P. v. Wade

Filed 3/8/07 P. v. Wade 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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A jury convicted defendant Chancellor Lenard Wade of second degree robbery (Pen. Code, 211).^[1] In bifurcated proceedings, defendant admitted a prior felony conviction for purposes of a five-year enhancement ( 667, subd. (a)(1)) and as a strike prior ( 667, subds. (b)-(i), 1170.12).

Sentenced to state prison, defendant appeals, contending the trial court erroneously denied his Wheeler/Batson^[2]motion. We disagree and shall affirm.

FACTUAL BACKGROUND

At 11:30 a.m. on November 10, 2003, defendant robbed the Washington Mutual Bank on Freeport Boulevard. Defendant walked up to the window of teller Monique Bruner and handed her a note which stated, Hand me your fifties and hundreds, maybe twenties, and dont get hurt. Bruner asked defendant whether he meant it. Mumbling, defendant lifted his shirt and reached for his pants pocket. Bruner gave the money to defendant who left the bank. Bruner pressed the alarm and informed her manager that she had been robbed. Bruner watched defendant run around the corner of the bank.

A bank surveillance camera took photographs of the robbery and robber. No usable prints were found on the tellers counter.

When interviewed by a detective, Bruner described the robber as a [m]ale Black, early thirties, five-seven, two hundred ten pounds, heavy build with short black hair, unshaven with a mustache, dark complexion, wearing dark sunglasses with black rims, Ray-Ban type, light green and black long sleeve plaid shirt with blue jeans. A month after the robbery, Bruner viewed a photo lineup and identified defendants photograph as that of the robber.

When defendant was arrested on November 12, 2003, he was wearing pants with red thread in the design of an Asian character on the back right pocket. One of the surveillance photos showed the robber with pants with red coloring on the back of one leg.

DISCUSSION

I. No Wheeler/Batson Error

The prosecutor used peremptory challenges to remove Mr. A., Ms. W., and Ms. J.‑B., three African-American prospective jurors. The trial court found that defendants Wheeler/Batson motion was untimely, and denied it; that defendant had failed to establish a prima facie case; and in any event, that the prosecution legitimately exercised its peremptory challenges.

On appeal, defendant contends that his motion was timely; that he established a prima facie case because the prosecution dismissed three out of four African-American prospective jurors without questioning them; and that the prosecutions reasons for its peremptory challenges to Ms. J.‑B. and Mr. A. were pretexts for excluding them based on their race. Defendant states that the prosecutions peremptory challenge of Ms. W. is arguably supported by the extensive voir dire conducted by the court and makes no argument challenging the prosecutors stated reason for exercising her peremptory challenge to Ms. W. Defendant has thus conceded that the prosecutors challenge to Ms. W. was proper. (People v. Panah (2005) 35 Cal.4th 395, 439.) We conclude that the trial court properly denied defendants Wheeler/Batson motion.

A. Background

Mr. A.

Mr. A. had previously worked for FedEx as a dangerous goods specialist and bulk courier but was unemployed. The judge informed Mr. A., [I]f youre out looking for a job and we will be impeding you, then tell me. Mr. A. responded, No. Mr. A. had long-time friends working for law enforcement, one who worked for the police department in Temple City and another working for the California Youth Authority. Mr. A. stated that his friendships did not cause a bias in favor of law enforcement. Mr. A. once witnessed the theft of a car stereo. Mr. A.s relatives had been victims of crimes. Ten years ago, the 22- or 23-year-old son of a close first cousin was killed during a gang conflict over turf in Chicago. Mr. A. did not know the son well because of the age difference and the geographic location. At family reunions, the killing is remembered but not discussed. Recently, another cousin was choked to death allegedly by her fianc in Little Rock, Arkansas. A second cousin had been charged with possession of controlled substances and illegal possession of weapons. The cousin never complained and Mr. A. believed the charges were fairly brought. Also, a long-time friend was convicted of driving under the influence of alcohol or drugs in the late 1980s. Mr. A. claimed that there was nothing about the cases that would influence him.

The prosecutor did not question Mr. A. and excused him, using her second peremptory challenge.

Ms. J.‑B.

Ms. J.‑B. worked for a shipping company, DHL, in the customer service call center. A family friend worked with the Department of Corrections as a nurse at the hospital at the Vacaville prison. She knew no one who had had a negative experience with law enforcement, had never been a victim of or witness to a crime, had never been charged with a crime and knew no one who had. Her husbands car was vandalized in 2001 and the person was never caught. She felt comfortable judging credibility and had no moral or religious beliefs that would affect her ability to be a juror. She volunteered that she had previously been an assistant manager for many years. She had heard many excuses from employees. Ms. J.‑B. said she could follow the courts instructions. She did not believe there was anything else that the court or parties needed to know about her in view of the other questions and felt she could be fair to both sides.

Neither the prosecutor nor defense counsel had any questions for Ms. J.‑B. The prosecutor later excused Ms. J.‑B. after passing on the jury three times.

Wheeler/Batson hearing

After the jury was sworn but prior to selection of the alternate jurors, defendant filed a Wheeler/Batson motion arguing that the prosecutor exercised her peremptory challenges to Ms. W., Mr. A. and Ms. J.‑B. because they were African-American as is defendant. At the hearing, defendant argued that two of the excused prospective jurors had ties to law enforcement and had likewise been victims. 

Although stating expressly it was not finding a prima facie case, the court asked for the prosecutors reasons. With respect to Mr. A., the prosecutor stated that she routinely did not keep a potential juror who was unemployed and in the case of Mr. A., he expressed no desire to find a job. The prosecutor also cited Mr. A.s cousins son who was the victim of a gang killing and had been in a gang as well.

With respect to Ms. J.‑B., the prosecutor was concerned because the prospective juror was extremely quiet and volunteered little information in answering the courts questions. The prosecutor also stated that she almost always kick[s] jurors with a hyphenated last name regardless of the persons race. She thought that persons with hyphenated names have a difficult time making decisions.

The court noted that Mr. A. had relatives who had been victims of crime and who had been charged with crimes. The court agreed that Ms. J.‑B. was very quiet and very hard to know. The court contrasted Ms. J.‑B.s demeanor to that of the remaining African-American who became a juror, Juror No. 6, who was very open, you could see how she thought on her face and through her manner of speaking and talking. In denying defendants Wheeler/Batson motion, the court found that the motion was untimely, that defendant had failed to make a prima facie showing and that the prosecutors use of peremptory challenges was legitimate.

New trial motion

In his new trial motion, defendant again raised the Wheeler/Batson issue. He argued Mr. A.s unemployment was an improper reason unless the prosecutor had asked him about it. He argued Ms. J.‑B. was no more quiet than other jurors, including the foreperson.

After noting that the court had not found a prima facie showing had been made, the prosecutor noted that Ms. J.‑B. was significantly more quiet than other jurors except a couple the prosecutor had excused including a white male who was so quiet she couldnt get a read on him. The prosecutor noted that Mr. A.s family members had had drug backgrounds and a gang killing which raised a suspicion that he had been around that regardless of whether he had family members that were in law enforcement. The prosecutor also stated that Mr. A. was not only unemployed but disinterested in looking for a job, indicat[ing] a lack of motivation.

In denying the new trial motion, the trial court noted that Mr. A. and Ms. W. had had extensive family experiences with law enforcement, some positive, some negative, and both had acknowledged that some of those family members didnt have positive experiences with the criminal justice system. The court found Ms. J.‑B. to be very reticent and not forthcoming who was hard to draw . . . out and get any information as to how she thought, how her mind[] worked. She gave very clipped and short answers. The court noted that she was very young, possibly early 20s.

B. Analysis

The use of peremptory challenges to excuse prospective jurors based on race violates the federal and state Constitutions. (Batson, supra, 476 U.S. at p. 89 [90 L.Ed.2d at p. 83]; People v. Gray (2005) 37 Cal.4th 168, 184; Wheeler, supra, 22 Cal.3d at pp. 276-277.) A Wheeler/Batson motion is timely if made before jury impanelment is completed because the impanelment of the jury is not deemed complete until the alternates are selected and sworn. (People v. McDermott (2002) 28 Cal.4th 946, 970.)

In a recent decision, the United States Supreme Court 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.] (Johnson[, supra,] 545 U.S. 162, 168 [162 L.Ed.2d 129, 138].) [] [Johnson] explain[ed] that 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. [Citation.] The defendant having shown membership in a cognizable class, and keeping in mind that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate, 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. (People v. Cornwell (2005) 37 Cal.4th 50, 66-67 (Cornwell).)

When a trial court expressly rules that a prima facie case was not made, but allows the prosecutor to state his or her justifications for the record, the issue of whether a prima facie case was made is not moot. [Citations.] Rather, when an appellate court is presented with such a record, and concludes that the trial court properly determined that no prima facie case was made, it need not review the adequacy of counsels justifications for the peremptory challenges. (People v. Box (2000) 23 Cal.4th 1153, 1188.) No implied finding of a prima facie case occurs when the trial court turns to the prosecutor and asks for her reasons. (People v. Davenport (1995) 11 Cal.4th 1171, 1200.)

Even where the trial court makes a finding that a prima facie showing has been made, the prosecutor need only identify facially valid race-neutral reasons . . . . Jurors may be excused based on hunches and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) On appeal, we give great deference to the trial courts conclusions as to whether nondiscriminatory reasons were offered. (People v. Burgener (2003) 29 Cal.4th 833, 864.)

Here, substantial evidence supports the trial courts determination that defendant failed to make a prima facie showing of racial discrimination. Defendants motion was essentially that the prosecutor challenged prospective jurors Mr. A. and Ms. J.‑B. because they were African-American, pointing out that Mr. A. had two friends who worked for law enforcement and the lack of questioning by the prosecutor of Ms. J.‑B. Defendant ignored Mr. A.s several experiences through family members with crime, as either a victim or perpetrator. Defendant also ignored Ms. J.‑B.s demeanor upon questioning by the court. Under the totality of the relevant facts, the record supports the trial courts determination that an inference of discriminatory purpose cannot be established.

Even assuming a prima facie showing had been made, the record supports the trial courts determination that the prosecutor offered race-neutral reasons for exercising her peremptory challenges to excuse Mr. A. and Ms. J.‑B. The prosecutor was concerned that not only was Mr. A. unemployed but that he also had no desire to be excused from jury service to seek employment. Unemployment suggests a person who has little stake in the community and is a race-neutral reason for excusing a juror. (United States v. Gibson (8th Cir. 1997) 105 F.3d 1229, 1232, fn. 2; but see Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1106.) Here, not only was Mr. A.s unemployment a concern, but also his disinterest in obtaining employment which is not a characteristic tied to race. Sufficient evidence supports the trial courts finding that the prosecutor offered a race-neutral reason for exercising her peremptory challenge to excuse Mr. A.

Ms. J.‑B. has a hyphenated last name which concerned the prosecutor, suggesting to her that Ms. J.‑B. had difficulty making decisions. Whether the prosecutors reason is described as a hunch, speculative or even foolish, her reason was race-neutral because persons of all races have hyphenated last names. The record supports the trial courts determination that the prosecutor offered a race-neutral reason for excusing Ms. J.‑B.

Moreover, one African-American juror served on the jury which suggests the prosecutor did not exercise her peremptory challenges in a discriminatory manner. (Cornwell, supra, 37 Cal.4th at pp. 69-70.)

Defendant claims that this court must conduct a comparative juror analysis. He argues that at least 10 of the jurors gave no more information that Ms. J.‑B. The prosecutors stated reason for excusing Ms. J.‑B. focused on the fact that because she gave little information she was difficult to evaluate. Other jurors may have given no more information as reflected on the record but may have given clues about their demeanor which is not reflected on the record and was subject to observation.

The trial court properly denied defendants Wheeler/Batson motion.

II. Corrections to Abstract of Judgment

Defendant was originally charged with three counts of second degree robbery. In the first trial, the jury acquitted defendant on the first count (count one), convicted defendant of the lesser offense of grand theft on the third count (count three), and could not reach a verdict on the second count (count two). Prior to retrial on count two, the court sentenced defendant on count three. Defendant appealed (People v. Wade (C049324, app. pending)). While the case was pending on appeal, defendant was convicted of count two. He admitted the prior felony conviction and prior strike, and was sentenced to an aggregate term of 15 years in state prison, that is, the upper term of five years for count two, doubled for the strike prior, plus a five-year enhancement pursuant to section 667, subdivision (a)(1). The court vacated the six-year upper term on count three and resentenced defendant on count three to a concurrent midterm of four years (two years, doubled for the strike prior).

At item 1., the abstract of judgment incorrectly reflects a base term of five years, with an aggregate term of 10 years at item 8., instead of a base term of 10 years, with an aggregate term of 15 years, respectively. In addition, the five-year enhancement at item 3. is pursuant to section 667, subdivision (a)(1) rather than subdivision (e)(1), and item 4. must be checked to indicate that defendant was sentenced pursuant to sections 667, subdivisions (b)-(i) or 1170.12. We shall order the abstract of judgment corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment, reflecting that the trial court imposed the upper term of five years, doubled for the strike prior, for count two, at item 1., and inserting the correct information at items 3. and 4. Item 8. must reflect the total sentence as 15 years. The abstract already correctly reflects five years for the enhancement and a concurrent four-year term for count three. The trial court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.

BUTZ , J.

We concur:

BLEASE __ , Acting P. J.

ROBIE __ , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part in Johnson v. California (2005) 545 U.S. 162, 165 [162 L.Ed.2d 129, 136] (Johnson); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson).