folded across her body for most of the time that she was here. She appeared to be -- and my notes reflect ‘angry’. I am not sure at whom or about what. But as a person, she was very, very difficult to communicate with.

“Her responses, although she was articulate, she thought about her responses and enunciated very carefully, very controllingly [sic], and without any expression or emotion whatsoever. So it was very difficult to understand why she was communicating in this way.

“She did not interact well, and I can’t see her participating on a jury because of all the problems that I have described in a meaningful way.

“She did indicate, only after some numerous questions and with some reluctance, that she would change her mind if she were convinced that she was wrong, but she had never been wrong in making a decision. And that showed -- that gave me quite a bit of consternation.

“So I do conclude that there is no prima facie case that has been established with respect to Ms. [L].”

Just as a prosecutor’s questions may be considered in developing a prima facie case of discrimination, a prospective juror’s answers are a relevant circumstance that may erode any inference of discrimination.

Defendants discount Ms. L.’s deficits. They insist she would have made a fair minded, model juror. That may be. But the relative merits of retaining her on the jury are not at issue. Here, as the trial court found, the juror’s demeanor suggested inflexibility, her attitude suggested hostility, and her background of abuse suggested a hornet’s nest of complex psychological issues that might influence her decision making. Together they dispel any slight inference arising from bare statistical factors that she was excused because of her race. No inference of discriminatory motive can be drawn from these facts.^[1]

II

Defendant Peete blames his lawyer for his conviction and the judge for failing to interrogate his lawyer during the in camera hearing on his motion to appoint substitute counsel to bring a motion for a new trial. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The trial court, like the jury, heard the overwhelming evidence against Peete, including eyewitness identifications, fingerprints, and his own incriminating statements to his ex-wife and the investigating police officers, not to mention his damning testimony at trial. With this backdrop, we review the trial court’s denial of Peete’s Marsden motion for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1190.) “‘Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel. [Citations.]’ [Citation.]” (People v. Smith (1993) 6 Cal.4th 684, 690-691 (Smith).)

A defendant, of course, must be given an opportunity to explain his reasons for requesting a new lawyer. Peete outlined his objections in a letter and expounded on his dissatisfaction at his Marsden hearing. He does not contend he did not have an adequate opportunity to explain his reasons, but rather, that the trial court abused its discretion by failing to examine his lawyer, who, after he was given a chance to respond, simply stated, “I have nothing to say at this time.” Peete insists the trial court abdicated its responsibility under Marsden to make further inquiry. We disagree.

Marsden does not require the trial court to question a disgruntled defendant’s lawyer. (People v. Young (1981) 118 Cal.App.3d 959, 965.) “[I]nquiry into the attorney’s state of mind is required only in those situations in which a satisfactory explanation for counsel’s conduct or attitude toward his client is necessary in order to determine whether counsel can provide adequate representation.” (People v. Penrod (1980) 112 Cal.App.3d 738, 747.) “Further, that a defendant disagrees with the trial preparation and strategy adopted by his appointed counsel does not trigger any duty of inquiry by the trial court.” (People v. Turner (1992) 7 Cal.App.4th 1214, 1219 (Turner).)

Thus, a trial court’s duty of inquiry depends on the nature of the grievances considered in the context of the trial. (Turner, supra, 7 Cal.App.4th at p. 1219.) “New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings.” (Smith, supra, 6 Cal.4th at p. 691.)

Peete catalogues a number of complaints about his lawyer’s performance, including his failure to subpoena his parole officer to impeach his ex-wife, to locate other witnesses, and to hire crime scene reconstructionists. More generally, he believed his lawyer was disinterested, inadequately prepared, and inept in his examination of witnesses, particularly Peete himself. The trial court carefully examined each of Peete’s complaints, gave him ample opportunity to explain his dissatisfaction, and then denied the motion. The court believed that although “Mr. Dawson did an excellent job,” the turning point in the trial occurred when defendant insisted on testifying and the jurors simply did not believe him. We agree that Peete failed to present a colorable claim that he was ineffectively represented at trial and that in the absence of counsel’s failing he would have achieved a more favorable determination.

Peete claims his parole officer would have testified that his ex-wife had made a prior false report against him and had admitted lying to the police. But counsel accomplished the same goal with effective cross-examination. Indeed, Peete’s ex-wife admitted she lied to the police, admitted she was angry that Peete had given her car to another woman and that she cooperated with the police to get even with him and to get her car back, and admitted she was incarcerated. During defense counsel’s examination, she recanted her prior accusations against Peete, and when asked if she understood the consequences of the incriminating statements she had attributed to Peete, she repented, stating, “Through God’s eyes, I am suffering because now I am incarcerated and I know how it feels.” The parole officer could have added little to what Peete’s ex-wife readily admitted during defense counsel’s skillful cross-examination.

Peete does not identify any additional potential witnesses nor explain what they might add. Nor does he provide any specificity to the value of a crime scene reconstructionist. He simply ignores the overwhelming evidence against him. Because he was charged with felony murder, additional witnesses or a reconstructionist would not have exonerated him. We cannot accept his far-fetched notion that the jury might have discarded eyewitness accounts that he perpetrated the robbery inside the house and accepted his self-serving testimony that he sat outside the house unaware of any robbery, patiently awaiting the consummation of the drug deal going on inside. Based on the evidence before the jury, he makes no colorable claim that his lawyer failed to properly investigate or prepare for trial.

Peete’s remaining complaints relate to trial tactics, readily observable by the trial court, which did not find the lawyer’s performance lacking. In any event, trial counsel need not seek the defendant’s approval of his trial tactics, and “disagreement between defendant and attorney on such matters is not a basis for substitution of counsel.” (People v. Hill (1983) 148 Cal.App.3d 744, 753.) None of Peete’s complaints, taken individually or cumulatively, constitute a colorable claim of incompetence that would have entitled him to a new lawyer.

III

Defendant Courtney requested a severance before trial and many times during trial. Each time, his request was denied for different reasons. Initially, the court denied a severance because the prosecutor had agreed not to use codefendant Peete’s postarrest statement wherein he implicated Courtney. When in the midst of trial Peete decided to testify, prompting the prosecutor to impeach him with his prior statement, Courtney renewed his request for a severance as he had throughout the trial. Again, the motion was denied. On appeal, Courtney contends the trial court abused its discretion by refusing a severance, and even if there was no abuse of discretion at the time of the various rulings, the gross unfairness that resulted deprived him of a fair trial and due process of law.

At the outset of the trial, the court was presented with a “classic case” for a joint trial because defendants were charged with the same crimes involving the same victims, and the Legislature has expressed a statutory preference for joint trials. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Penal Code section 1098 states, in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” Thus, joint trials are the rule and separate trials the exception. (People v. Cleveland (2004) 32 Cal.4th 704, 726.)

The dispositive issue in this case is not whether the trial court abused its discretion but whether the failure to sever denied Courtney a fair trial once his codefendant testified and his postarrest statement implicating Courtney was used to impeach him. Whether or not the court’s initial rulings were correct, we must nevertheless reverse the judgment if “the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) In other words, the defendant must show prejudice by “demonstrat[ing] a reasonable probability that the joinder affected the jury’s verdicts.” (People v. Grant (2003) 113 Cal.App.4th 579, 588.) It is this last hurdle Courtney fails to overcome.

There is no question that his codefendant’s decision to testify midtrial undermined Courtney’s defense, a fact hammered home by the prosecutor during his closing argument. He reminded the jury, “If you watch how this thing played out, he did so much damage to Mr. Courtney it is not funny.” Indeed, the prosecutor entreated the jury, “[Peete] snitched out Dub, and you get to use that for all that it’s worth.” He argued in rebuttal that defense counsel’s closing argument might have worked had Peete not testified and the jury not heard his statement. “But the minute we heard that statement, you saw what happened in this courtroom with the witness. There was no cross and no redirect, and it just sort of ended that day.”

The evidence against Courtney was not as strong as the prosecution’s case against his codefendant. As we pointed out, ante, at pages 4 and 5, only one eyewitness, Wendy Knox, identified Courtney at trial, and that identification itself was suspect since she had been unable to identify him during both photographic and live lineups. While a virtual parade of witnesses identified Peete without hesitation, Courtney had relied on the absence of eyewitness identification to stage his defense. In his opening statement, defense counsel informed the jury that neither James nor Wendy Knox nor the decedent’s wife had identified Courtney. But his identification defense was derailed when Peete took the stand and the prosecutor impeached him with the very statement that implicated Courtney.

Thus, the determination whether the joinder ultimately affected the jury’s verdict is difficult. We do not accept the Attorney General’s notion that Peete’s testimony exonerating Courtney mitigated the enormous damage caused by the admission of his statement incriminating Courtney. But we must assess whether there is a reasonable probability the joinder, including Peete’s damaging testimony, affected the jury’s verdict in light of all the evidence presented at trial. We conclude that the evidence was just too compelling to create the requisite reasonable probability that the joinder prejudiced Courtney.

Courtney, like Peete, boasted of his involvement in the robbery/murder. We agree with Courtney that a jury might question the veracity of a former drug kingpin such as Russell, who admitted he did not want to testify for fear of retribution against his family. But Russell provided law enforcement with details of the crime remarkably similar to the facts as described by the other witnesses. He recounted that Courtney told him he had “jacked” Sweet Pea, gone into the Trillo house, forced the occupants to the floor, and ransacked the house. Courtney also stated that Trillo came out of the house with a shotgun and fired at them and they had taken an Oldsmobile and a Mustang. Thus, the jury would have heard of Courtney’s involvement in the charged offenses whether or not Peete testified, and the facts as recounted by Russell echoed the testimony of the eyewitnesses to the crimes. Russell’s limitations as a credible witness could not diminish the accuracy of the facts he provided law enforcement during the investigation and later testified to at trial.

In addition, Courtney’s fingerprint was lifted from a rim found inside the Oldsmobile. Cumulatively, we cannot say that the joinder affected the jury’s verdict in the face of fingerprint evidence, one eyewitness identification, and Russell’s testimony connecting Courtney to the commission of the charged offenses. There is no question that Courtney was blindsided by Peete’s testimony, that the prosecutor exploited the situation, that the prosecution’s case against Courtney was weaker than the case against Peete, and that Courtney’s lawyer had sought a severance at every possible turn in the trial. But absent a demonstration that the joinder actually contributed to the verdict, Courtney has failed to sustain his burden of showing “gross unfairness“ amounting to a denial of due process.

IV

Both defendants were sentenced to state prison for life without possibility of parole with various other consecutive and concurrent terms. “[A] parole revocation fine is inappropriate where the defendant’s overall sentence does not anticipate a period of parole.” (People v. Petznick (2003) 114 Cal.App.4th 663, 687.) The Attorney General agrees with defendants that the parole revocation fines should be stricken. So be it.

DISPOSITION

The parole revocation fines are stricken and the judgment is affirmed in all other respects.

RAYE , Acting P.J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^[1] Defendants also complain that the trial court declined to conduct a comparative analysis of Ms. L.’s responses with those of other jurors. While such a comparative juror analysis may, in some cases, be necessary to determine whether a defendant has made a prima facie showing of group bias (Cornwell, supra, 37 Cal.4th at p. 71), there is no indication that such an analysis would be helpful in the present case where defendants can point to no facts supporting an inference of bias.