P. v. Womack

Filed 9/27/06 P. v. Womack CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Rodney Jerome Womack appeals his robbery conviction. He argues his conviction should be reversed because the prosecutor exercised a peremptory challenge on the basis of race, and the trial court should have allowed him to show that certain witnesses were unable to identify him in a photographic lineup. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Bank Robbery

On February 9, 2004, at approximately 11:20 a.m., a man approached bank teller Denise Owens at the Bank of America in Antioch and told her: “This is a robbery, give me only your 50s and 100s. I have a gun. Don’t hesitate. Or I will shoot.”^[1] Owens believed the man had a gun in his pocket.^[2]

She gave the man approximately $5,000 to $6,000, and he left the bank. Owens gave the alarm, and the police were called. Owens described the robber as approximately six feet tall, in his late 30’s or 40’s, and Black. He was wearing a baseball hat and seemed “pretty big,” although she could not estimate his exact build because he was wearing a zippered jacket.^[3] Owens could not remember any unusual markings on his face or cheeks.

As the robber left the bank, he told security guard Anthony Dayrit that he went to the wrong bank. Unaware the bank was robbed, the guard told him, “Have a nice day.” When the bank manager told the security guard about the robbery, the guard ran after the “tall black guy who was wearing a 49er’s cap,” but was unable to find him. The guard described the robber as approximately six feet, two inches tall, 200 to 205 pounds, and wearing a 49er’s cap, a black jacket, black pants, and black shoes.

Michael Carter, Sr. was arriving for work at the nearby Citibank when he saw a man running away from the Bank of America toward a parked car. Carter described the man as a “darker complexion Afro-American male,” about five feet ten inches to six feet tall, about 210 to 220 pounds, and wearing a dark coat and hat. He got into a small sedan driven by a younger man, who drove off in such a hurry that he ran over the concrete blocks in the parking lot.

B. The Investigation and Photo Lineups

Police obtained two photographs from the bank’s surveillance tape that showed the robber with a deformed left ear and scarring on his left cheek.^[4] The photos were included with a briefing bulletin regarding the robbery. A few days later, an officer was investigating a shooting when she noticed defendant at the scene, and thought he resembled the suspect in the briefing bulletin. She got defendant’s name and address, and forwarded it to Detective Dee, who was investigating the robbery.

Officers searched the home where defendant lived with his mother, and seized a photo of defendant that resembled the robber shown on the bank surveillance tape. They did not tell his mother that defendant was suspected of bank robbery. A few days later, his mother called police and said she wanted defendant to come down to the station to clear things up so the police would not come to her home again. Detective Mike Schneider testified that defendant’s mother told him that defendant called her and told her he robbed a bank and the police were looking for him. Defendant’s mother testified that she told the detective defendant was going to turn himself in, but denied that defendant admitted robbing a bank. Defendant surrendered on February 23.

On the day after defendant’s arrest, Detective Dee showed Dayrit, Owens, and Amber Beckett, a teller who was working next to Owens at the time of the robbery, a photo lineup that included a January 2004 Alameda County booking photo of defendant. Owens and Beckett were unable to make an identification, but Dayrit positively identified defendant.^[5]

On March 11, 2004, Dee created a new photo lineup (“the second lineup”) to show to Carter, using an October 2002 Antioch Police Department booking photo of defendant that Dee believed more closely resembled defendant’s appearance at the time of his arrest. Carter was unable to make an identification. On March 17, 2004, the prosecutor met with the witnesses before the preliminary hearing and showed the second lineup to Owens, Beckett, and Dayrit. All three witnesses identified defendant. The prosecutor and Beckett testified that the witnesses viewed the lineup separately, but Owens and Dayrit testified the three witnesses were sitting together when the prosecutor showed it to them.

C. Trial Evidence of Defendant’s Identification and Evidentiary Rulings

Defendant was charged with second degree robbery.^[6] Pursuant to in limine rulings, the bank tellers and security guard were not permitted to identify defendant during trial. But the photos made from the surveillance tape were shown to the jury, and defendant was required to stand in front of them while the jurors compared him to the person depicted in the photos. Defendant’s mother also testified he had a deformed or “cauliflower” ear from high school wrestling, and acne scarring on his cheeks.^[7] Detective Dee testified defendant walked into court with the same kind of “duck walk” shown in the bank’s surveillance photos, but also acknowledged that a person’s gait cannot be determined from a still photo.

Defendant told the court he intended to “start yelling” “as soon as [he] step[ped] in the courtroom” to tell the jury that he was not identified in the earlier photo lineups, but defense counsel was concerned about whether evidence of the witnesses’ initial failure to identify defendant would “open up the door to subsequent lineups.” The prosecutor did not object to the admission of the evidence, as long as Beckett was permitted to testify that she recalled identifying defendant on February 24. The court stated that admission of evidence regarding the first photo lineup would “open[] up the issue,” and would result in prejudice, undue consumption of court time, and confusion for the jury.^[8] The court further found there was “a big, big difference” between defendant’s appearance in the photo shown in the first lineup and on February 23, 2004, when he surrendered to police. The court concluded that the evidence of nonidentification was not “very probative,” and ruled it was not admissible under Evidence Code section 352.

Laetitia Mullin testified that defendant was renting a room from her boyfriend at the time of the robbery. She recognized defendant in a newspaper article about the robbery as the person in the surveillance photograph. Roy Neighan also saw the newspaper article and recognized defendant.^[9] Neighan was in custody for petty theft when he saw defendant at the Martinez detention facility. Defendant talked about the robbery and told Neighan the security guard said, “have a nice day.” Defendant also told Neighan he used the money to buy services from prostitutes, and left the bank in a “little car” around the corner. Neighan contacted police while he was in custody and offered to provide information on several crimes, including the robbery.^[10]

The defense called several witnesses. Melvin Hackett testified that he was a “good friend” of defendant, and worked with him as a scalper at concerts and sporting events, where defendant made a substantial amount of money.^[11] Javier Oregel testified he knew defendant since junior high school, and that defendant came to his house unannounced between 11:00 a.m. and noon on the day of the robbery. Defendant stayed until after dark, when Oregel drove him to a nearby motel.^[12] But Oregel also admitted the person shown in the bank surveillance photos looked like defendant.^[13]

Charles McClinton testified he was with defendant at Oregel’s house on a Monday a few months earlier, but could not recall the date. McClinton arrived at Oregel’s about 12:30 or 1:00 p.m., and both men were already there.^[14] During the evening, Oregel left with defendant and returned without him.

D. Jury Selection and the Prosecution’s Peremptory Challenges

After the jury was selected, the court made clear that an issue arose “after [the prosecutor] had exercised his third peremptory challenge” to remove Ms. S., a young African-American woman. The People’s other peremptory challenges were to an elderly Caucasian woman and a Caucasian man.

“At the time that the third peremptory was exercised by [the prosecutor], there was a second African[-American] woman in the panel . . . . Ms. S[.] was replaced by a second African[-American] woman. . . . So at the time Ms. S[.] was excused, her seat was taken by Juror No. 35, who [was] African-American and [was] on the jury.”

When the prosecution exercised this third peremptory challenge, the court recognized defense counsel’s request to approach the bench as an indication that he wished to make a Batson/Wheeler motion. The court summarily denied the right to approach, because it was the court’s “opinion that there had been no prima facie showing that the exercise of the peremptory challenge to Ms. S[.] was impermissible or that there was a pattern of exercising peremptory challenge[s] on the basis of race or some other cogniza[ble] group.”

There were no further peremptory challenges. Two African-American women were on the panel. There was one African-American male still remaining in the venire that was never called forward. When asked by the court if he wished to place anything further on the record regarding this issue, defense counsel responded: “No. You made an adequate record.”^[15]

The jury convicted defendant of robbery. The court found the alleged prior convictions true and sentenced defendant to 35 years to life in prison.^[16] Defendant timely appealed.

DISCUSSION

A. Discriminatory Use of Peremptory Challenges

Defendant claims he made a prima facie showing that the prosecutor exercised his third peremptory challenge to remove a prospective juror on the basis of race, in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).^[17] Substantial evidence supports the trial court’s conclusion that no such showing was made. (See, e.g., People v. Alvarez (1996) 14 Cal.4th 155, 196-197.)

Defendant contends the record below warrants a reasonable inference that discrimination occurred under the rule of Johnson v. California, decided after voir dire in this case. We disagree. In Johnson the Supreme Court held that the California rule requiring a defendant to show at the outset that it was “ ‘more likely than not’ “ that a prospective juror was challenged for an improper reason imposed too onerous a requirement, and did not comport with the test set out in Batson. (Johnson v. California, supra, 545 U.S. at p. __ [125 S.Ct. at p. 2416].) Instead, the court held that a defendant makes a prima facie showing under Batson “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Id. at p. __ [125 S.Ct. at p. 2417].) Defendant claims such an inference should have been drawn in this case. But even under the standard announced in Johnson, the record does not support an inference of discrimination.^[18] (See id. at pp. __-__ [125 S.Ct. at pp. 2416-2417] [to make out a prima facie case, defendant must show “ ‘that the totality of the relevant facts gives rise to an inference of discriminatory purpose’ “]; People v. Gray, supra, 37 Cal.4th at p. 187 [regardless of standard employed by trial court, record did not support inference that prosecutor excused juror on the basis of race, under legal standard announced in Johnson].)

Here, the prosecutor directed a single peremptory challenge to an African-American prospective juror. She was replaced by another African-American who was seated as a juror. The only other two peremptory challenges by the prosecutor were directed toward Caucasian jurors. The group affiliation of a prospective juror, standing alone, is not sufficient to establish a prima facie case that the juror was challenged due to impermissible bias proscribed by Batson and Wheeler. (People v. Guerra, supra, 37 Cal.4th at pp. 1101-1102 [ethnic or racial minority status of prospective juror was not sufficient to establish prima facie case]; People v. Cornwell, supra, 37 Cal.4th at pp. 69-70, 73 [prosecutor’s challenge to one of two African-American prospective jurors was insufficient to support inference of bias, especially in view of fact that remaining African-American prospective juror served on jury]; People v. Box, supra, 23 Cal.4th at pp. 1188-1189 [fact that two challenged jurors were of same race as defendant was insufficient to establish a prima facie case]; People v. Alvarez, supra, 14 Cal.4th 155 at p. 198 [mere showing that prospective juror was African-American is insufficient to establish a prima facie case of purposeful discrimination].)

Substantial evidence supports the trial court’s ruling. Defendant failed to produce evidence sufficient to warrant an inference of purposeful discrimination. (See People v. Griffin (2004) 33 Cal.4th 536, 555-557.) Defendant thus failed to overcome the presumption that the prosecutor exercised his peremptory challenges in a constitutional manner. (People v. Avila, supra, 38 Cal.4th at p. 541; People v. Alvarez, supra, 14 Cal. 4th at p. 193; see also People v. Turner, supra, 8 Cal.4th at p. 165.)

B. Exclusion of Evidence Regarding Photographic Lineup

Defendant contends he was denied due process and a fair trial when the court denied his motion to introduce evidence that certain witnesses could not identify him during the first photographic lineup. We conclude that, in the circumstances, the trial court did not abuse its discretion when it excluded any reference to the first photographic lineup because the probative value of the evidence was outweighed by its potential for prejudice, and its admission would result in undue consumption of time and confusion of the issues. (Evid. Code, § 352.)

Defendant argues that “the failure of a witness to identify a defendant in a photographic lineup is a factor that weakens an identification.” But here no eyewitness was permitted to make an in-court identification of defendant.^[19] (Cf. People v. McDonald (1984) 37 Cal.3d 351, 375-376; People v. Martinez (1987) 191 Cal.App.3d 1372, 1377, 1383-1384.) That bank tellers Owens and Beckett did not identify defendant in the first photo lineup had no bearing on other relevant evidence that proved defendant’s identity, including the bank surveillance photos, Mullins’s testimony identifying defendant as the person shown in those photos, Detective Schneider’s testimony that defendant’s mother told him defendant admitted the robbery, and Neighan’s testimony that defendant told him about committing the robbery. Moreover, admission of evidence that Owens and Beckett were unable to identify defendant in the first lineup would arguably have opened the door to evidence that Dayrit did make such an identification, as well as evidence regarding the second lineup, where all three witnesses positively identified defendant. Under these circumstances, the trial court did not abuse its discretion when it ruled that the probative value of the nonidentification of defendant in the first photo lineup was outweighed by the undue consumption of time, confusion of the jury, and prejudice to defendant that would have resulted from the admission of other evidence concerning both the first and the second photo lineups. (See People v. Padilla (1995) 11 Cal.4th 891, 924 [record must show court weighed prejudice against probative value in ruling on the challenged evidence]; People v. Holt (1972) 28 Cal.App.3d 343, 352-353 [“the record need only reflect that the judge did in fact weigh the conflicting factors so that the reviewing court can determine whether that discretion was properly exercised”].)

Defendant also claims his trial counsel was ineffective in failing to press for a ruling on the admissibility of the fact that Carter, who worked at the neighboring Citibank, did not identify defendant when he was separately shown the second lineup.^[20] Even assuming that the evidence would not have opened the door to identification of the defendant by other witnesses in the other photo lineups, defendant has not shown he was prejudiced by its exclusion. Carter did not identify defendant at trial. In light of all the evidence presented, there is no reasonable probability that the verdict would have been more favorable to defendant had the jury heard that Carter also did not identify defendant during the second photo lineup. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant’s ineffective assistance claim therefore fails. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. Padilla, supra, 11 Cal.4th at pp. 935-936.)

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P.J.

_________________________

Pollak, J.

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^[1] The robber also told Owens: “I will blow your fucking head off.”

^[2] Owens initially testified the robber had his right hand in his pocket, but agreed the bank surveillance tape showed his left hand in his pocket. Defendant’s mother testified that defendant is left-handed.

^[3] During in limine proceedings, defense counsel described defendant as “a black male, age 41, [whose] height is six to six-one and his weight is 210.”

^[4] According to the FBI agent who created the still photographs from the surveillance tape, the photos were of unusually good quality.

^[5] Beckett testified she was shown two photo lineups on February 24, and tentatively identified defendant in at least one of them. Dee recalled creating another lineup on February 24, using a different photo of defendant, but testified he never showed that lineup to any of the witnesses.

^[6] The information also alleged three prior strikes, two prior serious felonies, and three prior prison terms. Their trial was bifurcated.

^[7] His mother further testified defendant had pierced ears, but had not recently worn an earring.

^[8] The court also believed that the suggestiveness of the first lineup itself presented “a very, very, very close call,” because of the lighting in defendant’s photo.

^[9] Neighan knew defendant through Mullin’s boyfriend.

^[10] Neighan requested early release, but the police made no promises. Neighan was later released approximately three weeks early.

^[11] Hackett also testified defendant never wore an earring in his left ear, and it appeared the robber shown in People’s Exhibit 3-B might be wearing an earring. Defendant’s bank statement showed a $300 deposit on February 4, 2004, and a $270 withdrawal on February 10, 2004.

^[12] The motel records indicated defendant registered at the motel that night.

^[13] Oregel did not remember defendant wearing an earring in his left ear.

^[14] Oregel testified McClinton arrived in the late afternoon.

^[15] The court told the prosecutor he was not required to respond, because no prima facie showing had been made, but invited him to state the basis of his challenge to Ms. S. on the record. The prosecutor responded: “I would prefer to make a record in the abundance of caution given the way this Court rules. Ms. S[.] was in her early 20s, cashier at Safeway for three and a half years. She still doesn’t work full time. She works on a part-time basis. That is her only job. She has had a series of temp jobs before that. She’s single, has no children. She lives at home with her father. In my view, she is a very inexperienced person in terms of life experiences. There was another youthful juror, Juror No. 13, but in comparing the two, Juror No. 13 had a lot more experience in dealing with other people. He spent time abroad. He was in college at this point. He [wa]s a missionary in Chil[e] for two years. So those are my reasons for making that decision.”

^[16] The court exercised its discretion under Penal Code section 1385 to strike the prison priors. The court also imposed restitution fines of $7,000, and ordered victim restitution of $5,652 to the Bank of America.

^[17] The United States Supreme Court recently reaffirmed that Batson states the appropriate procedure for making such a claim. “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, ___ [125 S.Ct. 2410, 2416], fn. omitted.)

^[18] Because defendant failed to make a prima facie showing, we need not review the adequacy of the prosecution’s justifications for the peremptory challenge. (See People v. Cornwell (2005) 37 Cal.4th 50, 67; People v. Young (2005) 34 Cal.4th 1149, 1172-1173; People v. Box (2000) 23 Cal.4th 1153, 1188; People v. Davenport (1995) 11 Cal.4th 1171, 1201; People v. Turner (1994) 8 Cal.4th 137, 167.) Defendant also argues that comparative juror analysis supports his position in light of the prosecutor’s explanation of why he excused Ms. S. But the case on which he relies, Miller-El v. Dretke (2005) 545 U.S. 231, ___ [125 S.Ct. 2317, 2325], applied comparative juror analysis “ ‘at Batson‘s third step’ “, i.e., to determine whether the prosecutor’s explanation was credible, once defendant had made a prima facie case. (See People v. Gray (2005) 37 Cal.4th 168, 189 [Miller-El “did not consider whether an appellate court must conduct a comparative juror analysis in the first instance, when the objector has failed to make a prima facie showing of discrimination, or whether an appellate court must conduct a comparative juror analysis for the first time on appeal, when the objector failed to do so at trial”]; cf. Boyd v. Newland (9th Cir. 2006) 455 F.3d 897, 907 [comparative juror analysis required “even when the trial court has concluded that the defendant failed to make a prima facie case”].) Even assuming such an analysis is required here, our conclusion would be no different. (See People v. Lewis (20060 39 Cal.4th 970, 1020 “comparison of the prospective jurors in question reveals that they were not ‘similarly situated’ “]; Gray, supra, at p. 189; see also People v. Avila (2006) 38 Cal.4th 491, 546 [defendant’s proffered comparative juror analysis “fails to demonstrate purposeful discrimination”]; Cornwell, supra, at p. 71 [same]; People v. Guerra (2006) 37 Cal.4th 1067, 1103-1104, 1106 [same].)

^[19] Nor did any eyewitness identify someone else shown in the photo lineup as the perpetrator.

^[20] When defendant personally asked about “the other lineup” during the in limine proceedings on his motion to admit evidence of nonidentification, the court indicated it was “only contemplating the first lineup.” When defendant later asked “about the second lineup,” the court responded: “It is not coming in.” It appears that during these interchanges, defendant may have been referring to the lineup shown to Carter, while the court may have been referring to the second lineup shown to Owens, Beckett, and Dayrit.