P. v. Pye

Filed 10/23/07 P. v. Pye CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed.

Law Offices of Joan Wolff and Joan Wolff, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Michael P. Johnsen, and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________

A jury found defendant Keith Dwayne Pye guilty of carjacking (Pen. Code, 215, subd. (a))^[1]and evading a pursuing peace officer by driving with a willful or wanton disregard for the safety of persons or property (Veh. Code, 2800.2, subd. (a)). Defendant waived his constitutional trial rights (including the right to a jury trial) and admitted serving a single prison term for two prior felony convictions alleged pursuant to section 667.5, subdivision (b). The trial court sentenced defendant to a prison term of 10 years 8 months, consisting of the upper term of 9 years for the carjacking conviction, plus a consecutive 8-month term for the Vehicle Code violation (one-third of the middle term), plus one year for the prior prison term enhancement.

In his timely appeal, defendant contends the trial court violated his state and federal constitutional right to a fair and impartial jury by refusing to grant his Batson/Wheeler motions^[2]and violated his Sixth Amendment jury trial right by imposing the upper term for the carjacking conviction without a jury finding on the aggravating factors pursuant to Cunningham v. California (2007) 549 U.S. __, ___ [127 S.Ct. 856] and Blakely v. Washington (2004) 542 U.S. 296, 301.^[3] We disagree with defendants contentions and affirm.

STATEMENT OF FACTS

Because there is no issue as to the sufficiency of evidence, we briefly state the facts in the light most favorable to the judgment. (People v. Maury (2003) 30 Cal.4th 342, 396.) Defendants female accomplice took Shannon Burnss purse and car keys by force, and used pepper spray on the victims face to get possession of Burnss Ford Explorer. Defendant drove away in the Explorer, leading pursuing police vehicles and a helicopter on a high-speed chase over Santa Monica and Los Angeles freeways and surface streets. In the process, defendant greatly exceeded speed limits, drove recklessly through intersections, and twice crashed the stolen vehicle before abandoning it and running away. He was pursued on foot, arrested, and brought to the hospital where Burns identified him.

For the sake of completeness, we note defendant testified on his own behalf, asserting that he was standing at a bus stop when a female friend stopped by in the Explorer and told him to get in and drive them home. He did so, not knowing the Explorer had been carjacked; he did not realize the pursuing vehicles were police cars. Defendant admitted suffering two prior felony convictionsa theft-related offense in 2003 and burglary and another theft-related offense in 2004. Defendant also presented an expert in witness identification.

DISCUSSION

Batson/Wheeler Claim

Defendant contends the prosecutor violated his state and federal constitutional rights under Batson and Wheeler by using peremptory challenges to excuse three prospective jurors because they were African-American. Wheeler held that a prosecutors use of peremptory challenges to strike prospective jurors on the basis of group membership violates a criminal defendants right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Batson held, among other things, that such a practice violates a defendants right to equal protection of the laws under the United States Constitutions Fourteenth Amendment. As we explain, there was no Batson/Wheeler error.

The United States Supreme Courts governing standard is as follows: 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.] [Citation.] Third, once the prosecutor produces a neutral explanation for the challenges, the trial court must evaluate the persuasiveness of the justification and determine[] whether the opponent of the strike has carried his burden of proving purposeful discrimination. [Citation.] [Citation.] (People v. Schmeck (2005) 37 Cal.4th 240, 267.)

Here, as explained below, we need not assess the trial courts resolution of the initial Batson/Wheeler motion because the trial courts finding of a prima facie case on defendants renewed motion appeared to have encompassed all three African-American prospective jurors. (See, e.g., People v. Schmeck, supra, 37 Cal.4th at p. 267, citing Hernandez v. New York (1991) 500 U.S. 352, 359; People v. Welch (1999) 20 Cal.4th 701, 745-746.) Accordingly, we shall proceed to the third step of the Batson analysisdefendants claim that the prosecutors justifications were pretextual. In so doing, we rely on and defer to our trial courts to distinguish bona fide reasons from the sham that hide improper motives (People v. Boyette [(2002)] 29 Cal.4th [381,] 422), and [recognize] that a party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive. (People v. Gray (2005) 37 Cal.4th 168, 189.) [A]n appellate court independently reviews a trial courts conclusion on whether the prosecutor stated adequate neutral reasons for the peremptory challenges in question: It amounts to the resolution of a pure question of law [citation] . . . . (People v. Alvarez (1996) 14 Cal.4th 155, 198, fn. 9.) At the same time, we review for substantial evidence a finding that the prosecutors stated reasons were genuine: It is plainly the resolution of a pure question of fact. (Id. at p. 198.)

A.Proceedings Below

During voir dire by the trial court, Juror No. 8820 stated she worked in collections for an apparel company. She believed she could be fair to both parties, but requested to respond at sidebar to the question concerning family members and friends who had been arrested or charged with a crime. She explained that two of her nephews had been charged with crimes. One had been tried and was currently in state prison following a narcotics conviction. When asked whether she believed he had been fairly treated, she said, When, it seems like it. I wasnt at trial. I was in trial. . . . I really cant say. Her other nephew pull[ed] a gun on a man. The nephew had completed a two year prison term. Both nephews had been prosecuted in Florida. Juror No. 8820 could not say whether her other nephew was treated fairly because she wasnt there. She did not feel either nephews experience would influence her performance as a juror. Defense counsel asked no questions. In response to a question by the prosecutor, the prospective juror confirmed the two nephews were brothers, and their prosecutions arose out of different instances.

Juror No. 7996 was married. She disclosed that her car had been stolen 13 years ago, but it was not a carjacking. When asked if she was satisfied with the police investigation, she said, Um, yeah, I guess. On another point, the prospective juror stated that approximately 20 years previously, her husband had been charged with a narcotics-related offense. When asked whether she felt he had been treated fairly, she responded, I dont feel I can say because I wasnt there at the time. The trial court pressed her for a direct answer to the question whether the system treated him in a fair manner? Juror No. 7996 answered, I think so. He doesnt think so. She believed she could be objective and fair to both sides in the case.

During the prosecutors voir dire concerning whether the prospective jurors would be influenced by negative experiences with police officers, Juror No. 7996 volunteered that she had received speeding tickets, some I deserved, and some I really didnt. When asked if she would be impartial in considering police officer testimony, the prospective juror replied, I kind of have a slight problem because I feel like they are professional at it. That is my experience. When pressed on that point, she explained how a female officer testifying against her on a traffic matter had used her experience with evidence to present a more persuasive case to the court. Had the prospective juror known what the judge was looking for, she would have obtained photographic evidence, and convinced the judge to side with her. Nevertheless, Juror No. 7996 would certainly try to treat police witnesses the same as any other witness.

Juror No. 7401 had retired from the United States Postal Service. Her husband was also retired. She requested to respond at sidebar to the question concerning family members and friends who had been arrested or charged with a crime. Outside the other prospective jurors presence, Juror No. 7401 explained that her son had been arrested and charged with burglary and writing checks without sufficient funds. When asked whether she felt her son had been treated fairly by the justice system, she said, Um, as far as him being guilty of the crime, yes. But as far as when it come[s] to the punishment for the crime, no. It was too severe. When the trial court asked whether she could decide the facts of the case without considering punishment, she said, Yeah. Juror No. 7401 also explained that her husband had been charged with illegally discharging a weapon approximately 25 to 30 years before. There had been no trial and nothing about that experience would influence her.

During voir dire by defense counsel concerning the presumption of innocence, Juror No. 7401 agreed with another prospective juror who felt a defendant must have done something to be here. She explained: I figure that, if he hadnt done something wrong, more than likely he wouldnt be up for trial. However, she would have no problem putting that suspicion aside and accepting the legal presumption of innocence. During the prosecutors voir dire, Juror No. 7401 also agreed with a prospective juror who believed the prosecution needed to prove the case beyond all doubt.

The prosecutor exercised his first preemptory strike against a male juror. His second was made as to Juror No. 7996, and his third against Juror No. 8820. The defense interposed a Wheeler motion. The trial court, having noted that the first strike was made against a Hispanic male and the next two against African-American women, confirmed that the defense motion was directed to the latter two strikes. The trial court did not make a prima facie finding of discriminatory intent, and the prosecutor initially declined an invitation to respond. The trial court explained that the number of individuals who are African-American who are still seated within the jury box itself militated against such a finding. Additionally, the court noted that Juror No. 8820 had disclosed that one nephew was incarcerated for a weapons-related offense and another for a narcotics-related offense. Making it clear that it was not making a prima facie finding of discriminatory intent, the trial court invited the prosecutor to make a record.

The prosecutor referred to the criminal history of Juror No. 8820s nephews,^[4]adding that when the trial court inquired whether the incidents involving her nephews would prejudice her, the prospective juror stalled for about three seconds and said, I dont think so. Regarding Juror No. 7996, the prosecutor referenced her husbands criminal history, adding, and also, I believe, she had another incident with a relative being arrested as well.^[5] Defense counsel argued that those justifications did not support kicking off two of the only three African-American jurors on the panel, especially since both said they can put those issues aside . . . and respond fairly to both sides. The trial court emphasized that it had not made a prima facie finding of discriminatory intent, but found alternatively that if it had erred in that regard, the prosecutor excused both of those jurors for race neutral reasons.

With the dismissal of Juror No. 8820, the defense exercised a peremptory strike against a female juror. The prosecutor responded by exercising his fourth peremptory strike against Juror No. 7401. The defense renewed its Wheeler motion. The trial court noted that the stricken juror was an African-American female and made a prima facie finding of discriminatory intent. The prosecutor explained that he struck Juror No. 7401 because she disclosed that she had two sons, both of whom served state prison terms.^[6] Although he believed that reason was sufficient, he also relied on her initial statement that the prosecution should be held to a higher standard of proof than beyond a reasonable doubt. As to Juror No. 8820, the prosecutor based his decision on her disclosure concerning her nephews criminal history, which included a gun-related offense. In addition, he stated that she rolled her eyes and said, Oh well, when asked whether she thought they had been treated fairly. Regarding Juror No. 7996, the prosecutor made reference to her having a husband whom she thought was not treated fairly in regard to his arrest. She also had, I believe, another relative that was arrested and charged with [burglary].

Defense counsel argued the prosecutors justifications were pretexts for racially motivated strikes since neither challenged juror said she believed her family members were unfairly treated, and both said the prosecutions of their family members would not affect their impartiality. The trial court denied the motion, but added that it would leave open the possibility of providing the defense with additional peremptory challenges to ensure a more balanced and diverse jury, explaining that when it denied the initial Batson/Wheeler motion, it mistakenly thought there were two African-American female jurors remaining in the panel.

The prosecution exercised two more peremptory challenges; the defense exercised nine. Having used its allotment, the defense requested one additional peremptory strike. The prosecution objected on the ground that there was currently no prima facie finding under Batson/Wheeler. Additionally, as the trial court confirmed, there were two African-American jurors on the panel who had been accepted by the parties, while the remaining prospective jurors were not African-American. The trial court denied the defense request, finding the prosecutors exercise of challenges has been race neutral. More specifically, concerning the defense request for an additional challenge, the court found that the seated panel was racially diverse and the use of another challenge would not significantly affect its racial composition.

B. There Was No Batson/Wheeler Error

Defendant fails to demonstrate the trial court erred in rejecting the Batson/Wheeler challenges. Contrary to defendants assertions, we find there were adequate neutral reasons for the peremptory challenges at issue and substantial evidence that the prosecutors stated reasons were genuine.

Defendant does not argue that the prosecutors proffered reasons for striking Juror Nos. 7996, 8820, and 7401 were other than facially neutral. Rather, he contends that in light of the factual errors in the prosecutors references to the jurors voir dire responses, the trial court failed to satisfy its obligations to make a sincere and reasoned attempt to evaluate the prosecutors explanation [citation] and to clearly express its findings [citation]. (People v. Silva (2001) 25 Cal.4th 345, 385 (Silva).) We disagree. The mistaken references in this case were the type of isolated mistakes that are generally insufficient to demonstrate discriminatory intent. (Ibid.; People v. Williams (1997) 16 Cal.4th 153, 189.) This is not a case, like Silva, in which the record of voir dire provides no support for the prosecutors stated reasons for exercising a peremptory challenge and the trial court has failed to probe the issue [citations]. (Silva, supra, 25 Cal.4th at p. 385.)

As defendant points out, regarding Juror No. 7401, the prosecutor erroneously referred to a second son who had served a prison term. The prospective juror had actually stated that her son had been convicted for burglary and writing bad checksand received a punishment she regarded as too severe. She also stated that her husband had been charged with a crime. These discrepancies were minor and not indicative of bad faith or a concealed motive. Given that Juror No. 7401 had disclosed criminal histories for her son and husband, and that Juror No. 8820 had disclosed the same as to her two nephewsbrothers who apparently served prison termsit is most likely that the prosecutor was merely confused. It should be noted that defense counsel challenged the prosecutor on other points, but not as to the factual references on which defendant relies in this appeal. This provides additional support for our finding that the prosecutors errors were merely innocuous mistakes.

Silva is therefore easily distinguished. Here, not only did the record provide substantial support for most of the prosecutors references as to the facially neutral factor of family members with a criminal history, but the record entirely supported the prosecutors other stated reasonthat Juror 7401 initially voiced her belief that the prosecution should be required to prove its case beyond all doubt. That reason, too, was racially neutral.

With regard to Juror No. 8820, the record entirely supported the prosecutors reliance on the criminal history of that jurors nephews. Defendant, however, argues the record fails to support the prosecutors statement that she said Oh well while rolling her eyes, when asked if she believed her nephews had been fairly treated. Although the transcript does not contain that exact phrase, it does contain the jurors ambiguous and arguably evasive response: Well, it seems like it. I wasnt at trial. I was in trial. . . . I really cant say. As such, we regard the prosecutors errorif anyas an innocuous mistake. Again, defense counsel made no effort to correct the prosecutor on whether she said well or oh well. This falls far short of the type of error found in Silva.

As to Juror No. 7996, defendant is correct that the prosecutor erroneously referred to the existence of another relative that was arrested and charged with [burglary]. The only disclosure of a burglary charge concerned Juror No. 7401s son. However, the record supports the prosecutors reliance on Juror No. 7996s disclosure that her husband had been arrested. While it is true that the juror denied feeling any dissatisfaction with the manner in which her husband had been treated, the record does not belie the prosecutors assertion that her body language contradicted her statement that it was her husband, not she, who felt he was unfairly treated. Once again, in light of the minor nature of the prosecutors error about another relative with a criminal history and the fact that his other reasons found substantial support in the record, we conclude the trial court did not violate its obligations to make a sincere and reasoned attempt to evaluate the prosecutors explanation and to clearly express its findings pursuant to Silva.

Finally, defendant argues the trial court improperly considered the number of other African-Americans in the venire in making its Batson/Wheeler evaluation. Pointing to the instances in which the trial court referred to the racial composition of members of the venire other than the jurors who were the focus of the Batson/Wheeler motions, defendant contends the trial court violated the principle set forth in People v. Hall (1989) 208 Cal.App.3d 34, 43: A prima facie showing of group discrimination may be made even when a member or members of a cognizable group remain on the jury. [Citation.] The point is not the number of a cognizable minority group still on the panel at the time of the challenge, but the use of the challenge for improper racially motivated reasons. In other words, a prosecutor may not claim legal solace from the mere fact alone that he or she left members of a cognizable minority group on the jury panel.

We find no error. It is well established that the trial court may look to the racial composition of the venire as part of its legitimate Batson/Wheeler inquiry into the prosecutors motives. (See, e.g., People v. Welch (1999) 20 Cal.4th 701, 746 [The fact that there were three Black jurors and two Black alternates seated at the time the trial court ruled on the motion, while not conclusive, weighs in favor of finding no prima facie showing. So too does the fact that the prosecution exercised only three of its eleven peremptory challenges on Black prospective jurors.].) This was not a case in which the trial court eschewed application of the Batson/Wheeler criteria in favor of a consideration of whether the jury panel was racially diverse. To the contrary, the trial court emphasized that it found the prosecutors exercise of challenges has been race neutral. It was only in the context of denying the defense request for an additional peremptory strike after the defense allotment had been expended that the trial court found the seated panel was racially diverse and the use of another challenge would not significantly affect its racial composition. That finding and ruling were independent of those the trial court had made under its Batson/Wheeler analysis, and defendant does not contend otherwise.

There Was No Blakely/Cunningham Error

We turn to defendants contention that the trial court violated his Sixth Amendment jury trial right by imposing the upper term for the carjacking conviction without a jury finding on the aggravating factors pursuant to Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860] and Blakely, supra, 542 U.S. at page 301. In Black II,supra, 41 Cal.4th at page 805 and Sandoval, supra, 41 Cal.4th at page 831, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, 41 Cal.4th at p. 812.) Our Supreme Court further held: It follows that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816.)

Here, the trial court imposed the upper term based on the existence of numerous aggravating factors. Regarding the underlying carjacking offense, the court found it involved great violence and the threat of great bodily harm, was carried out in a manner indicative of premeditation, and involved an attempted or actual taking or damage of great property value. The court also made two recidivism findingsdefendants prior convictions were numerous and of increasing seriousness and defendant was on probation while committing the underlying offense, demonstrating unsatisfactory performance on probation. Based on its review of the mental health report in the Probation Officers Report, the trial court also found defendants learning disability and disadvantaged background was a factor in mitigation. The court found the factors in aggravation far outweigh the factors in mitigation.

Applying Black II and Sandoval, we find no Sixth Amendment violation. In a proceeding outside the jurys presence, defendant waived his constitutional trial rights, including the right to a jury trial, and admitted two prior felony convictions in 2004 for second degree burglary and attempted automobile theft. During the trial itself, defendant admitted suffering a theft-related offense in 2003 and burglary, and a theft-related offense in 2004.

Black II made it clear that, consistent with Apprendi, aggravating circumstances justifying the upper term may be (1) found by the jury, (2) admitted by the accused, or (3) established based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816.) Further, Recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Id. at p. 818.) Black II held the prior conviction exception includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Id. at p. 819.) Here, the recidivism findings that authorized defendants upper term were not only admitted by defendant, but also established by his record of prior convictions.^[7] Defendants criminal history established aggravating circumstances which independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial [as well as his right to due process of law] was not violated by imposition of the upper term sentence . . . . (Id. at p. 820.)

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J. ARMSTRONG, J.

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

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

^[3] Both parties submitted supplemental briefing to address the implications of our Supreme Courts recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).

^[4] Upon the trial courts prompting, the prosecutor stated that he had mistakenly referred to Juror No. 7996, rather than Juror No. 8820.

^[5] As we explain infra, this was incorrect. Juror No. 7996 only mentioned her husband being arrested and charged. It was Juror No. 7401 who had disclosed that both her son and husband had been arrested and charged.

^[6] In fact, as discussed infra, Juror No. 7401 had stated that her son had been convicted for burglary and writing bad checks; her husband had been charged with a crime.

^[7] In light of the fact that defendant admitted his prior convictions, we do not reach defendants belated and speculative assertion, raised for the first time in his supplemental briefing, that his prior record was insufficient to support reliance on his criminal history because some of his priors may have been juvenile adjudications. (See, e.g., People v. Grayson (2007) __ Cal.App.4th ___ [2007 WL 2812635 at *4-*6] [use of prior juvenile adjudications did not violate jury trial right].)