PEOPLE v. JONES











Filed 1/31/11






IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S056364
v. )
)
ALBERT JONES, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR 53009
__________________________________ )

STORY CONTINUE FROM PART II….

Defendant argues that this court has repeatedly upheld the admission of videotapes when the prosecution offered them over defense objection (e.g., People v. Mayfield, supra, 14 Cal.4th 668; People v. Rodrigues, supra, 8 Cal.4th 1060), and complains that videotapes seem to be excluded only when defendants offer them. He suggests a double standard exists in favor of the prosecution. But nothing in Mayfield or Rodrigues supports admission of the videotape here. Rather, videotapes are admissible within the court’s discretion when they assist the jury, and they are excludable within the court’s discretion when they do not assist the jury. Here, the trial court reasonably exercised its discretion to exclude the tapes. In other cases, such as Mayfield and Rodrigues, the court reasonably exercised its discretion to admit tapes.
In response to defendant’s complaint that all of the rulings regarding videotapes seem to favor the prosecution, we note that generally the prosecution may not obtain appellate review of adverse evidentiary rulings; only defendants may do so in criminal cases.^[1] Accordingly, by the nature of things, most rulings reviewed on appeal in criminal cases — on this as well as other points — favor the prosecution. Rulings favorable to criminal defendants generally do not receive appellate review or even, for the most part, mention in an appellate opinion. Thus, the fact that the trial court rulings discussed on appeal generally favor the prosecution merely reflects the realities of appellate review in criminal cases, not the supposed pro-prosecution proclivities of this or any other court.
In this case, the court made many rulings favorable to defendant that are not raised on appeal. For example, over prosecution objection, it exercised its discretion to admit much evidence of specific instances of bad conduct to impeach the prosecution witnesses under our then-recent decision of People v. Wheeler (1992) 4 Cal.4th 284. We are reviewing only rulings adverse to defendant, but that does not mean the court continually ruled against him.

4. Denial of Motion to Have the Jury View the Crime Scene

Defendant moved to have the jury view the crime scene. (See § 1119.) He argued that such a viewing would help the jury judge the distances involved and otherwise aid in determining Arroyo’s credibility. He also asked that, if the court denied the motion, he be allowed at least to have one Officer Whitford testify. (Later, defendant did call Officer Whitford as a witness. She presented a diagram of the area and testified regarding various distances.) The prosecutor opposed the motion. He argued that the existing evidence was sufficient, and that “there’s so much of a time difference now that we don’t know how the bushes are, we don’t know how the trees are. There’s substantial changes several years later.”
When defense counsel stated that defendant would not want to be present at the requested viewing, the court agreed that security would not be an issue. But the court denied the motion for other reasons: “[W]e have a number of photographs that were taken of the general scene . . . taken on the day of the incident. In fact, even showing the police officers still there and the police tape, I think the caution tape, still in place, combining with the . . . aerial photographs to give us some perspective of distance. Putting that together also with the various descriptions that we’ve had, I don’t feel that a . . . jury view is really necessary to get a perspective of what persons were able to . . . see and . . . what the conditions were like. I think we have sufficient information before us that a jury view is just not necessary.”
Defendant contends the court erred. “The standard of review for a trial court’s decision to grant or deny a request for a jury view is abuse of discretion. [Citation.] When the purpose of the view is to test the veracity of a witness’s testimony about observations the witness made, the trial court may properly consider whether the conditions for the jury view will be substantially the same as those under which the witness made the observations, whether there are other means of testing the veracity of the witness’s testimony, and practical difficulties in conducting a jury view.” (People v. Price (1991) 1 Cal.4th 324, 422.)
Here, the court did not abuse its discretion. Over two years had elapsed between the time of the crime and the trial, and the court could reasonably believe that photographs taken the day of the crime, and the extensive other evidence the jury received — much offered by defendant — concerning the area, the relevant distances, and the lighting conditions, obviated any need for a jury view. We find no error.

C. Penalty Phase Issues

1. Admission of Evidence of Uncharged Robbery

Defendant contends the court erred in admitting evidence of the 1992 Delano robbery.

a. Factual Background

At the penalty phase, the prosecution presented evidence in aggravation of defendant’s other criminal activity involving force or violence, including the 1992 robbery in Delano. (§ 190.3, factor (b).) Before it did so, defendant moved for the court to hold an evidentiary hearing outside the jury’s presence to determine whether there was sufficient evidence to support a jury finding that he participated in that robbery. In support of the motion, he cited People v. Phillips (1985) 41 Cal.3d 29, 72, footnote 25. In response, the prosecutor argued that an evidentiary hearing is not required.
At the hearing on defendant’s motion, defense counsel stated that defendant had pleaded guilty to a misdemeanor count of receiving stolen property in the incident, and that robbery charges had been dismissed.^[2] Then the prosecutor made an offer of proof. He stated that one of the three eyewitnesses to the robbery had selected defendant’s photograph out of a lineup, although with only about 50 percent certainty. There were no other eyewitness identifications. However, defendant and a second person were apprehended from a nearby residence within a “very, very short period of time” of the robbery. Property “with names on it that was stolen shortly beforehand” was found inside that residence. The prosecutor argued that, although primarily circumstantial, the evidence was sufficient to present to the jury. After reviewing People v. Phillips, supra, 41 Cal.3d 29, the court ruled that the offer of proof was a sufficient inquiry into the sufficiency of the evidence, and that an evidentiary hearing was not required. It denied the motion for an evidentiary hearing and admitted the evidence.
Accordingly, the jury heard the following evidence. On July 21, 1992, around 8:30 a.m., two men committed an armed robbery at the Fairway Market in Delano. One man, stipulated not to be defendant, approached Kyong Hui Yang at the cash register and robbed her of her purse, which contained her identification. The second man approached Jose Plancarte at the meat department, pointed a pistol at his head, hit him in the head with a weapon, took property from his pockets, and locked him in the bathroom. Maria Gamez also witnessed the robbery and observed the man with the pistol. Gamez managed to run from the store and call the police. The robbers then left the store, fleeing in the direction of Garces Highway.
Gamez selected defendant’s photograph from a lineup as one of the participants, but said she was only about 50 percent certain. She did not select anyone from a personal lineup, but she identified defendant at trial. Neither Yang nor Plancarte made any identification.
The police received the call of a robbery at 8:31 a.m., and several police officers responded promptly. One citizen told the police that the robbers had entered his apartment at 302 Garces Highway, about one-tenth of a mile from the Fairway Market. Other citizens pointed the police towards that apartment complex. Two police officers, Drake Massey and Jeffrey Nacua, approached the apartment in question, arriving within five minutes of the robbery, according to Massey, and within “[m]oments” according to Nacua. The two could tell that someone was inside the apartment, and they waited for a SWAT team to arrive and deal with the situation. Massey and Nacua positioned themselves so they could see if anyone entered or left the apartment. Until the SWAT arrived in the early afternoon, no one left or entered the apartment. Eventually, a SWAT team arrived and arrested two men, one of them defendant, who were inside the apartment. After his arrest, defendant said his name was John Paul Jones.
Property taken in the robbery, including Yang’s purse and a wallet containing her identification, was found in the apartment after defendant’s arrest.

b. Analysis

Defendant contends the court erred in two respects. First, he argues that, before admitting the robbery evidence, the court should have held an evidentiary hearing outside the presence of the jury regarding the sufficiency of the evidence. “In Phillips, a plurality of this court suggested ‘that in many cases it may be advisable for the trial court to conduct a preliminary inquiry before the penalty phase to determine whether there is substantial evidence to prove each element of the other criminal activity.’ (People v. Phillips, supra, 41 Cal.3d at p. 72, fn. 25 (plur. opn. of Reynoso, J.).)” (People v. Young (2005) 34 Cal.4th 1149, 1209.) But we have since clarified that this preliminary inquiry is discretionary and, if held, need not be an evidentiary hearing. If the court does elect, in its discretion, to conduct such an inquiry it may be based on an offer of proof. (People v. Young, supra, at p. 1209; People v. Hart (1999) 20 Cal.4th 546, 649; People v. Clair (1992) 2 Cal.4th 629, 677-678.) Here, we see no abuse of discretion. The trial court did conduct a preliminary inquiry into the sufficiency of the evidence. It was not additionally required to “conduct[] an evidentiary hearing that might have required witnesses to testify once at the hearing and again at the penalty phase.” (People v. Hart, supra, at p. 649.)
Defendant also argues that there was insufficient evidence to allow the jurors to conclude beyond a reasonable doubt that he was one of the robbers. This question, too, is a matter within the discretion of the trial court. (People v. Clair, supra, 2 Cal.4th at p. 676.) We see no abuse of discretion.
As defendant argues, the eyewitness identification was, by itself, not very convincing. But far more than eyewitness identification evidence existed; very strong circumstantial evidence of defendant’s identity as one of the robbers also existed. Within a very few minutes of the robbery, defendant and another man were trapped inside a nearby apartment with the stolen property. A rational juror could find unreasonable the possibility that during the few minutes between the robbery and the police securing the apartment, the real second robber had disappeared, and that an innocent defendant had somehow found himself in that apartment with the stolen property. This “evidence was sufficient to allow a rational trier of fact to determine beyond a reasonable doubt that defendant” was one of the Delano robbers. (People v. Hart, supra, 20 Cal.4th at p. 650.)

2. Challenges to California’s Death Penalty Law

Defendant raises a number of contentions we have repeatedly rejected. We see no reason to reconsider our previous holdings.
Specifically, we reject defendant’s arguments that (1) a broad application of section 190.3, factor (a) (allowing the jury to consider the circumstances of the crime in aggravation or mitigation) is unconstitutional (People v. Brown (2004) 33 Cal.4th 382, 401); (2) the death sentence is unconstitutional because, except for unadjudicated criminal conduct and prior convictions, it is not premised on findings made beyond a reasonable doubt (id. at pp. 401-402); (3) Evidence Code section 520 requires an instruction on the prosecution’s burden of proof or, alternatively, the court was required to instruct that there is no burden of proof (People v. Dunkle (2005) 36 Cal.4th 861, 939); (4) the jury must achieve unanimity as to the existence of the aggravating circumstances, including unadjudicated criminal activity (People v. Brown, supra, at p. 402); (5) use of the phrase “so substantial” in the standard jury instructions is unconstitutional (People v. Page (2008) 44 Cal.4th 1, 55-56); (6) the instructions unconstitutionally failed to inform the jury that it must determine whether death is the appropriate punishment (id. at p. 56); (7) the instructions unconstitutionally failed to inform the jury that it was required to return a verdict of life if it found that mitigation outweighed aggravation (id. at p. 57); (8) the instructions unconstitutionally failed to inform the jury regarding the standard of proof and lack of a unanimity requirement as to mitigating circumstances (People v. Hawthorne (2009) 46 Cal.4th 67, 104; People v. Gutierrez (2009) 45 Cal.4th 789, 831); (9) the court had to instruct the jury on the “presumption of life” (People v. Gutierrez, supra, at p. 833); (10) the jury must make written findings (People v. Brown, supra, at p. 402); (11) the use of the restrictive adjectives “extreme” and “substantial” in the list of mitigating circumstances is unconstitutional (ibid.); (12) the court was required to delete inapplicable sentencing factors from its instructions (People v. Cook (2006) 39 Cal.4th 566, 618); (13) the court was required to instruct the jury that certain statutory factors are relevant solely in mitigation (People v. Hillhouse (2002) 27 Cal.4th 469, 509); (14) intercase proportionality review is required (People v. Brown, supra, at p. 402);^[3] (15) California’s sentencing scheme violates equal protection guarantees (People v. Manriquez (2005) 37 Cal.4th 547, 590); and (16) California’s death penalty law violates international law (People v. Brown, supra, at pp. 403-404).

D. Cumulative Effect of Error

Defendant argues that the cumulative effect of the alleged errors was prejudicial. We have found no error.

III. Conclusion

We affirm the judgment.
CHIN, J.

WE CONCUR:

KENNARD, Acting C. J.
BAXTER, J.
CORRIGAN, J.
GEORGE, J.^*

DISSENTING OPINION BY WERDEGAR, J.


I do not agree with the majority’s analysis and rejection of defendant’s claim under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. Defendant, an African-American man, killed two elderly White victims. When the prosecutor peremptorily challenged three of the five African-American prospective jurors, the trial court found a prima facie case of group bias and invited the prosecutor to explain his challenges. In response, the prosecutor offered for each challenge important, even dramatic reasons — reasons the record does not support. That the record does not support the prosecutor’s reasons suggests they were pretextual, and pretextual reasons “naturally give[] rise to an inference of discriminatory intent.” (Snyder v. Louisana (2008) 552 U.S. 472, 485 (Snyder); see also People v. Silva (2001) 25 Cal.4th 345, 385-386 (Silva).) Perhaps the prosecutor’s reasons were truly pretextual; perhaps they reflect honest mistakes, as the majority generously assumes. We will never know, because the trial court neglected its duty to make “ ‘a sincere and reasoned effort to evaluate’ ” the proffered justifications. (People v. Lenix (2008) 44 Cal.4th 602, 614 (Lenix); see also Silva, at p. 385.) Accor­dingly, the trial court’s decisions to accept the prosecutor’s reasons and to deny defendant’s motion are not entitled to deference on appeal. (Lenix, at p. 614; Silva, at pp. 385-386.) Because the trial court’s omission leaves the inferences of pretext and discriminatory intent unrebutted, I would reverse.
Prospective Juror N.C. was a 54-year-old African-American man with a high school diploma, a former assistant platoon sergeant with 19 years of Army service who was working at the time of trial as a hospital telephone operator. The prosecutor’s “primary concern” about N.C. was his answer to the written question, “Have you, a close friend, or relative ever been accused of a crime, even if the case did not come to court‌” N.C. circled “yes,” wrote his son’s name, indicated he had not attended the trial, and left blank the question, “What crime(s)‌” When the prosecutor cited this answer to justify striking N.C., he dramatically misstated the answer, telling the judge, “I think it was attempt murder or murder.” (Italics added.) The prosecutor in a capital case might well harbor serious reservations about a prospective juror whose son had been accused of murder, but N.C. had said no such thing. (See Silva, supra, 24 Cal.4th 345, 385 [justifications not supported by the record suggest pretext].) Neither did the prosecutor seek to clarify the matter by asking questions of N.C. during voir dire. (See Miller-El v. Dretke (2005) 545 U.S. 231, 246 [state’s failure to engage in meaningful voir dire on subject of professed concern suggests pretext].)
Prospective Juror G.G. was a 47-year-old African-American man with a high school diploma who had served with the Army in Vietnam and worked at the time of trial for the Riverside Transit Service supervising 150 bus drivers. In attempting to justify his decision to strike G.G., the prosecutor explained to the court that he had, among other reservations, “concerns about this bus driver, as well as other bus drivers” (italics added), because local lighting conditions on the morning the crime occurred might be an issue at trial and bus drivers might have firsthand knowledge of the subject. A prosecutor could properly be concerned about a prospective juror having such knowledge, but the record does not support the prosecutor’s assertion that he was concerned about bus drivers other than G.G.. There were two other bus drivers on the panel: Both drove school buses in the neighborhood of the crime, both served on the trial jury without objection by the prosecutor, and both were White. (Cf. Miller-El v. Dretke, supra, 545 U.S. 231, 248 [that prosecutor’s “reason also applied to . . . other panel members, most of them white, none of them struck, is evidence of pretext”].)
Prospective Juror D.L. was a 40-year-old African-American woman who had attended UCLA and was at the time completing an MBA program at another university. She worked as an insurance rate analyst, supervising a small unit of other employees doing similar work. Among the reasons the prosecutor gave for striking D.L. was that she was potentially controversial. She had, the prosecutor explained, “mentioned her church was A.M.E. [i.e., African Methodist Episcopal], and I assume that it’s the A.M.E. church up in L.A. I constantly see A.M.E. on television. They are constantly controversial, and I don’t particularly want anybody that’s controversial on my jury panel.” A prosecutor might reasonably hesitate to accept a “controversial” juror, and a person who would regularly travel over 60 miles from Riverside to Los Angeles to attend a “controversial” church might attract notice in a rural county. Of these assertions, however, the record supports only that D.L. had on her questionnaire claimed affiliation with the largely African-American A.M.E. church. The record does not show that D.L. attended a particular church in Los Angeles rather than one nearer her home in Riverside, that any particular A.M.E. church or the domination as a whole is any way controversial, or that D.L. herself shared any supposed controversial views. Again, the prosecutor asked no questions of D.L. on this matter of supposed concern, bolstering the inference of pretext. (Cf. Miller-El v. Dretke, supra, 545 U.S. 231, 246.)
A trial court, having found that a prosecutor’s peremptory challenges es­tablish a prima facie case of group bias, has an obligation to make a sincere and reasoned effort to evaluate the prosecutor’s justifications. (Lenix, supra, 44 Cal.4th 602, 614; Silva, supra, 25 Cal.4th 345, 385.) This, the court below failed to do. The court asked a single question during the prosecutor’s presentation, confirming that his “primary concern” about Prospective Juror N.C. was that his son had been “charged with a serious offense.” The court, however, failed to note that: (a) the record did not support the prosecutor’s assertion that N.C.’s son had been accused of murder, attempted murder or any other “serious offense;” (b) the record contradicted the prosecutor’s professed concern about all bus drivers (as opposed to G.G., only) having knowledge of local lighting conditions; and (c) the record did not support any of the prosecutor’s assertions about D.L.’s supposed involvement with a “controversial” church. Having remained largely silent throughout the prosecutor’s presentation, the court denied the Batson/
Wheeler motion with an uninformative global finding to the effect that the prosecutor had excluded the three jurors for “racially neutral purposes.”
Under these circumstances, we cannot appropriately defer to the trial court’s ruling. Our unanimous decision in Silva, supra, 25 Cal.4th 345, explains why: “Although we generally ‘accord great deference to the trial court’s ruling that a particular reason is genuine,’ we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.] When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.” (Id., at pp. 385-386.)
Here, the prosecutor gave for each of the three jurors reasons that were unsupported by the record. Given the trial court’s failure to conduct a meaningful evaluation of the prosecutor’s reasons, we have no basis for assuming that other, possibly neutral reasons actually motivated the three peremptory challenges in question. Furthermore, “when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” (Miller-El v. Dretke, supra, 545 U.S. 231, 252.) This is especially true of the majority’s continual references to the challenged prospective jurors’ demeanor — a subject to which the prosecutor referred but on which the trial court made no findings entitled to deference. (Cf. Snyder, supra, 522 U.S. 472, 479; Lenix, supra, 44 Cal.4th 602, 619.)
Once again, to be clear, we do not and cannot finally know whether the prosecutor’s unsupported assertions about Prospective Jurors N.C., G.G. and D.L. represented pretexts for group bias or honest mistakes. The trial court’s failure to make “ ‘a sincere and reasoned effort to evaluate’ ” the prosecutor’s justifications (Lenix, supra, 44 Cal.4th 602, 614; see Silva, supra, 25 Cal.4th 345, 385) leaves this court without a ruling entitled to deference (Silva, at pp. 386-387), and leaves the resulting inferences of pretext and discriminatory intent (ibid.; see Snyder, supra, 552 U.S. 472, 485) undisturbed. I therefore dissent.
WERDEGAR, J.
I CONCUR:
MORENO, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jones
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S056364
Date Filed: January 31, 2011
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Gordon R. Burkhart

__________________________________________________________________________________

Attorneys:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Jessica McGuire and Jolie Lipsig, Deputy State Public Defenders, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Annie Frasier and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.












Counsel who argued in Supreme Court (not intended for publication with opinion):

Jolie Lipsig
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814-3518
(916) 322-2676

Scott C. Taylor
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2605


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