P. v. Shipp
Filed 8/28/07 P. v. Shipp CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, Plaintiff and Respondent, v. MARCUS SHIPP, Defendant and Appellant. | B190517 (Los Angeles County Super. Ct. No. TA079782) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Jack W. Morgan, Judge. Affirmed.
J. Kahn, under appointment by the Court of Appeal, for Respondent and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, Lisa J. Brault and Sonya Won, Deputy Attorneys General, for Petitioner and Respondent.
________________________________________
INTRODUCTION
A jury found defendant and appellant Marcus Shipp guilty of murder. During jury selection, the prosecutor excused four African-American jurors. On appeal, defendant contends that the prosecutor exercised peremptory challenges in violation of his equal protection rights. Defendant also contends that the prosecutor committed prejudicial misconduct during closing argument. We disagree with both contentions, and we therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.[1]
On April 16, 2004, a group of people, which included defendant and Thomas Greenwood, were outside a Dennys restaurant. Defendant and Greenwood were in the same gang. Thomas Carson Perkins approached the area, looking in ashtrays for cigarette butts. Defendant made fun of Perkins, and the two men got into a verbal altercation during which Perkins pushed defendant. A gun in defendants pocket fell to the ground. Defendant picked it up and shot Perkins, who died as a result of his wounds.
About one month after Perkins was shot, defendant, who was with Greenwood, shot at people who they thought were rival gang members. Greenwood was arrested for that shooting. After finding out that defendant had implicated him in the gang shooting, Greenwood told the police that defendant had killed Perkins. Greenwood also came forward because he felt that Perkins was an innocent bystander. Greenwood did not get any promises for his testimony, but the People will recommend he be sentenced to 15 years to life for his participation in the gang shooting.
II. Procedural background.
A. Jury voir dire.
Eighteen jurors were empaneled.
Juror No. 5781, an African-American man, was married with no children, and his wife was a receptionist. His friend was a LAPD detective, but the juror said that would not affect his ability to be fair. To evaluate credibility, he would observe the witnesss ability to look the prosecution or defense in the eye and at body language, nervousness, fear, rigidity. When the prosecutor asked jurors whether they would think a witness who is a gang member is a liar, the juror asked whether they would get background information, such as criminal records. But he wouldnt discredit a witness just because the witness was coming out of custody.
Juror No. 9709, an African-American woman,[2]had been arrested at the age of 19 for petty theft. Her brother was in jail for murder. Although the juror did not attend her brothers court proceedings, the juror felt that her brother was treated unfairly by law enforcement, the district attorney, the judge, and the witnesses. Nevertheless, the juror said it shouldnt affect her ability to be fair. But, later, upon questioning by defense counsel, the juror said she was not sure whether she would be able to put her feelings about what happened to her brother aside. Upon further questioning by the prosecutor, the juror said that what happened to her brother shouldnt affect her, but she couldnt give a definite answer. The juror also had a bad experience with law enforcement during which officers broke into her home without a warrant. The juror said that this incident wouldnt impact her ability to be fair.
Juror No. 6878, an African-American man, had been assaulted with a deadly weapon. Although the defendant pled guilty, the juror felt that the case had not been properly handled. The juror also had been arrested once for manufacturing and selling PCP, but the case was dismissed. He felt he was treated fairly.
Juror No. 6024, an African-American woman, said she was a little under the weather and listening to it. Im feeling good today. When the trial court asked her what was one of the questions it had asked jurors to consider, Juror No. 6024 said she didnt remember because she wasnt feeling good. She also admitted that she did not get out a pen and pencil to take notes although the court had asked all jurors to do that. She was a sheriff at a correction center, but she had no more [special training] than my job. When asked if she could be fair, she said it depended on what she heard: Ive always said if I would be called to jury, it would be very hard for me to decide whether that person . . . is guilty or not. I dont care what the evidence was. I wasnt there. And that is just me. Upon further questioning, she said she would listen to the evidence, judge it fairly, and vote according to the burdens of proof.
B. The Wheeler/Batson motions.[3]
The prosecutor exercised his first peremptory challenge to Juror No. 5781, his second to Juror No. 9709, and his third to Juror No. 6878. Defense counsel then made a Wheeler/Batson motion, stating that Juror No. 6878 and the first was African-American, the first being Juror No. 5781.
The trial court said it observed from Juror No. 6878 very, very bad vibes in terms of his attitude, his body movement, his behavior, and his responses to the questions that I asked. And I cant recall if you asked any questions or not. But in regard to the questions I asked, that is what I observed. So I would say preliminarily it was almost a certainty to me that that man would be excused because of all the negatives that I perceived. The court also said that the juror was absolutely illogical and stayed with an absurd proposition that could not be true.
Defense counsel replied, Well if you take his case along with the two other jurors who were also African-American including Juror No. [5781], again, who had no apparent reason why he would be excused. He gave no reasons why he would be excused.
The trial court said that at this point, I will not make a prima facie finding based upon my observations of the jurors, their body language, their statements, the inflection in their voices and everything that I observed in regard to them, I am not going to find a prima facie will be made. The court nevertheless invited the prosecutor to respond.
The prosecutor first asked the trial court to take judicial notice that there were three additional African-American jurors on the panel, not including ones in alternate positions, and three or four in the audience. Defense counsel said that so far we have had two, fourI believe there were a total of 8 African-Americans of the 18 we have had so far.
The prosecutor then explained that he challenged Juror No. 5781 because he never smiled, despite jokes having been made. Instead, he was glaring at me the entire time. He did not appear he would be able to communicate well with the other jurors just based on his demeanor and body language. I was not comfortable in the manner in which he was answering the questions. Defense counsel said she did not observe a glare. The trial court said it didnt note that the juror never smiled. The court commented, I dont want to say glaring but looking out. And so I cant really comment on that. But I accept as valid and non-race related motives why the juror was excused.
As to his second challenge to Juror No. 9709, the prosecutor explained that based on the jurors belief that everyone had been unfair in her brothers murder case, although she never attended his trial, the prosecutor did not think she could be fair.
As to his third challenge to Juror No. 6878, the prosecutor agreed with the trial courts observations. The prosecutor said the juror slouched and was completely illogical. The court interjected, I agree he was slouched more than any juror I have ever seen. He was from the very beginning sitting down absolutely with his head on the back of the chair and leaning straight out. I never had a juror slouch like that. And that was disturbing to me. . . . I find each of the reasons that were voiced are absolutely valid without question.
The prosecutor then informed the court that his next challenge would be to Juror No. 6024. He said, She is the one who said she was sick. She was not listening to the court. And when the court asked the questions earlier, she also said she would have a hard time convicting someone because shes not there. So Im going to excuse her. Defense counsel objected, and said that Juror No. 6024 said she could be fair, although defense counsel conceded that the juror had also said she was sick. The court responded that merely because someone said they could be fair did not remove them from the peremptory challenge list.[4]
Thereafter, after excusing one other juror, Juror No. 1890, the prosecutor excused Juror No. 6024.
After the jury was selected, the prosecutor noted, without objection, that there were three African-American jurors on the panel.
C. The jurys verdict and sentence.
On February 27, 2006, the jury found defendant guilty of first degree murder. (Pen. Code, 187, subd. (a).) The jury also found true gun use allegations under Penal Code section 12022.53, subdivisions (b), (c), and (d).) On April 18, 2006, the trial court sentenced defendant to 25 years to life on the murder count plus 25 years under Penal Code section 12022.53, subdivision (d).
DISCUSSION
I. Wheeler/Batson issues.
Defendant contends that the prosecutions striking of African-American prospective jurors violated his right to equal protection under the Fourteenth Amendment to the United States Constitution.[5] For the reasons discussed below, we conclude the trial court did not err in denying his motion.
A. General principles.
The state and federal Constitutions prohibit using peremptory challenges to remove prospective jurors based solely on group bias, including race. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Our United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendants are made. 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.] (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
[A] defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (People v. Cornwell, supra, 37 Cal.4th at p. 67, quoting Johnson v. California, supra, 545 U.S. at p. 170, revg. in part People v. Johnson (2003) 30 Cal.4th 1302, 1318 [requiring the defendant to show that it is more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible group bias].) An inference is a logical conclusion reached based on a set of facts. (People v. Lancaster(2007) 41 Cal.4th 50, 74.) When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial courts ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. (People v. Guerra (2006) 37 Cal.4th 1067, 1101, quoting People v. Farnam (2002) 28 Cal.4th 106, 135; see also Lancaster, at p. 74 [we review the voir dire of the challenged jurors to determine whether the totality of the relevant facts supports an inference of discrimination].)
But, if a prima facie case is made, and the State offers a race-neutral justification for the challenges, then the trial court must make a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . . [Citation.] [Citation.] [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 peremptory challenge is being accepted by the court as genuine. [Citation.] Inquiry by the trial court is not even required. [Citation.] All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. [Citation.] A reason that makes no sense is nonetheless sincere and legitimate as long as it does not deny equal protection. [Citation.] (People v. Guerra, supra, 37 Cal.4th at pp. 1100-1101.)
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. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009.)[6]
B. The Wheeler/Batson motion was properly denied.
Defendant makes two contentions of error with respect to the Wheeler/Batson motion. He first contends that the trial court erred when it failed to find a prima facie case of discrimination based on the prosecutors use of four out of five challenges to remove African-Americans from the jury. Second, he contends that the trial court failed to sincerely evaluate the prosecutors race-neutral explanations for two of the challenges.[7]
Before we reach those contentions, we first correct two clear inaccuracies in defendants argument. First, defendant argues that before the prosecutor began his challenges he tried to eliminate an African-American female juror because she supposedly didnt understand the proceedings. Defendant refers to Juror No. 8, who the record clearly shows was neither African-American nor did the prosecutor think she was.
Rather, she was Hispanic.[8] Second, defendant states that the prosecutor challenged four African-American jurors in seriatum. That too is incorrect. The prosecutors fourth challenge was to Juror No. 1890, who was not African-American, or, at least, the record does not show that Juror No. 1890 was African-American, and the juror was not a part of the defendants Wheeler/Batson motion.[9]
We now move on to the actual contentions before us. Defendant argues that this matter must be remanded because the trial court erred in not finding that a prima facie case of discrimination had been made based on the prosecutors exercise of four out of five peremptory challenges to African-Americans. We do not agree that the court erred.
In Wheeler, supra, 22 Cal.3d at page 280, the California Supreme Court said that a party may make a prima facie case by showing that his or her opponent has struck most or all of the members of the identified group from the venire or has used a disproportionate number of his peremptory challenges against the group. (See also Miller-El v. Cockrell (2003) 537 U.S. 322, 342 [statistical evidence alone raised some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors where prosecutors used their strikes to exclude 91 percent of eligible African-American venire members, and only one served on the jury].) The court has more recently said that although a prosecutors excusal of all members of a particular group may establish a prima facie discrimination case, especially if the defendant belongs to the same group, this fact alone is not conclusive. [Citations.] (People v. Hoyos (July 23, 2007, S041008) ___Cal.4th ___ [WL 2079745, *18]; accord, People v. Young (2005) 34 Cal.4th 1149, 1173.) In Hoyos, the prosecutor struck three out of four Hispanic jurors, but he did not excuse all Hispanic jurors. Although Hoyos implies that a prima facie case of discrimination was not established on those facts (see also People v. Gray (2005) 37 Cal.4th 168, 187-188 [excusal of two African-American jurors and the retention of two failed to raised an inference of racial discrimination]), the court did not expressly so state. Instead, the court stated that in any event the record disclosed race-neutral reasons for the peremptory challenges.
In any event, the United States Supreme Court has indicated that there might be circumstances where statistics alone may raise an inference of discrimination, but this is not one of them. Rather, our California Supreme Court has indicated that the numbers cannot be viewed in isolation. Here, based on voir dire alone, it was certain that at least three of the four African-American jurors at issue would be excused. Juror No. 6878 displayed such a negative attitude that even the trial court felt compelled to comment that it was almost a certainty he would be excused. Juror No. 9709 had several negative brushes with law enforcement. Her equivocal answers to questions about her ability to be fair assured her excusal. Similarly, Juror No. 6024 was not paying attention and failed to answer a series of questions the trial court asked her. In fact, the trial court told her that she had gotten into a problem because of her failure to listen.
Moreover, the prosecutor did not excuse all African-American jurors. Rather, at the time defense counsel made her Wheeler/Batson motion, the prosecutor had excused three African-American jurors (Jurors Nos. 5781, 9709, and 6787), leaving three on the panel in addition to two in alternate positions. The prosecutor then excused a fourth juror, Juror No. 6024. At the conclusion of jury selection, three African-American jurors were on the panel. That African-Americans were left on the jury is not conclusive, but it is an indication of the prosecutors good faith in exercising his peremptories. (People v. Snow (1987) 44 Cal.3d 216, 225; accord, People v. Cornwell, supra, 37 Cal.4th at p. 70.)
Also, where, as here, a prosecutor voluntarily explains his dismissals, we may assume, without deciding, that a prima facie case was made and proceed directly to the second and third steps under Wheeler/Batson. (See People v. Zambrano (July 30, 2007, S035368) ___ Cal. ___ [WL 2164057]; cf. Hoyos, supra, 2007 WL 2079745; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1010; People v. Ward (2005) 36 Cal.4th 186, 200-201.) Therefore, even assuming a prima facie case was made as to the four jurors, the record supports race-neutral reasons for excusing Jurors Nos. 5781, 9709, 6878, and 6024.
The prosecutor explained he was excusing Juror No. 5781 because the juror glared at him, he was concerned with how well the juror would communicate with the other jurors, the juror had a negative demeanor and body language, and the way he answered the questions. Defense counsel said she never saw the juror glare. The trial court said that it didnt note that the juror never smiled. But the court also said it saw the juror I dont want to say glaring but looking out.
The prosecutor was entitled to rely on the prospective jurors body language . . . as a basis for rebutting a prima facie case of exclusion for group bias. (People v. Reynoso (2003) 31 Cal.4th 903, 917, quoting People v. Fuentes (1991) 54 Cal.3d 707, 715.) Even trivial explanations may be valid so long as the explanations are reasonably specific and neutral. (Reynoso, at p. 917; accord People v. Jones (1998) 17 Cal.4th 279, 294.) The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. (Reynoso, at p. 924.)
Defendant also argues that because the prosecutor alone observed the glaring the trial court should have conducted a further inquiry. By failing to do so, the trial court failed sincerely to evaluate the justification for eliminating Juror No. 5781, defendant argues. We disagree. The record is clear that the court sincerely evaluated the prosecutors justification. Although the trial court could not say that the juror was glaring, the court did note that the juror was looking out. The court then went on to say it accepted the jurors excusal as valid and nonrace-related. Therefore, the court agreed that there was something in the jurors behavior to justify the prosecutors challenge to the juror.
2. Juror No. 9709.
Juror No. 9709 had been arrested for petty theft. Her brother was also in jail for murder. Although she did not attend her brothers court proceedings, she felt that he was treated unfairly by all involved in his case. Nevertheless, she said it shouldnt affect her ability to be fair in this case. She also was not sure whether she would be able to put her feelings about what happened to her brother aside. Upon further questioning, the juror said that what happened to her brother shouldnt affect her, but she couldnt give a definite answer. The juror also had a bad experience with law enforcement; officers broke into her home without a warrant. The juror said that this incident wouldnt impact her ability to be fair.
These facts amply support the jurors excusal. Juror No. 9709s own arrest and her brothers conviction gave the prosecutor legitimate reason to excuse her. (People v. Wheeler, supra, 22 Cal.3d at pp. 275, 277, fn. 18.) Moreover, Juror No. 9709 was equivocal about whether she could be fair in this case. This too provided an additional, legitimate reason to excuse her.
3. Juror No. 6878.
The record is also more than adequate to support Juror No. 6878s excusal. He had been a victim of crime and had been arrested for a crime. Both circumstances constituted neutral grounds to excuse him. (People v. Wheeler, supra, 22 Cal.3d at
pp. 275, 277, fn. 18.) Moreover, the trial court and prosecutor made a very clear record that the juror displayed negative behavior. For example, the court said that it got very, very bad vibes from the juror. The juror slouched to the extent he was almost reclining. A bad attitude is a legitimate ground to excuse a juror. (See, e.g., People v. Guerra, supra, 37 Cal.4th at p. 1102 [trial court said it would have excused a juror who had an attitude and a very disturbing chip on his shoulder].)
4. Juror No. 6024.
The record also is replete with legitimate reasons for excusing Juror No. 6024. The juror was coughing in court and said she was sick, although she contradictorily also said she was feeling well. When the trial court questioned her, it was apparent she had not been listening and had not followed the courts instructions. Therefore, she was legitimately excused.
Defendant, however, argues that the reasons the prosecutor gave for excusing this jurorthat she was sick and was not listening to the courtwere implausible and specious and that the trial court failed to sincerely evaluate the reasons for excusing her. Defendant points out that although the juror said she was under the weather, she also said she was listening and would be fair. The jurors assertion that she was listening, however, was belied by her failure to follow the trial courts instruction to take out pen and paper and to answer questions correctly about instructions the court had given. For example, the court asked her what was a question it had asked jurors to consider; Juror No. 6024 said she didnt remember because she wasnt feeling good. The court asked the juror to whom it was referring when it used you; the juror replied it meant me. The court, however, had broadly defined you to include immediate family and close personal friends. Therefore, there was nothing implausible or specious about the reasons the prosecutor gave for challenging Juror No. 6024.
Defendant, however, next argues that the prosecutor mischaracterized the jurors statements. The prosecutor said, She is the one who said she was sick. She was not listening to the court. And when the court asked the questions earlier, she also said she would have a hard time convicting someone because shes not there. So Im going to excuse her. (Italics added.) What the juror had said was: Ive always said if I would be called to jury, it would be very hard for me to decide whether that person . . . is guilty or not. I dont care what the evidence was. I wasnt there. And that is just me.
The prosecutor did not mischaracterize the jurors statement. The prosecutor interpreted the juror to mean that she would have a hard time convicting someone because she wasnt there when the crime was committed. That was a fair interpretation of what the juror said. But defendant argues that the juror meant she did not have a predisposition in this case because she wasnt there, and therefore she could be fair. That too is a fair interpretation. That there might be two interpretations of the jurors comment does not mean that the prosecutor mischaracterized that comment to create a pretextual reason for excusing the juror. To the contrary, the juror, when asked if she could be fair, qualified her answer, which, by itself, is enough to give pause.
In any event, as we discussed above, the challenge to the juror was legitimate based on her failure to pay attention.
II. Prosecutorial misconduct.
Defendant next contends that the prosecutor committed prejudicial misconduct in his closing argument. We disagree.
A. General principles.
A prosecutors rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.] (People v. Espinoza (1992) 3 Cal.4th 806, 820.) A defendants conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] (People v. Crew (2003) 31 Cal.4th 822, 839.)
A prosecutor has wide latitude during argument so long as the argument is a fair comment on the evidence, which includes reasonable inferences or deductions drawn therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.) For example, although a prosecutor may not vouch for a witnesss credibility or otherwise bolster the veracity of a witnesss testimony by referring to evidence outside the record (People v. Anderson (1990) 52 Cal.3d 453, 479), so long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, her comments cannot be characterized as improper vouching. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 971.)
Moreover, the prosecutors statements must be viewed in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.)
B. No prejudicial prosecutorial misconduct occurred.
During closing argument, the prosecutor made two comments, which defendant now contends constituted misconduct. We disagree.
First, in the context of discussing Thomas Greenwoods credibility, the prosecutor said, Now, Greenwood admits, quite frankly, as to some of the crimes he did. And, honestly, it is hard sometimes to listen to the gang mentality because in a way he justifies shooting at people just because he believes theyre from a rival gang. And as a D.A., even though hes testifying I believe truthfully and against defendant in this case, it is still hard to take. (Italics added.) Defense counsel objected to the prosecutors opinion on this [] witness[s] testimony. The trial court told the jury to disregard I believe if he used those words.
Where a prosecutor properly relies on facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, the prosecutor will not be found to have improperly vouched for a witness. (People v. Medina (1995) 11 Cal.4th 694, 756; see also People v. Stansbury (1993) 4 Cal.4th 1017, 1059 [argument that witness was believable and had done much soul searching was proper comment based on the evidence], reversed on other grounds by Stansbury v. California (1994) 511 U.S. 318.) In Medina, the prosecutor said in closing argument that ballistics experts appeared honest, had no reason to lie, were not being paid for testifying, and told the truth to the jury. The court found no misconduct, stating, Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper vouching, which usually involves an attempt to bolster a witness by reference to facts outside the record. (Medina, at p. 757.)
Similarly, here, the prosecutor made the contested comment in the context of reviewing the credibility of certain witnesses who were present around the time of the shooting. The comment and ensuing objection occurred just when the prosecutor began to discuss why the evidence showed that Thomas Greenwood testified truthfully. After the objection, the prosecutor continued by pointing out that Greenwood testified to crimes that he had committed and explained his gang mentality. When Greenwood found out that defendant had implicated him in another crime, thereby breaking the gang code of silence, Greenwood decided also to break the code and implicate defendant in Perkinss shooting. It also made a difference to Greenwood that Perkins was not a gang member, but an innocent bystander. Placed in this context, the prosecutors statement that Greenwood testified, I believe truthfully, was not improper vouching. Rather, the comment was based on facts found in the record, rather than outside it. Therefore, no misconduct occurred.
The second alleged incident of misconduct occurred when the prosecutor began his rebuttal argument by saying, I just want to address a few of the issues that [defense counsel] brought up. And I want you to understand none of this is personal between [defense counsel] and myself. Obviously, we have different roles to play. She has to defend her client. I respect that, and I understand that. And I also understand that she truly has very little to work with in this case. (Italics added.) Defense counsel objected to the comment on what I do or what I think, that the implication is clearly there thinking that I have nothing to work with. That is misconduct and ask that the jury be admonished.
The court replied, No. No. The statement is that you have very little to work with in this case. Now, that is his statement. That isnt evidence. That is a position hes taken you have very little to work with in this case. Now, hes not saying that you think that. Hes saying that is a fact. So that is perfectly proper. The court nevertheless instructed the jury that it was not to imply or try to guess what [defense counsels] state of mind is. That is not in issue here at all. The issue is the evidence and what the evidence is recorded and the inferences you draw from it. The argument itself that you have little to work with, he can say that. The jury doesnt have to believe it.
The prosecutors comment did not amount to misconduct. It was merely a comment on the state of the evidence. [A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.] It is misconduct, however, to suggest to the jury in arguing the veracity of a witness that the prosecutor has information undisclosed to the trier of fact bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that the jury will believe that inculpatory evidence, known only to the prosecution, has been withheld from them. [Citations.] (People v. Padilla (1995) 11 Cal.4th 891, 945-946, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; see also People v. Frye, supra, 18 Cal.4th at pp. 975-976.) The comment here was merely one about the quality of the case, and, moreover, the prosecutor made no suggestion that there was other, undisclosed evidence bearing on the case.
In any event, the comments at issue were so brief that they simply did not constitute either the type of egregious conduct that so infects a trial as to render it unfair under the federal Constitution or a deceptive or reprehensible method to attempt to persuade either the court or the jury under the state Constitution. (People v. Espinoza, supra, 3 Cal.4th at p. 820.) Moreover, the trial court instructed the jury, first, to disregard the prosecutors statement about what he believed. Second, the court instructed the jury that the prosecutors statement that the defense had little to work with was not evidence, was not a statement about the defense counsels state of mind, and that the jury could choose not to believe it. We presume the jury followed those instructions. (People v. Pinholster (1992) 1 Cal.4th 865, 925.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
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[1] Because the issues on appeal concern jury selection and alleged prosecutorial misconduct in closing argument, we briefly state the facts.
[2] See footnote 9, post.
[3]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
[4] The court did not make an express finding that there was or was not a prima facie case as to Juror No. 6024.
[5] The People state that defendants contention on appeal is the prosecutor was a racist, and used his racism to improperly exclude African-American jurors. That is not the contention raised. The Peoples comment is unnecessary and inflammatory.
[6] Defendant appears to suggest that the trial court employed the improper more-likely-than-not standard that was disapproved by Johnson v. California, supra, 545 U.S. 162. The record does not support that suggestion. In any event, even under an independent review of the record our conclusions do not change. (See, e.g., People v. Guerra, supra, 37 Cal.4th at p. 1101.)
[7] In passing, defendant states in his opening brief that appellate courts may look to comparative evidence in the record to assess whether a nonracial justification for a challenge was bona fide. If by this passing reference defendant intended to raise comparative juror analysis, defendant was unsuccessful. Our long-standing practice has been that a reviewing court must consider evidence of comparative juror analysis when a defendant has presented such evidence at the trial court; such an analysis need not be conducted for the first time on appeal. (People v. Guerra, supra, 37 Cal.4th at p. 1106.) Defendant presented no such evidence and made no such argument in the trial court. We therefore do not consider the issue on appeal.
[8] After the first 18 jurors were empanelled and questioned, the defense passed for cause, but the prosecutor had a problem with jurors who said they couldnt understand English. He referred to Juror No. 8, who said she understood 60-65 percent. Misunderstanding to whom the prosecutor was referring, the trial court said that the Black lady didnt have a problem understanding. The prosecutor then clarified that he was referring to Juror No. 8, who was Hispanic, and the court said Im wrong. Youre right.
[9] The People also dispute that Juror No. 9709, as to whom the prosecutor exercised his second challenge, was African-American. Although defense counsel certainly did not make the clearest record, the record nonetheless does show that Juror No. 9709 was an African-American woman. The relevant facts are: The prosecutor challenged Jurors Nos. 5781, 9709, and 6878, in that order. Defense counsel then made the Wheeler/Batson motion, but she never clearly specified which jurors were at issue. Rather, she said that the last number 687[8] [and] the first [5781] was African-American. Defense counsel did not at that time refer to Juror No. 9709 as either being African-American or as being a part of the Wheeler/Batson motion. But later, after the trial court talked about Juror No. 6878, defense counsel said, Well, if you take his [Juror No. 6878] case along with the two other jurors who were also African-American including Juror No. [5781], again, who had no apparent reason why he would be excused. (Italics added.) The court then invited the prosecutor to make a record with respect to Jurors Nos. 5781 and 9709. There would have been no need for the prosecutor to make a record as to Juror No. 9709 if she were not African-American.
