P. v. Williams
Filed 11/7/13 P. v. Williams CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSICA MARIE WILLIAMS,
Defendant and Appellant.
B238508
(Los Angeles
County
Super. Ct.
No. BA348603)
APPEAL from
a judgment of the Superior Court
of
County. Sam Ohta,
Judge. Affirmed.
Thomas T. Ono, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * *
Appellant
Jessica Marie Williams appeals from the judgment after her conviction by
jury of the attempted willful, deliberate and premeditated murder of Joshua
Earles (Pen. Code, §§ 187, subd. (a), 664; count 1),
degree murder of Fenton Brown (§ 187, subd. (a); count 2), and the
felon (§ 12021, subd. (a)(1); count 3). The
jury found true the allegations that appellant personally and intentionally
discharged a firearm which proximately caused great bodily injury and death
(§12022.53, subds. (b)-(d)), and the offenses were committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1) (C)). The trial court sentenced appellant to state
prison for a total term of 75 years to life plus life.
Appellant
contends that (1) the trial court erred by denying her motion to dismiss based
on the prosecution’s failure to notify the defense of a witness’s deportation
and by excluding the deported witness’s
statement to the police; (2) her Wheeler/Batson
trial court abused its discretion by denying her Pitchess
name="_ftnref3" title="">[3] motion. Finding no error, we affirm the judgment.
FACTS
Sanders met appellant in November 2007.
The two developed an intimate relationship and appellant often spent the
night at Sanders’s house. Appellant was
a member of the Eight Tray Hoovers gang and her moniker was “Groove.†She wore jeans and tank tops. She wore her hair in braids and “looked like
a male.†Sanders was associated with the
Westside Trouble gang which was friendly with the Eight Tray Hoovers. Appellant purchased a black Chevy Caprice but
the car was registered to Sanders because appellant did not have a driver’s
license.
Early in
the morning of May 29, 2008, appellant
called Connie Aldridge and asked her to buy some bullets for her. Later that night, Sanders, Aldridge, a man
known as “Max,†and appellant drove in the Chevy Caprice to the Big 5 Sporting
Goods store in Inglewood. Sanders did not
know Max but saw him with appellant in the past. Aldridge purchased a box of Remington
.40-caliber Smith and Wesson bullets and gave them to appellant.
and usually parked it in front of Sanders’s house. Sometime after the purchase of the bullets and
prior to her arrest, appellant asked Sanders to start parking the car at the
back of the house.
On May 30,
2008, Joshua Earles was walking from his house towards the corner of 104th
Street and South Manhattan Place when an older model black car pulled up behind
him. The car was an “old school Caprice
or . . . Impala†and looked “like an old cop car.†The passenger had braided hair and wore a New
York Yankees baseball cap backwards. The
passenger asked Earles where he was from.
As Earles started to back up, the passenger, using a black handgun with
brown grips, shot at him. Earles ran
away but was struck by four bullets and suffered injuries to his chest, right
shoulder, and left leg. Officer Gui
Juneau of the Los Angeles Police Department (LAPD) responded to the scene of
the Earles shooting and recovered 10 shell casings.
On June 2,
2008, Jonathan McKeone was inside his house when he heard a gunshot coming from
the intersection of 67th Street and Vermont Avenue. He looked out the window and saw a person
backing up toward a black car and shooting towards Vermont Avenue. The shooter was dressed in a white T-shirt
with dark pants, and wore a baseball cap backwards. The car was parked under a streetlight and
McKeone saw the shooter and another person get into the car and drive westbound
on 67th Street past his house. At trial,
McKeone testified that he could not tell if the shooter was male or female
because he only saw the shooter from the side.
On June 2,
2008, Carlos Grenald was inside his house near 67th Street and Vermont Avenue
when he heard approximately eight gunshots.
He went to his front door and heard what sounded like a male voice yell
“Hoover.†He heard two car doors close and
then saw a dark colored sedan speed westbound on 67th Street past his
house. Grenald walked to the corner of
the block and found 19-year-old Fenton Brown crawling on the ground. He could see gunshot wounds to Brown’s
arms. He yelled at other people who were
beginning to gather at the scene to call 9-1-1.
Brown told Grenald that he was coming from the liquor store two blocks
away and had been in an altercation with some Bloods gang members at the liquor
store.
LAPD
Officer Jessie West and his partner were the first officers to respond to the
scene of the Brown shooting. Brown had
multiple gunshot wounds and his clothing was saturated with blood. He was having difficulty breathing and asked
Officer West if he was going to die.
Brown told Officer West that he was standing on the corner of 67th Street
and Vermont when two African-American females wearing T-shirts approached him
and asked “Where are you from?†Brown
responded he was “not from anywhere†and did not “bang.†One of the women pulled out a semi-automatic
firearm and began shooting at Brown.
While he was running away he looked over his shoulder and saw both women
fleeing in the direction of a black car.
Brown suffered six gunshot wounds and died approximately 30 minutes
later at the hospital. LAPD Detective
Linda Heitzman processed the crime scene and recovered 10 shell casings.
On June 3,
2008, at approximately 6:55 p.m., LAPD Officer Nicholas Hartman and his partner
Officer Prodigalidad, accompanied by Deputy Probation Officer Chon, were patrolling
in a black and white police car on 81st Street near Hoover Avenue. Officer Hartman saw appellant walking down the
street in the opposite direction.
Appellant turned into a courtyard and started walking faster after she
looked over her shoulder towards the police car. When the police officers stopped the car to
speak with appellant, she sprinted away from them. The officers gave chase and Officer Hartman
observed appellant take a blue steel semiautomatic gun with brown grips from
her waistband and throw it over a chain-link fence. Appellant was arrested and the gun which had
one .40-caliber round in the chamber and 10 in the magazine was retrieved.
At the
time of her arrest, appellant was wearing a New York Yankees baseball hat
commonly worn by the Neighborhood Crips, a rival gang of the Eight Tray
Hoovers. Appellant asked Officer Hartman
if he liked her “nap†hat.
name="_ftnref6" title="">[6] Appellant also wore
a belt buckle with the letter “H†which stood for “Hoovers.†Appellant had three bindles of rock cocaine,
a cell phone, and car keys in her pocket.
The car keys were for a 1991 Chevy Caprice that was parked close to the
area where appellant was detained.
LAPD
firearm examiner Rafael Garcia determined that the shell casings recovered from
the Earles shooting and the shell casings recovered from the Brown shooting were
fired from the gun that appellant discarded at the time of her arrest.
The
prosecution’s gang expert, Officer Hartman, testified he was assigned to the
77th Division Gang Enforcement Detail and was responsible for the Eight Tray
Hoovers gang. He explained that a gang
member acquires status within the gang by committing crimes, especially violent
crimes. It was dangerous for a gang
member to be seen by rival gang members in the rival gang’s territory. In gang culture, a “mission†involved a plan
to commit a crime and then the execution of the plan. Driving into a rival gang’s territory and
shooting someone would be a typical gang “mission.†That type of crime showed the community that
the shooter and his or her gang were dangerous and powerful.
The Eight
Tray Hoovers gang, also known as the 83rd Hoovers gang, had approximately 200
members and was one of eight active cliques within the larger Hoovers gang. Their primary activities included murders,
robberies, narcotic sales, weapons violations, carjackings, burglaries,
identity thefts, and shootings. Officer
Hartman opined that appellant was a member of the Eight Tray Hoovers based on a
number of factors: her admitted
membership, her gang tattoos which included “8†on her left tricep and “3rd†on
her right tricep, as well as “Fuck†on her right shoulder, and “Napps†on her
left shoulder, and the circumstances of the shootings and her arrest.
When asked a
hypothetical question based on the facts of this case, Officer Hartman opined
that the shootings were committed for the benefit of and in association with a
Hoovers by demonstrating the gang’s power over rival gangs and by causing fear
and intimidation in the community. The area where Earles was shot was claimed by the Rollin’
100’s gang, an affiliate of the Neighborhood Crips, which was a mortal enemy of
the Eight Tray Hoovers. The Neighborhood
Crips identified with the New York Yankees logo and an Eight Tray Hoovers gang
member would wear a New York Yankees baseball cap so the shooter could blend
into the surroundings in Rollin’ 100’s territory. The east side of the street where Brown was
shot was claimed by the 65 Menlo Gangster Crips while the west side was claimed
by the 67 Neighborhood Crips. Both
Crips gangs were allies of each other and rivals of the Eight Tray Hoovers.
No
evidence was presented on behalf of appellant.
DISCUSSION
I. Appellant’s
Motion to Dismiss and Motion to Admit Deported Witness’s Statement
Appellant
contends that the denial of her motion to
dismiss based on the prosecution’s alleged failure to immediately notify
the defense of a witness’s deportation violated her federal constitutional rights
to compulsory process and due process by depriving her of the favorable
testimony of a material witness.
Appellant also contends the court erred in excluding the deported
witness’s hearsay statement to the police.
Attached to appellant’s motion for dismissal was a
declaration in which defense counsel alleged that on June 11, 2008, Jose
Ricardo De Lao told LAPD Detective Bertha Durazo that he witnessed the June 2,
2008 Brown shooting and that it was committed by two African-American men. Defense counsel was appointed on November 19,
2008, and understood that discovery of witnesses’ addresses was generally not
provided in gang cases until trial. Nevertheless,
defense counsel made written requests for De Lao’s address on January 12, 2009,
March 31, 2009, and again on October 26, 2009.
On December 22, 2009, when the defense investigator met with Detective
Durazo to interview civilian witnesses, she informed him that De Lao had been
deported to Mexico in August 2008. The
defense investigator contacted various United States Immigration and Customs
Enforcement offices to locate De Lao, but his efforts were unsuccessful.
On
April 26, 2011, a hearing on the motion to dismiss was held. Detective Durazo testified that she was aware
that Brown told officers at the scene that two females shot him. When she interviewed De Lao on June 11, 2008,
he told her that two men committed the murder.
De Lao provided his employment and residence information to Detective
Durazo. De Lao was not in custody at
that time, lived and worked in the area, and gave no indication to Detective
Durazo that he intended to move away from the area. The case against appellant was filed in
November 2008. On July 8, 2009, when
Detective Durazo was serving subpoenas for the preliminary hearing, she learned
that De Lao had been taken into custody on a narcotics-related charge and
deported. Detective Durazo was not aware
of De Lao’s immigration status.
After
Detective Durazo testified, defense counsel conceded that he had not shown
“sufficient misconduct on the part of law enforcement based on the record
presented to the court†that warranted dismissal. Defense counsel asked the trial court to permit
him to use De Lao’s statement at trial because it was reliable hearsay and
material to the defense. The trial court
denied the motion to dismiss on the ground that appellant had failed to show
misconduct by the prosecution or police. With respect to the motion to admit De Lao’s
statement, defense counsel cited Chambers
v. Mississippi (1973) 410 U.S. 284 (Chambers). The trial court found Chambers dealt with a “unique†situation and distinguished it from
the “standard†situation presented in this case. De Lao’s statement did not fall within any exception
to the hearsay rule and the trial court denied the motion to admit it.
1. Motion to
Dismiss
Under the
“compulsory process†clauses of the federal and state Constitutions, a
defendant has a constitutional right to compel the testimony of a witness who
has evidence favorable to the defense. (
268–269.) To prevail on a claim of
prosecutorial violation of the right to
compulsory process, the defendant must establish that the prosecution
engaged in conduct that was entirely unnecessary to the proper performance of
its duties, the conduct was a substantial cause of the loss of the witness’s
testimony, and the defendant must show that the testimony could have been
material and favorable to the defense. (
compulsory process rights were violated, we use the standard generally applied
to issues involving constitutional rights; i.e., we defer to the trial court’s
factual findings if supported by substantial evidence, and independently review
whether a constitutional violation has occurred. (See People
v. Cromer (2001) 24 Cal.4th 889, 894, 900–901; People v. Seijas (2005) 36 Cal.4th 291, 304.)
Appellant’s
contention fails because substantial evidence supports the trial court’s
finding that appellant failed to show any prosecutorial misconduct. De Lao’s deportation was handled by a federal
government agency and Detective Durazo first learned of it in July 2009, 11
months after it had occurred. The
discovery laws did not require the prosecution to provide any prosecution
witness’s address until 30 days before trial.
(§§ 1054.1 & 1054.7.)
The prosecution informed the defense of De Lao’s deportation in December
2009, approximately one year and four months prior to trial. Appellant claims the prosecution’s delay in
informing the defense was a substantial cause in denying her a meaningful
opportunity to locate De Lao. The
prosecution played no role in the deportation of De Lao, and appellant has not
shown how learning of the deportation five months earlier would have enabled
her to locate De Lao.
Furthermore,
appellant failed to show that De Lao’s testimony was “material and favorable to
[her] defense, in ways not merely cumulative to the testimony of available
witnesses.†(United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 873.) Much of De Lao’s statement was
consistent with other prosecution testimony.
His description of the driver matched appellant’s age, his description
of the car was similar to appellant’s car, and he noted that the driver who
shot Brown wore a cap. De Lao identified
the assailants as men but this testimony was cumulative to McKeone’s pretrial
statement to police that a man committed the June 2 shooting and to Grenald’s
testimony that the voice of the assailant who shouted “Hoovers†sounded
male. Additionally, evidence at trial
indicated that appellant dressed and looked like a male at the time of the shootings.
Appellant’s
reliance on People v. Mejia (1976) 57
Cal.App.3d 574 (Mejia), is
misplaced. In Mejia, the court upheld dismissal of a felony prosecution when
percipient witnesses arrested with defendant were unavailable to testify because
they had been released to immigration officials and deported. The court stated at page 580: “Generally speaking the
People may select and choose which witnesses they wish to use to prove their
case against a defendant. They are not,
however, under principles of basic fairness, privileged to control the
proceedings by choosing which material witnesses shall, and which shall not, be
available to the accused in presenting his defense.†As previously noted, the prosecution played
no role in De Lao’s deportation and Mejia
is inapposite.
Appellant asserts that regardless of any
lack of bad faith by the prosecution, there was Brady
name="_ftnref7" title="">[7] error. Appellant
cannot establish any element of a Brady claim. She does not assert a typical Brady
violation, “involv[ing] the discovery, after trial, of information which had
been known to the prosecution but unknown to the defense.†(United
States v. Agurs (1976) 427 U.S. 97, 103, disapproved on another ground in
667, 676–683.) Nor does she claim that
true impeachment evidence, that is, evidence tending to cast doubt on the
credibility of a testifying witness,
was withheld. De Lao’s
deportation does not assist appellant’s claim because it did not hurt the
prosecution’s case or help the defense.
(People v. Morrison (2004) 34
Cal.4th 698, 714.) Nor was it material
to appellant’s defense because it was not reasonably probable that earlier
disclosure of the deportation would have caused a different result. Appellant tried unsuccessfully for one year
and four months to procure De Lao’s presence at trial and did not show how
knowing about the deportation five months earlier would have produced a
different result.
to Admit De Lao’s Statement
We review the trial court’s rulings on the admission of
evidence for abuse of discretion. (
724.) Evidence of out-of-court statements
offered to prove the truth of the matter stated is hearsay, but such evidence
is admissible if it qualifies under an exception to
the hearsay rule. (Evid.
Code, § 1200, subd. (a); People v. Lewis
(2008) 43 Cal.4th 415, 497.)
Appellant does
not identify any Evidence Code exception to the hearsay rule that is relevant
to this case but argues that “‘exceptions to the hearsay rule’†may also be
found in “‘decisional law.’†Appellant contends
that De Lao’s statement was reliable and crucial to establish her innocence and
should have been admitted pursuant to Chambers, supra, 410 U.S. 284 to preserve her due process right to present
a defense.
In Chambers,
a defendant in a murder trial called a witness who had previously confessed to
the murder. (Chambers, supra, 410 U.S. at p. 294.) After the witness repudiated his confession
on the stand, the defendant was denied permission to examine the witness as an
adverse witness based on Mississippi’s “‘voucher’ rule†which barred parties
from impeaching their own witnesses. (
the hearsay rule for statements made against penal interests, thus preventing
the defendant from introducing evidence that the witness had made
self-incriminating statements to three other people. (Id.
at pp. 297–299.) The United States
Supreme Court noted that the State of Mississippi had not attempted to defend
or explain the rationale for the voucher rule.
(Ibid.) The court held that “the exclusion of this
critical evidence, coupled with the State’s refusal to permit [the defendant]
to cross-examine [the witness], denied him a trial in accord with traditional
and fundamental standards of due process.â€
(Id. at p. 302.)
In
considered whether the defendant “had either a constitutional or a state law
right to present exculpatory but unreliable hearsay evidence that is not
admissible under any statutory exception to the hearsay rule.†(Id.
at p. 266.) The defendant relied on Chambers
and argued the trial court had “infringed on various constitutional guaranties
when it barred the jury from hearing potentially
supra, at p. 269.)
Ayala rejected the
defendant’s argument and held that “‘[f]ew rights are more fundamental than
that of an accused to present witnesses in his own defense. [Citations.]
[But i]n the exercise of this right, the accused, as is required of the
State, must comply with established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of guilt and
innocence.’ [Citation.] Thus, ‘[a] defendant does not have a
constitutional right to the admission of unreliable hearsay statements.’ [Citations.]
Moreover, both we [citation] and the United States Supreme Court
[citation] have explained that Chambers is closely tied to the facts and
the Mississippi evidence law that it considered. Chambers is not authority for the
result defendant urges here.†(
Appellant argues
that De Lao’s statement bears persuasive assurances of trustworthiness and
therefore its admission is compelled.
But the United States Supreme Court has clarified that Chambers
“does not stand for the proposition that the defendant is denied a fair
opportunity to defend himself whenever a state or federal rule excludes
favorable evidence.†(
U.S. 303, 316.) The Court went on to
explain that, by its ruling, it was not signaling a diminution in the
validity or respect normally accorded to the states regarding their rules of
criminal procedure and evidence, but only that, given the unique facts of
that case, the court had found the defendant there had been deprived of a
fair trial. (Chambers, supra, 410 U.S. at pp. 302–303.)
The circumstances
of this case did not approach those of Chambers
where constitutional rights directly affecting the ascertainment of guilt were implicated. The trial court did not apply the hearsay
rule “mechanistically to defeat the ends of justice†(Chambers, supra, 410 U.S. at
p. 302) and we find no abuse of discretion.
II. Appellant’s
Wheeler/Batson Motion
Appellant, who is
African-American, contends the prosecutor improperly exercised a peremptory
challenge against an African-American prospective juror on the basis of
race. A party violates both the
California and United States Constitutions by using peremptory challenges to
remove prospective jurors solely on the basis of group bias, i.e., bias
presumed from membership in an identifiable racial, religious, ethnic, or
similar group. (Wheeler, supra, 22 Cal.3d at pp. 276–277; People v. Lancaster (2007) 41 Cal.4th 50, 74; Batson, supra, 476 U.S. at pp. 96–98.) A party who believes his opponent is doing so
must timely object and make a prima facie showing of exclusion on the basis of
group bias. (Wheeler, supra, at p. 280.)
A prima facie showing requires that the party make as complete a record
as possible, show that the persons excluded belong to a cognizable group, and
produce evidence sufficient to permit the trial judge to draw an inference that
discrimination has occurred. (
162, 170.)
If a prima facie
case is shown, the burden shifts to the other party to show that the peremptory
challenge was based upon “specific bias,†i.e., one related to the case,
parties, or witnesses. (
281–282.) This showing need not rise to
the level of a challenge for cause. (
challenge for any permissible reason or no reason at all, implausible or
fantastic justifications are likely to be found to be pretexts for purposeful
discrimination. (People v. Huggins (2006) 38 Cal.4th 175, 227 (Huggins); Purkett v. Elem
(1995) 514 U.S. 765, 768.)
The trial court
must then make a sincere and reasoned attempt to evaluate the explanation for
each challenged juror in light of the circumstances of the case, trial
techniques, examination of prospective jurors, and exercise of challenges. (People
v. Fuentes (1991) 54 Cal.3d 707, 718.)
It must determine whether a valid reason existed and actually prompted
the exercise of each questioned peremptory challenge. (Id.
at p. 720.) The proper focus is the
subjective genuineness of the nondiscriminatory reasons stated by the
prosecutor, not on the objective reasonableness of those reasons. (People
v. Reynoso (2003) 31 Cal.4th 903, 924.)
Neither Wheeler nor Batson overturned the traditional rule
that peremptory challenges are available against individual jurors whom counsel
suspects of bias even for trivial reasons.
(People v. Montiel (1993) 5
Cal.4th 877, 910, fn. 9.) “To rebut a
race– or group–bias challenge, counsel need only give a nondiscriminatory reason which, under all the circumstances,
including logical relevance to the case, appears genuine and thus supports the conclusion that race or group
prejudice alone was not the basis for
excusing the juror.†(
“[T]he issue comes down to whether the trial court finds the
prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in
accepted trial strategy.†(
322, 339.) “In assessing credibility,
the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own
experiences as a lawyer and bench officer in the community, and even the common
practices of the advocate and the office who employs him or her.†(People
v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)
Prospective Juror
No. 6 (Juror No. 6) told the court he lived in Ladera Heights, was single, and
had no prior jury experience. He was a
college student majoring in criminal justice and aspired to work in law
enforcement. When he was five or six
years old in the mid 1990’s, his half-brother was convicted of felony
assault. He did not know “too muchâ€
about the conviction and it did not affect how he thought about law
enforcement. When the court asked if the
jurors were familiar with criminal street gangs, Juror No. 6 stated that when
he was in high school he knew gangs were “around†and he knew members of
African-American gangs at his high school but was not friends with them and did
not have any contact with them at the time of trial. He said he could limit himself to the gang
evidence presented at trial and not insert his own knowledge of gangs into his
decision making in the case. Juror No. 6
became aware of the Eight Tray Hoovers when he was in high school but was not
friends with any members of that gang or other gangs that were either
affiliated with or enemies of the Eight Tray Hoovers. He said he had been approached or “banged onâ€
once or twice outside of school but nothing happened, and he had never been
asked to join a gang. He indicated he
understood circumstantial evidence, acknowledged that any witness can possibly
lie, and felt he was “an independent person†and would not change his mind
about his view of the case even if the other 11 jurors disagreed with him.
The prosecutor
exercised his fifth peremptory challenge against Juror No. 6 and defense
counsel made a Wheeler/Batson motion stating that Juror No. 6 was “one
of the only two African-Americans in the room.â€
The trial court explained that defense counsel was using the wrong
standard and asked him to set forth the basis for the motion. The trial court found defense counsel made a
prima facie showing with respect to Juror No. 6 and asked the prosecutor to
explain why he excused him. The
prosecutor replied, “The reason I excused Juror No. 6 is precisely some of the
reasons that the defense attorney I guess thought he would be a good juror. He is by far the youngest person in the
group. I question whether or not he has
enough life experience for a case of this magnitude. He didn’t appear to be very mature in the way
he answered the questions and the way he responded to questions. The fact that he is a student taking criminal
justice classes makes me nervous because I don’t know what he’s being taught
about the law. He also had a half
brother who I think had been convicted of an assaultive crime. And the last, but certainly not least, is the
fact that he went to high school, was aware of a number of gang members, he
even specifically had had contact or had knowledge of Eight Tray Hoovers.†The prosecutor concluded that he would have
excused Juror No. 6 for any one of those reasons, but especially when considered
collectively.
The court denied
the Wheeler motion finding there was no discriminatory purpose and
stated, “The reasons stated by [the prosecutor] are race neutral reasons. And they’re supported by the record as given
by the statements of the juror in court to answers of questions posed.â€
Appellant argues
the trial court did not make a “sincere and reasoned evaluation of the
proffered third step justifications.â€
Because Wheeler
motions call upon trial judges’ personal observations, we view their rulings
with considerable deference, provided that the trial court makes a sincere,
reasoned effort to evaluate the justifications offered. (Lenix,
supra, 44 Cal.4th at pp. 613–614.)
Where deference is due, the trial court’s ruling is reviewed for
substantial evidence. (
defendant must make a prima facie showing that a peremptory challenge has been
exercised on the basis of race[; s]econd, if that showing has been made, the
prosecution must offer a race-neutral basis for striking the juror in
question[; and t]hird, in light of the parties’ submissions, the trial court
must determine whether the defendant has shown purposeful discrimination.â€â€™ [Citations.]â€
(Snyder v. Louisiana (2008)
552 U.S. 472, 476–477 (Snyder).) Snyder also noted, “The trial court
has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry
involves an evaluation of the prosecutor’s credibility, [citation], and ‘the
best evidence [of discriminatory intent] often will be the demeanor of the
attorney who exercises the challenge,’ [citation].†(Id.
at p. 477.)
Here, the
prosecutor provided a race-neutral reason for excusing Juror No. 6. The trial court evaluated the prosecutor’s
explanation and found it credible. The
important point was the trial court’s opinion of the “subjective genuineness†of the nondiscriminatory reasons
stated by the prosecutor, “not . . . the
objective reasonableness of those reasons.†(People
v. Reynoso, supra, 31 Cal.4th at
p. 924.) A prosecutor’s “explanation
need not be sufficient to justify a challenge for cause.†(People
v. Turner (1994) 8 Cal.4th 137, 165, overruled on another point in
555, fn. 5.) Even a hunch is sufficient,
so long as it is not based on impermissible group bias. (Turner,
supra, at p. 165.) What mattered here was not whether the
prosecutor articulated a highly persuasive ground for excusing Juror No. 6, but
that the ground was race-neutral and the trial court assessed the prosecutor’s explanation
and concluded it was subjectively genuine. The trial court had the benefit of its
contemporaneous observations of both voir dire and the prosecutor’s demeanor as
he explained his reason for excusing Juror No. 6.
Citing
analysis; in other words, to compare Juror No. 6 to jurors who were not excused
to determine whether the prosecutor’s expressed reasons were pretextual. Dretke
does not compel a different result.
There, the high court held that if a prosecutor’s stated reason for
striking a member of a cognizable group applies equally to an
“otherwise-similar†juror who is not a member of the cognizable group, then
that is “evidence tending to prove purposeful discrimination to be considered
on Batson’s third step.†(
jurors shared Juror No. 6’s familiarity with gangs, or also had family members
arrested. However, none of the seated
jurors had the same combination of characteristics as Juror No. 6–young and
immature, currently enrolled in criminal justice courses, had a relative who
was convicted of a violent offense and was familiar with African-American
gangs, including appellant’s gang. On
this record, therefore, appellant’s comparative analysis is
unreliable and fails to demonstrate purposeful discrimination. The fact that we might reasonably derive an inference
of discriminatory intent from a comparative analysis does not
mean that a Wheeler/Batson motion was incorrectly denied. (Lenix,
supra, 44 Cal.4th at pp. 627–628.)
Therefore, a comparative analysis does not compel a
conclusion that the trial court erred in accepting the prosecutor’s stated
reasons for excusing the prospective challenged juror.
III. Appellant’s
Pitchess Motion
Appellant contends the trial court abused its discretion by
denying her Pitchess motion. She asserts she presented a sufficient
specific factual scenario to establish a plausible factual foundation for her
allegations of police officer misconduct.
Appellant’s
Pitchess motion referred to the
portion of the police report narrating the circumstances of her arrest. The report indicated that LAPD Officers
Hartman and Prodigalidad and Probation Officer Chon observed appellant “remove
a blue steel handgun with brown wooden grips from her waistband and . . . .
throw the handgun over a wall†that was covered with green foliage. The gun was recovered by Officers Hartman and
Prodigalidad immediately following appellant’s arrest.
A
declaration signed by defense counsel
and attached to appellant’s Pitchess
motion challenged her connection to the handgun: “She denied having a firearm on her
possession to law enforcement. The
defendant believes that these officers have lied about seeing her toss this
gun. She continues to deny possession of
the recovered firearm.†The police
report attached to appellant’s Pitchess
motion included details of appellant’s postarrest statement in which she stated
that while running from the police she tried to discard the “narco†in her
possession, but was unable to get it “out of her right pants coin pocket.â€
The
trial court denied the Pitchess
motion, stating, “The factual scenario offered by counsel can be characterized
as a mere denial.†The court noted that
the Pitchess motion claimed the
police officers lied only about appellant throwing the firearm away. The only factual account of the incident was
incorporated in the police report. The
police officer’s version of events as to how the chase occurred, what was found
on appellant, and appellant’s explanation why she ran from the police was
uncontroverted.
The
sole and exclusive means by which citizen complaints against police officers
may be obtained are the Pitchess procedures
codified in sections 832.7 and 832.8 and Evidence Code sections 1043 and
1045. (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1539.) A Pitchess motion must include, among
other things, an affidavit showing good cause for the discovery sought. (Evid. Code, § 1043, subd. (b)(3);
Cal.4th 1, 12.) “To show good cause as
required by [Evidence Code] section 1043, [the] declaration in support of a Pitchess
motion must propose a defense or defenses to the pending charges†and “articulate
how the discovery sought may lead to relevant evidence or may itself be
admissible direct or impeachment evidence [citations] that would support those
proposed defenses.†(
Cal.4th 1011, 1024 (Warrick).) The declaration “must also describe a factual
scenario supporting the claimed officer misconduct.†(Ibid.) The threshold showing of good cause required
to obtain Pitchess discovery is “relatively low.†(City
of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83, 94.) We review Pitchess orders under the abuse of discretion
standard. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
Contrary
to appellant’s assertion, she did not make a good cause showing by merely
denying the relevant specific fact alleged in the officers’ report. Because the police report described the
actions of Officers Hartman, Prodigalidad, and Probation Officer Chon during
the chase and arrest, it was incumbent on appellant to present a specific
factual scenario different from the scenario presented in the police
report. The officers reported seeing
appellant throwing a blue steel
handgun over a wall. Appellant denied ever
having a gun but did not offer an alternative factual scenario regarding what
her specific actions were (e.g., she made no throwing motion at all, she threw
some other object over the wall, or she threw some narcotics over the wall,
etc.). On appeal, appellant contends
that her postarrest statement that she tried to throw away the narcotics in her
pocket sufficiently provides an alternative plausible factual scenario to
explain the officers’ alleged observation of her throwing the handgun. But, this contention has no merit. Appellant stated she was unsuccessful in
removing the narcotics from her pants pocket, therefore she never made a
throwing motion.
Appellant
did not allege the officers planted the gun and lied about having seen her
throw it. (See People v. Thompson (2006) 141 Cal.App.4th 1312, 1317 (
explanation because it did not present a factual account of the scope of the
alleged police misconduct].) Because
appellant’s Pitchess motion was, as
the trial court concluded, simply a denial of the officers’ report when she
could and should have instead presented a specific, plausible, alternative
factual scenario of officer misconduct, she did not make the good cause showing
required for an in camera review of documents.
(Warrick, supra, 35 Cal.4th at
pp. 1023–1026.) Appellant did not
present a specific factual scenario of police officer misconduct that might or
could have occurred and was both internally consistent with and supportive of
her defense. (Id. at p. 1026.)
Appellant
contends the trial court misapplied “Warrick
and its progeny†and improperly required appellant’s factual scenario to be credible
rather than plausible. The circumstances
in this case are not of the type referred to in Warrick for which a mere denial of the officer’s report may
suffice. (Warrick, supra, 35 Cal.4th at pp. 1024–1025.) As the trial court noted, this case is
similar to Thompson, in which the
defendant was required to do more than merely deny the officer’s report.
In
Thompson, the defendant was standing near a street and sold cocaine base
to an undercover police officer who gave him two marked $5 bills. (
1315.) Fellow “buy†team officers heard
and saw the exchange and then other uniformed officers arrested the defendant
after the transaction was complete and found the marked bills on the defendant.
(Ibid.)
In his Pitchess motion, the
defendant asserted the officers planted evidence, acted dishonestly, and
committed other misconduct. (
supporting declaration of his counsel stated that “‘the officers did not
recover any buy money from the defendant, nor did the defendant offer and sell
drugs to the undercover officer.’ The ‘officers
saw defendant and arrested him because he was in an area where they were doing
arrests.’ When ‘defendant was stopped by
the police and once they realized he had a prior criminal history they
fabricated the alleged events and used narcotics already in their possession
and attributed these drugs to the defendant.’
The charges ‘are a fabrication manufactured by the officers to avoid any
type of liability for their mishandling of the situation and to punish the
defendant for being in the wrong area, at the wrong time and for having a prior
criminal history. . . .â€â€™
(Ibid.) Thompson concluded the defendant’s
showing was insufficient because it was not internally consistent or complete. (Ibid.) The defendant “simply denied the elements of
the offense charged.†(
Because
appellant, like the defendant in Thompson, did not provide an alternate
version of the facts regarding her actions during the crucial event reported by
the police officers (i.e., throwing a handgun over the wall) and did not
otherwise dispute any other fact set forth in those reports, we, like Thompson,
conclude appellant did not present a sufficient specific factual scenario
of officer misconduct that was plausible considering the officer’s report. (Thompson,
supra, 141 Cal.App.4th at p. 1316; Warrick,
supra, 35 Cal.4th at p. 1025.)
In
our view, appellant has not set forth a proposed defense, established a
plausible factual foundation for the alleged officer misconduct, or articulated
a valid theory as to how the requested information might be admissible at
trial. Given the foregoing
circumstances, appellant was not entitled to have the trial court review the
requested records in camera to determine what information, if any, should be
disclosed. (People v. Gaines (2009) 46 Cal.4th 172, 178–179.) The trial court did not abuse its discretion
by denying appellant’s Pitchess motion.
>
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, J.
FERNS
We
concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
unless otherwise indicated.
(1978) 22 Cal.3d 258 (Wheeler);
