P. v. McCune

Filed 6/28/06 P. v. McCune CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Modified and affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Robert McCune, also known as Robert Bouze, appeals from a judgment entered upon his conviction by jury of two counts of attempted murder (Pen. Code, §§ 664/187).[1] The jury also found to be true the allegations that the attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)) and that appellant had personally used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d) as to count 1 and subdivisions (b) and (c) as to count 2. The trial court sentenced appellant to life with the possibility of parole plus 25 years on count 1, and a consecutive life sentence with the possibility of parole plus 10 years on count 2. Appellant contends that he was deprived of equal protection by the trial court's erroneous denial of his Wheeler^[2]/Batson^[3] motion. The People request that we impose a mandatory parole revocation restitution fine of $200 pursuant to section 1202.45, because the trial court erroneously failed to do so.

We modify the judgment to include a parole revocation fine of $200 and otherwise affirm.

FACTUAL BACKGROUND

On December 20, 2003, at approximately 2:00 p.m., Curtis Rusher (Rusher) and his cousin, Anthony Sparks (Sparks), were on 93rd Street, between Bearing Cross and Vermont, watching a mechanic fix a jeep belonging to Rusher's estranged wife, Kami Wallace (Wallace). Rusher was having Wallace's vehicle repaired to help her.

Rusher and Sparks saw two men on the other side of the street approaching them. The men looked menacing, wearing big jackets on a sunny day, with their hands in their pockets. As the men crossed the street, they began walking faster. Rusher started across the street towards Wallace's apartment, realizing as he got close to the men that one of them was appellant.[4] Appellant ran after Rusher, and his companion went after Sparks. Appellant caught Rusher, and when Rusher turned, shot him in the mouth. Appellant's companion shot Sparks in the chin.

Rusher fell down, coughing blood. Sparks helped him into the car and drove to the hospital. Because he was speeding, a police vehicle stopped him. The police called paramedics who took Rusher to the hospital, where he underwent surgery. A bullet remained lodged in his throat at the time of trial.

DISCUSSION

Wheeler/Batson Motion

Appellant and his victims in this matter are African-Americans. During voir dire, appellant made a Wheeler/Batson motion claiming that African-Americans were being excused by the prosecutor because of their race. At the time of the motion, the prosecutor had used peremptory challenges to excuse 16 prospective jurors, five of whom were African-Americans, including Juror Nos. 5051, 6569, 7433, 2611 and 0247. Of the five African-Americans excused, defense counsel conceded that there were nonracial justifications for excusing Juror Nos. 6569, 2611 and 0247. Two African-Americans were still on the panel and 12 were still on the venire, but appellant argued that there was no valid, race-neutral justifications for excusing Juror Nos. 5051 and 7433. The primary impetus for the motion was the prosecutor's challenge to Juror No. 7433, who was not asked any questions during voir dire examination beyond the few generic questions posed by the judge to all jurors.

The trial court asked the prosecutor for her reasons for the challenge to the African-American jurors. Upon hearing the explanations, it denied the motion, finding the prosecutor's explanations to be legitimate.

Appellant contends that the trial court prejudicially erred in denying his Wheeler/Batson motion. He argues that there were no genuine, race-neutral reasons to justify excusing two of the African-American jurors. This contention is without merit.

â€