P. v. Shirley

Filed 5/4/07 P. v. Shirley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

Defendant appeals from the judgment after a jury found him guilty as charged of second-degree robbery (Pen. Code, 211)^[1]and first-degree burglary. ( 459)^[2] The trial court found true the allegations that he suffered seven prior serious or violent felony convictions ( 667, subd. (b)-(i) and 1170.12)^[3]and sentenced him to an aggregate prison term of 50 years to life plus a 20-year determinate term of imprisonment.

On appeal, he contends the trial court erred by denying his motion under Batson/Wheeler^[4]and his motion to exclude eye witness identification testimony. He also claims there is insufficient evidence of force or fear to sustain the robbery conviction.

We find no error and shall affirm the judgment.

FACTUAL BACKGROUND^[5]

On February 21, 2004, 16-year-old Natalie Santos worked at the Subway sandwich shop (Subway or shop) in Sacramento making sandwiches and tending the cash register. Around 5:30 p.m., while she was working, defendant entered holding a dollar bill in his hand.^[6] She greeted him and walked to the cash register where he asked her the price of the cookies. As she spoke to him, she got a good look at his face. He handed her the dollar bill and she rang up the purchase. However, as soon as the cash drawer opened, he reached across the counter, with his stomach on the counter and his feet in the air, and grabbed some money from the drawer.

Santos was frightened and screamed. She ran to the back office, grabbing her co-worker en route, locked the office door, and called 911. As she was speaking to the 911 operator, Santos continued to watch defendant from a television monitor that was connected to a security camera. She saw him lean across the counter, remove money from the cash drawer, and then leave through the front door of the shop.

When Santos exited the office, she saw the cash register drawer had fallen to the floor along with its cash contents. An accounting indicated defendant had removed $80 from the drawer.

On February 26, 2004, Detective Biondi contacted Santos at her home and showed her a six-man photographic lineup from which she positively identified defendant as the man who robbed her. She also identified him at trial.

Defendant did not testify and presented no affirmative defense to the charge for robbery. The question of his identity was raised on cross-examination.

DISCUSSION

I.

Batson/Wheeler

Defendant contends the trial court erred when it denied his motion under Batson and Wheeler on the grounds the prosecutor had improperly exercised his peremptory challenges to exclude two members of the venire based solely on race. Respondent contends the trial court properly denied the motion because defendant failed to establish a prima facie case of discrimination.^[7] We agree with respondent.

A. Procedural Background

At the start of jury selection on March 21, 2005, the trial court began by posing routine questions to the prospective jurors and initially excused three such jurors for illness, hardship, and cause.

Lesley L. (Ms. L.) was then selected as a prospective juror. In response to questions previously posed by the court, Ms. L. informed the court that defendant looked familiar to her. She also explained that she had met a business contact the previous week with the same last name as defendant. Following an unreported bench discussion, the court told Ms. L. that the owner of that business might be related to the Defendant as a cousin or relative . . . . Ms. L. further informed the court that she had met somebody in the audience who she had met socially on a prior occasion. She identified that person as Kimberly A., who was later called as a potential juror and dismissed by stipulation of the parties.

Upon further questioning by the court based on the juror questionnaires, Ms. L. indicated that she worked in sales and management, that she had prior jury service and had been the victim of several crimes.

In response to questions by the prosecutor, Ms. L. said she had been arrested and convicted of a misdemeanor sometime between 1991 and 1993. After several rounds of peremptory challenges, Ms. L. was still seated in the jury box and the court called additional prospective jurors. The prosecutor excused Ms. L. during the next round of challenges.

Rita O. (Ms. O.) was called as a prospective juror later that same morning. To the courts questions, she indicated she developed photographs at a local Walgreens, that she graduated from high school in 2002, and she had worked for Walgreens for two years. She had no prior jury service and no reluctance or hesitation to be a juror. When questioned by the prosecutor, Ms. O. said she thought serving on a jury would be a good experience. When he asked her if she make[s] some tough calls, she responded um-hum and then yes. The prosecutor excused her on the next round of peremptory challenges.

After the People passed the jury three times, the defense brought a Batson/Wheeler motion on the grounds that a couple of jurors have been excused based upon race and therefore there is a reasonable inference they were dismissed because of their race. Counsel informed the court that four black jurors had been dismissed. Two of them were dismissed by stipulation, one because he was ill, the other because she did not think she could sit in judgment of another person. Counsel also conceded that one black juror, juror number 12, remained on the jury but he did not see any reason for dismissing Ms. L. and Ms. O.

The court found counsels recitation of the facts was correct and indicated that Ms. L.s misdemeanor conviction related to fraud, which may have reflected, and in fact, did reflect upon her moral turpitude. Ms. O. ostensibly appeared to be an acceptable juror. She was young, although she did express an interest in being on the panel. [] But except for Ms. [Os] possible improper excusal, I dont see any pattern of exercise of improper peremptory challenges by the People. [] So I find there is no prima facie case or demonstration of an improper exercise of . . . peremptory challenges against African Americans, especially in light of the fact that we have one original juror . . . still on the jury, or at least potential jury, who is one of the original 12 who were summoned in the jury box, who is still present.

B. Analysis

The Fourteenth Amendment to the United States Constitution prohibits the exercise of a peremptory challenge based solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the States case against a black defendant. (Batson, supra, 476 U.S. at p. 89 [90 L.Ed.2d at p. 83]; Miller-El v. Dretke (2005) 545 U.S. 231, 237 [162 L.Ed.2d 196, 212].) Under article I, section 16 of the California Constitution, such conduct violates a defendants right to trial by a jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Huggins (2006) 38 Cal.4th 175, 226.)

Batson sets forth a three-step process to guide the trial courts constitutional review of peremptory challenges. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138], fn. omitted (Johnson).)

To establish a prima facie case, the defendant first must show that he is a member of a cognizable racial group [Citation], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the 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 [90 L.Ed.2d at pp. 87-88].)

In deciding whether the defendant has made a prima facie case, the trial court should consider all the relevant circumstances. (Batson, supra, 476 U.S. at p. 96 [90 L.Ed.2d at p. 88].) Illustrative examples of such circumstances include a pattern of discrimination against racial minorities, the impact of the prosecutions challenge on the composition of the jury, and the prosecutors questions and statements during jury selection. (Batson, supra, 476 U.S. at p. 97 [90 L.Ed.2d at p. 88]; United States v. Vasquez-Lopez (9th Cir. 1994) 22 F.3d 900, 902.)

While the Constitution forbids striking even a single prospective juror for a discriminatory purpose (United States v. Lorenzo (9th Cir. 1993) 995 F.2d 1448, 1453-1454), striking the only black juror from the venire does not, by itself, raise an inference of discrimination and without more, is not per se unconstitutional. (United States v. Vasquez-Lopez, supra, 22 F.3d at p. 902.)

Under Wheeler, supra, 22 Cal.3d 258, the California standard for evaluating the constitutionality of a prosecutors use of peremptory challenges is reviewed under a similar three-step process. (People v. Reynoso (2003) 31 Cal.4th 903, 915.)^[8] However, Wheeler requires that the defendant establish a prima facie case by showing there is a strong likelihood the prosecutor exercised his or her peremptory challenges in a discriminatory manner. (22 Cal.3d at p. 281.)

Although the California Supreme Court held that this standard is equivalent to the reasonable inference standard required by federal law (see People v. Johnson (2003) 30 Cal.4th 1302, 1313), the United States Supreme Court found it at odds with Batson. (Johnson, supra, 545 U.S. at p. 173 [162 L.Ed.2d at p. 141]). Batson is satisfied by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (Id. at p. 170 [at p. 139].)

The trial court ruled on defendants motion on March 22, 2005, prior to the decision in Johnson, supra, 545 U.S. 162 [162 L.Ed.2d 129], which was filed on June 13, 2005. The trial court did not state the standard it applied when ruling on defendants motion. However, because the trial court is presumed to have known and applied the correct law (Evid. Code, 664; People v. Sangani (1994) 22 Cal.App.4th 1120, 1138), we must assume it applied the law as it then existed, which was the law as stated in People v. Johnson, supra, 30 Cal.4th 1302. We shall therefore assume the trial courts decision is not entitled to deference and shall apply the Johnson standard to resolve the legal question whether the record supports an inference that the prosecutor excused the two jurors on the basis of race.(People v. Avila (2006) 38 Cal.4th 491, 554; People v. Cornwell (2005) 37 Cal.4th 50, 73.)

We now turn to the record to determine whether under all the relevant circumstances, a reasonable inference is raised of racial discrimination and find no such inference may be raised. There is no dispute that black jurors are a cognizable group for purposes of Wheeler and Batson (People v. Clair (1992) 2 Cal.4th 629, 652) and that defendant and Ms. L. and Ms. O. are black. However, the mere fact both of these jurors are black is insufficient alone to raise an inference of discriminatory purpose. (People v. Box (2000) 23 Cal.4th 1153, 1188-1189; People v. Turner (1994) 8 Cal.4th 137, 167.) Turning to that question, when the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm. (People v. Box, supra, 23 Cal.4th at p. 1188.)

Here the prosecutor had two race-neutral reasons for dismissing Ms. L. She had a prior misdemeanor conviction for fraud which clearly constitutes a race-neutral basis for dismissing her (Wheeler, supra, 22 Cal.3d at pp. 275-276 [dismissal is proper when a juror has a prior criminal record]; People v. Ledesma (2006) 39 Cal.4th 641, 679 [same]) and her familiarity with the defendant and one of his relatives suggests she might be biased towards defendant. (People v. Cummings (1993) 4 Cal.4th 1233, 1282 [dismissal of a juror because he might know the defendant is a race neutral reason].) Singly or in combination, these two circumstances provide an adequate race neutral basis for dismissing her.

As to the prosecutors challenge of Ms. O., the record shows she was quite young, about 21- or 22-years old at the time of trial. As defendant concedes, age and corresponding lack of life experience are acceptable race-neutral reasons to dismiss her. (United States v. Ferguson (7th Cir. 1991) 935 F.2d 862, 865 [age is a legitimate race-neutral basis for a peremptory strike].)

Other circumstances further defeat a reasonable inference the prosecutor dismissed Ms. O. based upon her race.^[9] First, the record shows he excused several other prospective jurors who were also young and demonstrated a lack of life experience. [Ms. W. - student who lived at home with her family]; [Mr. C. -lived at home with his parents]; [Ms. V. - 19 years-old and unwilling to share her opinion with other jurors].)^[10]

Second, the prosecutors questions and statements to the venire indicated that one of his primary concerns was that jurors would be capable of deliberating, sitting in judgment of another person and making tough calls, questions he asked Ms. O. and several other members of the venire. The record also shows that the individuals who were selected to sit on the jury were reasonably intelligent and had a good deal of work and/or life experience.^[11] These characteristics were also present in Juror Number 12, a black juror who was an accountant for a political law firm and worked with attorneys on political campaign reporting laws.

In all, there were 55 members of the venire who were called for voir dire. Five of them were black. Two of those five were excused by stipulation, two were excused by the prosecutor, and one served on the jury. (People v. Avila, supra, 38 Cal.4th at p. 556 [exclusion of one black juror is insufficient to establish a prima facie case where another black juror remained as a prospective alternate and eventually served as a juror].)

In sum, the totality of these circumstances fail to raise an inference that the prosecutor exercised his peremptory challenges based upon improper group bias. We therefore reject defendants claim of error.

II.

Photographic Eye Witness Identification

Defendant contends the trial court erred by denying his request to suppress Santos pretrial photographic identification as well as her in-court identification of defendant. He argues that both identifications should have been excluded because the photographic lineup was impermissibly suggestive in view of the fact he was the only person in the lineup with crossed-eyes. Respondent argues the lineup was not unduly suggestive and was reliable under all the circumstances. We agree with respondent.

A. Procedural Background

Defendant filed a written motion to exclude Santos pretrial identification of defendant on the grounds her identification was tainted by an unduly suggestive six-person photographic lineup procedure in which defendant was the only cross-eyed individual in the lineup. The only facts before the trial court included those recited by the defendant and the prosecution. Those facts indicate that a black male entered Subway on February 21, 2004, at approximately 5:35 p.m., approached the counter and asked Santos, the cashier, the price of the cookies. The male told her he wanted two cookies but when she opened the cash register, he leaned across the counter and grabbed the cash drawer. Santos screamed and ran to the back office where she watched the robber through a security surveillance system. She saw the robber take money from the cash till and flee the restaurant. When a deputy from the sheriffs department responded to the scene, Santos described the robber as a tall thin male black, 6 feet one inch, 185 pounds, with a bald head, brown eyes and the whites of his eyes a brownish yellow. He looked like he was cross eyed and had big lips. A second employee described the robber as a male black, not skinny or fat, a little overweight, no hair, bald and top of head shiny. He was tall. Not wearing gloves. A copy of the photographic lineup was attached to defendants motion as Exhibit A as was defendants mug shot. The defense also provided the trial court with the colored six-person photographic lineup.

The prosecutions opposing papers further indicate that on February 26, 2004, Detective Biondi showed Santos a photo lineup comprised of six subjects, including defendant. Santos read and signed an instruction form prior to viewing the lineup, which stated in part that the person who committed the crime may or may not be in the group of photographs and that she was in no way obligated to identify anyone. Santos told Biondi she understood the instructions. When he showed her the lineup, she looked at all of the pictures and then pointed to defendant, stating Him. This is him. I remember those eyes. Santos subsequently indicated that when she viewed the lineup, she recognized not only defendants eyes, but his entire face. Defendant did not dispute any of these facts in the trial court.

At the hearing, defense counsel requested that the court also exclude Santos in-court identification as tainted by the pretrial procedure and argued that a lineup could be comprised of five other individuals who are told to cross their eyes for the photograph. The photographic lineup was the only evidence before the court.

The trial court denied the motion without prejudice, advising counsel that he could still request a 402 hearing in order to question the victim. No such hearing was requested however.

The evidence at trial was consistent with the facts outlined above. In addition, Santos testified at trial that she was a hundred percent sure of her photographic identification of defendant as the man who robbed her because she recognized and remembered his eyes and his whole face, which was imprinted in [her] mind. Biondi testified that he selected the other five individuals in the lineup by using people who were the same sex, race, and age and had the same general description, general hair length, and facial hair of the suspect.^[12]

B. Analysis

The due process clause requires the exclusion of testimony of a photographic identification only if the identification procedures used were (1) unnecessarily suggestive and (2) the resulting identification was unreliable. (People v. Yeoman (2003) 31 Cal.4th 93, 123; Manson v. Brathwaite (1977) 432 U.S. 98, 106-114 [53 L.Ed.2d 140, 148-154]; Neil v. Biggers (1972) 409 U.S. 188, 196-199 [34 L.Ed.2d 401, 409-411.]

The test for determining the first prong, whether a procedure is unnecessarily suggestive, is whether anything caused defendant to stand out from the others in a way that would suggest the witness should select him. (People v. Carpenter (1997) 15 Cal.4th 312, 367.) A photographic lineup is sufficiently neutral where the persons in the photographs are similar in age, complexion, physical features, and build. (People v. Johnson (1992) 3 Cal.4th 1183, 1217 [all photographs were of black males of the same age, complexion, and build and generally resembled each other].)

However, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspects photograph is much more distinguishable from the others in the lineup. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) The courts have upheld the validity of lineup identifications despite disparities among the participants. (See People v. Guillebeau (1980) 107 Cal.App.3d 531, 556-557 [defendant had the darkest skin color]; People v. Johnson, supra, 3 Cal.4th at pp. 1215-1218 [the defendant was the only person in jail clothing]; People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [the defendant was the only man in a red shirt].)

In People v. Smith (1980) 109 Cal.App.3d 476, the court rejected a similar claim where the defendant was the only individual in a six-person lineup with a bad eye. The court found it questionable whether the mere fact that the defendant was the only person in the photographs with a bad eye was improperly suggestive, as it represents only one of many physical characteristics of a face which could be readily identifiable. The difficulty of finding photographs of individuals with bad eyes similar to that of defendant is also apparent. (Id. at p. 487.)

Defendant has the burden of establishing there was a substantial likelihood of irreparable misidentification under the totality of the circumstances. (People v. Cunningham (2001) 25 Cal.4th 926, 990; Manson v. Brathwaite, supra, 432 U.S. at pp. 104-107 [53 L.Ed.2d at pp. 147-150].) Relevant factors in making that showing include the opportunity of the witness to view the criminal at the time of the crime, the witness degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. (Manson v. Brathwaite, supra, 432 U.S. at pp. 114, 117 [53 L.Ed.2d at pp. 154, 156]; Neil v. Biggers, supra, 409 U.S. at pp. 199-200 [34 L.Ed.2d at p. 411].)

Here the photographic lineup included six black males who were similar in age and skin tone, they all had wide set eyes, a thin mustache, and were balding. While defendant was the only one in the lineup with a crossed eye, at least two of the other males looked similar to him and had other common facial features. In light of the similarity between defendant and the other subjects and the fact his crossed eye was just one of the many features that made him identifiable (People v. Smith, supra, 109 Cal.App.3d at p. 487), we find the lineup was not impermissibly suggestive.

Moreover, there is no substantial likelihood Santos misidentified defendant when she viewed the six photographs. She saw defendant as he walked into the store and headed for the counter, she looked at his face when she stood across the counter from him and discussed the price of cookies, and she watched him on the security monitor after she locked herself in the back office. About 10 minutes after the burglary, Santos spoke to a sheriffs deputy and described the robber as having crossed eyes and also told him the robbers eyes were brown, the whites of his eyes were yellowish, and he was bald and had big lips. Thus, defendants cross-eyed condition was not the only feature she noticed about his eyes nor the only facial feature she remembered. Five days after the robbery, she was shown the photographic lineup and cautioned that she was not obligated to identify anyone, but she was able to positively and without hesitation identify defendant stating I remember those eyes. Since her description of his eyes was three-fold, her reference to his eyes was not necessarily limited to his one crossed eye. Under these circumstances, defendant has failed to show Santos pretrial identification was unreliable or that her in-court identification was tainted.

Moreover, [a]s long as the photographs from which the witness made his identification are preserved and available at trial, counsel for the accused, by using them in cross-examination of prosecution witnesses, can easily reveal the possibility of prejudice and thereby impugn the identification testimony. (People v. Lawrence (1971) 4 Cal.3d 273, 278-279, fn. omitted.) The photo lineup was available at trial and counsel actively cross-examined Santos about her identification. At trial, she testified that when she was looking at the photo lineup, she was looking for the face of the guy that robbed me, wasnt just necessarily his eyes. It was . . . his whole face. She further testified that she was 100 percent certain about the accuracy of her identification.

Contrary to defendants assertions, the discrepancies between Santos description of defendant and information on sheriffs records is not dispositive.^[13] The jury was able to see defendant during the trial and these differences were all brought out during cross-examination. Accordingly, we find no error.

III.

Substantial Evidence of Force or Fear

Defendant contends there is insufficient evidence of force or fear to sustain the conviction for robbery. He argues there is no evidence Santos feared he would injure her or her property, nor is there any evidence he used or attempted to use any physical force on her. He made no threat, displayed no weapon, and when the cash register opened, he lunged for the money, not for Santos. Respondent contends there is substantial evidence of force and fear. We agree with respondent.

A claim based on insufficiency of the evidence is reviewed in the light most favorable to the prosecution and may not be reversed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Akins (1997) 56 Cal.App.4th 331, 336.) Moreover, we must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Robbery is defined as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) To secure a robbery conviction, the prosecution must prove the following elements: 1) A person had possession of property of some value however slight; (2) the property was taken from that person or from his immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent permanently to deprive that person of the property. (CALJIC No. 9.40.) (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.)

The fear required for robbery includes fear of an unlawful injury to the person or property of the person robbed . . . . ( 212, subd. 1.) Fear may be proved by circumstantial evidence, including the circumstances and conduct involved in taking the property. (People v. Holt (1997) 15 Cal.4th 619, 690.) The victims fear need not be induced by an express threat. (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) It is sufficient if there is evidence to support an inference the victim was in fact afraid and that such fear either allowed the crime to be accomplished in the first instance (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2) or enabled the robber to retain the property after the initial taking. (People v. Flynn, supra, 77 Cal.App.4th at p. 772.) Where intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear . . . . (People v. Brew (1991) 2 Cal.App.4th 99, 104 (Brew).) Such circumstances include the relative size difference between the defendant and the victim. (Ibid.)

In Brew, supra, 2 Cal.App.4th 99, the reviewing court found more than ample evidence of fear to support the conviction for robbery. There the defendant approached a cashier of a drugstore and pretended to purchase an item. He was considerably larger than she was and without any counter between them, he stood two or three feet away from her so she could smell alcohol on his breath. He proceeded to make a bogus purchase, which caused the victim to open the cash register drawer, and when she started to put his money into the drawer, he interjected himself physically between her and the cash register causing her to step back in fear. He was not armed, he did not assault her or verbally threaten her. (Id. at p. 104; see also People v. Davison (1995) 32 Cal.App.4th 206, 216 [finding sufficient evidence of force where the victim was confronted by two men at an automatic teller machine and ordered to stand back].)

The facts in the present case are remarkably similar to those in Brew. There can be no dispute defendants conduct frightened Santos. Defendant was considerably larger than Santos and as she testified, she was frightened and fled to the back office where she locked the door. Although there was a counter between defendant and Santos while he feigned to make a purchase, it did not prevent him from suddenly and brazenly leaning across it to grab money from the cash drawer and come very close to Santos. The jury could reasonably find defendants considerable size and his sudden and unexpected movement towards Santos were sufficiently intimidating to cause her to flee in fear, allowing him to take the money without opposition.

Nor is it dispositive that Santos failed to testify she was afraid he would physically injure her. (People v. Lescallett (1981) 123 Cal.App.3d 487, 492 [testimony by the victim she was frightened is sufficient]; Brew, supra, 2 Cal.App.4th at p. 104 [testimony the victim was scared is sufficient].) Detective Biondi testified that when he asked Santos whether defendant threatened her or tried to attack her, she indicated that when he leaned across the counter and grabbed the money, he scared [her] to death. Under these circumstances, the jury could reasonable find she was afraid he would physically injure her if she opposed his efforts to take the money.

Defendant also questions the wisdom of Brew, arguing that by effectively equating proximity with the elicitation of fear, Brew improperly merges the elements of immediate presence and force and fear. We disagree. Defendants argument confuses the concept of a definitional element with the concept of evidence relevant to prove an element. The fact his proximity to the victim is relevant to prove both elements does not eliminate the necessity of proving both elements.

Last, defendant relies on People v. Welsh (1936) 7 Cal.2d 209, where the Supreme Court struck down convictions for robbery and kidnapping for robbery concluding there was no evidence that either force or fear was used to take cigarettes from the victim or that she was afraid to resist that taking. The evidence showed the defendant and another male seized the victim, threw her into their vehicle, placed her between them, and drove off. She had her hand on her purse, which held some cigarettes, money, and other items. The defendant took her purse, removed the cigarettes and returned it to her lap. The court reasoned that no money was taken or any act committed which indicated the defendant intended to rob the victim of anything other than her virtue. (Id. at p. 212.)

Welsh is inapposite because here the victim testified she was scared and ran from defendant, allowing him to take $80 from the cash register. Accordingly, we find substantial evidence to support the jurys implied finding that defendant took money from Santoss immediate presence by means of fear.

DISPOSITION

The superior court is directed to prepare an amended abstract of judgment reflecting that defendant was convicted of violating Penal Code section 459 and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

BLEASE , Acting P. J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] All further section references are to the Penal Code unless otherwise specified.

^[2] Although not raised by the parties, we note that the Abstract of Judgment contains a clerical error, namely that defendant was convicted of first-degree burglary in violation of section 259. Since first degree burglary is a violation of section 459, we shall order that the Abstract of Judgment be corrected.

^[3] The information further alleged that defendant suffered two prior prison terms. ( 667.5, subd. (b).) The trial court found those two allegations were alternative allegations based on the same convictions alleged as prior serious or violent felonies and did not impose additional prison time for these two allegations.

^[4]Batson v.Kentucky(1986) 476 U.S. 79 [90 L.Ed.2d 69](Batson) and People v. Wheeler (1986) 22 Cal.3d 258 (Wheeler).

^[5] Because defendants claims on appeal do not require and/or relate to his burglary conviction, we set forth only those facts relevant to the robbery and omit the facts relating to the burglary.

^[6] Santos described defendant as a black male, bald, wearing black clothing and holding a dollar bill in his hand.

^[7] Respondents motions to augment the record to include and for judicial notice of the table of trial jurors maintained by the Sacramento County Superior Court in this case are denied because it is not necessary to a resolution of defendants claim.

^[8] The court in Wheeler stated the burden of proof thusly, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, as in the case at bar, he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias. (22 Cal.3d at p. 280, fn. omitted; italics added.)

^[9] Defendant contends an appellate court cannot find that a prima facie case is lacking by examining the record to think up some rational, theoretical race-neutral basis for the prosecutors challenge. While neither the trial court nor an appellate court should engage in speculation as to the prosecutors reason for challenging a juror, defendant has the burden of showing there is a reasonable inference the prosecutors reason was race-based group bias. (Johnsonv. California, supra, 545 U.S. at p. 170 [162 L.Ed.2d at p. 139].) Where an examination of the record by an appellate court discloses that no such inference may be made, the defendant has failed to establish a prima facie case.

^[10] We disagree with defendants claim that leaving one young juror, Juror Number 3, on the panel undermines the legitimacy of dismissing Ms. O. because of her youth. While Juror Number 3 was a senior at Sac State who lived with his parents, he also worked as the manager of a gym, a position that involves decision making. Moreover, because the prosecutor is entitled to select a jury that is strategically balanced (see People v. Ledesma, supra, 39 Cal.4th at p. 679) the prosecutor may have decided that one young juror on the panel was sufficient.

^[11] Juror No. 1 - analyst for DMV for 33 years; Juror No. 2 - a certified public accountant; Juror No. 3 - senior in college and manager of a gym; Juror No. 4 - a payroll analyst; Juror No. 5 - retired from state service with prior jury service; Juror No. 6 - retired after working for a supermarket chain for 30 years, presently owned and operated a small business, and had been on five other juries; Juror No. 7 - a veterinarian technician who was going back to school in microbiology; Juror No. 9 - employed by U.S. Department of Agriculture; Juror No. 10 - IT analyst for Placer County and foreman on civil case; Juror No. 11 - manager at BelAir Market for 15 years who made hiring and firing decisions.

^[12] Following the close of the evidence, defendant requested a ruling on his pretrial motion in light of the trial testimony. The court indicated that if the motion had been renewed in a timely fashion, it would have denied it because the court was convinced there was [an] independent basis for [Santoss] identification of defendant, she saw him walk into the store, he was across the counter from her, and she continued to look at him on the security monitor. In addition, the court found the certainty of her in-court identification buttressed its conclusion that there was no likelihood of irreparable misidentification.

^[13] Santos did not notice that the robber had any facial hair although booking photos taken the day after the robbery show he had a mustache and slight goatee. In addition, she described the robber as being six feet tall and weighing 185 pounds while booking records based upon old information state his height as six feet three inches and his weight as 235 pounds.