P. v. Jenkins

Filed 10/27/06 P. v. Jenkins 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

INTRODUCTION

Cory Jenkins appeals the judgment and sentence imposed following his jury-trial convictions for first degree murder, attempted murder, and other offenses. Appellant contends: (1) there was insufficient evidence he committed, or attempted to commit, robbery; (2) the trial court should have given a unanimity instruction with respect to the identity of the victim whose attempted robbery underlay the felony murder charge; (3) the trial court should have instructed the jury sua sponte on assault as a lesser included offense of robbery and attempted robbery; (4) the trial court should have instructed the jury sua sponte on assault with a firearm as a lesser included offense of robbery with a firearm enhancement; (5) the trial court erred in running the 25 year to life sentence for use of a firearm consecutive to the life without possibility of parole sentence imposed for first degree murder;[1] (6) he was denied a fair trial because the jury was selected in a racially discriminatory manner. Finding these contentions without merit, we affirm.

FACTUAL BACKGROUND

A. The Murder of Dwight Garland

On August 16, 2000, appellant was in the company of Michael Ringo, Alvin Garcia and others in a parking lot in a neighborhood of West Oakland. Appellant and his friends were known to Michael Dotson, a street-corner drug dealer. Dotson knew appellant as “Coco.” Dotson overheard Ringo telling the others his cousin had been threatened by a “dude” with a gun in Berkeley and Ringo said he was going to “handle it.” Ringo, appellant and Garcia then left in a brown, four-door compact car.

Later, they parked about half a block from a certain apartment building in Berkeley. Ringo and appellant walked towards the apartment, where they planned to confront the “dude” (murder victim Dwight Garland), while Garcia waited in the car with another unidentified individual who was the driver. Ringo and appellant walked up to a group of four people, which included Lenora T., a drug dealer, Tammy F., Jerry K. and Garland.

Lenora T. was the only one of the three survivors who testified at trial about what happened that evening. Lenora T. testified that she lived in apartment No. 2 in the building. She had one child at the time and was pregnant with another. Lenora T. knew all the folks in the apartment building, which was like a community in itself. Tammy F. lived in apartment number 4. Jerry K. cleaned house and did child-minding for Tammy F. Lenora T. saw Jerry K. about once a week, usually on the weekend. Lenora T. heard Jerry K. had since passed away. Dwight Garland was a good friend, and a cousin of Tammy F. He used to come by every day and talk to everyone.

Around 9:00 p.m., Lenora T. took out the trash in back of her apartment block and noticed a group of people shooting dice. Lenora T. recognized everyone there except a tall, dark-skinned man with gold teeth in his mouth. Later, Lenora T. heard Tammy F.’s car pull into the driveway. Lenora T. went out and began chatting with Tammy F. Lenora T. stood on her front porch and Tammy F. was in the driveway. Tammy F. told Lenora T. she had to go back out again to make some money selling drugs. Jerry K. came out of Tammy F.’s apartment with a drink in his hand. Tammy F. asked Jerry K. to pour her a drink so he brought one out for her. Just then, Dwight Garland rode up on a bike and joined them on the front porch. The four stood around chatting.

Next, two men entered the parking lot and walked up to the porch. The lighter-skinned man with his hair in four braids pulled out a gun. The man said, “Break yourself. I ain’t playing.”[2] Jerry K. immediately ran into Tammy F.’s house and locked the door, leaving Lenora T., Tammy F., and Garland on the porch. Tammy started pulling stuff out of her pockets. Lenora T. put her hands in the air and told the gunman she knew he wasn’t playing, and he could go into her apartment and take her money and drugs. Lenora T. said, “I have kids. Please don’t kill me.” The men did not respond, but just looked at them. Appellant stood to the side of the man with the gun. Tammy F. pulled out money or dope and handed it to appellant. Some stuff went into appellant’s hand and some dropped on the ground. Tammy F. also pleaded for her life because she had kids. Lenora T. did not see appellant actually pocket any of the things Tammy F. presented to him.

The man with the gun told Dwight Garland to come forward, and get on his knees. Appellant walked up to Garland, opened his jacket and looked through the pockets. He found nothing, so then he went through his trouser pockets and pulled out a dollar bill and a piece of paper. After appellant finished searching through Garland’s pockets, the gunman told Garland to get all the way on the ground. Garland obeyed and lay face down on the ground. The gunman then shot Garland in the head. Lenora T. heard two shots then took off running into her apartment. She locked the door, went into her kid’s room, and tried to jump out the window. She could still hear shots, assumed everyone else was dead, and thought the men would be coming after her next. Then she heard someone banging on her door. The gunshots stopped. Lenora T. dropped out of the window and ran to her mother-in-law’s apartment.

Meanwhile, Garcia heard multiple shots and saw Ringo and appellant running back to the car. They got in the car and said, “Oh shit, get out . . . get the fuck out of here, man, drive.” They drove back to the parking lot in West Oakland. Dotson was at the lot when they returned. Dotson heard Ringo remark to appellant, “You didn’t think I was going to handle my business.” Appellant did not react in any way. Dotson also heard Ringo say they walked up to the apartment and made it look like a robbery, and a female had screamed and ran inside. Ringo also said he shot the guy in the head. Dotson did not believe what he’d heard at first, but the next day he read about the murder in the newspaper. Dotson did not report this to the police because the street code is you don’t involve law enforcement in street business, and if you do, you might end up dead.

When first interviewed by the police, Lenora T. told them she saw nothing because she was afraid for her life. At the crime scene, police found scattered beside the victim a number of dollar bills, some small change, and few other small assorted articles, as well as five shell casings Lenora T. moved out of the area after the shooting, but subsequently agreed to participate in a photo line-up when contacted again by police. Lenora T. picked out appellant from the line-up. After that, she viewed two physical line-ups. From the first line-up she identified Michael Ringo as the gunman, and from the second line-up she picked out appellant as the accomplice. At trial, Lenora T. identified appellant as the accomplice of the gunman, and as the man with the gold teeth she had seen shooting dice earlier in the evening.

B. The Attempted Murder of Michael Dotson

On September 25, 2000, Dotson was arrested after he sold drugs to an undercover police officer, at which time he was on parole for a 1997 robbery conviction Knowing he was facing time in the state penitentiary for violation of parole, Dotson traded information about the murder in exchange for his unconditional release. His parole officer was not informed of his arrest. Later, Dotson learned his arrest had been reported on TV. Dotson was fearful because it looks suspicious if you end up right back on the street after having been arrested.

On December 18, 2000, Dotson was walking home on Martin Luther King Way in Oakland. Dotson saw a burgundy color Bonneville drive past which he recognized as belonging to a guy in the neighborhood he knew as Vic. The car made a U turn and parked. Appellant got out the car, crossed the street, pulled out a revolver, and began firing at Dotson. Dotson threw up his hands to protect his face and his index finger was shot off. Appellant continued firing, shooting Dotson in the legs and hip as Dotson tried to flee. Dotson survived the attack. Police interviewed Dotson at the hospital after surgery, and Dotson told them Coco shot him.[3]

PROCEDURAL BACKGROUND

On August 10, 2004, the trial court granted the People’s motion to consolidate the Garland murder case and the Dotson attempted murder case. On October 7, 2004, the trial court granted a defense motion to sever appellant’s trial from Ringo’s trial.

By Amended Information filed November 30, 2004, appellant was charged in count one with the murder of Dwight Garland, in violation of Penal Code section 187, subdivision (a).[4] This count was accompanied by the allegation appellant was armed with a firearm within the meaning of section 12022, subdivision (a)(1), and by the special circumstance allegation the murder was committed in the course of a robbery, within the meaning of section 190.2, subdivision (a)(17)(A). In counts two, three, and four, appellant was charged with attempted second degree robbery of Jerry K., Lenora T., and Tammy F., respectively, in violation of section 211. Each of the robbery counts was accompanied by an allegation appellant was armed with a firearm, within the meaning of section 12022, subdivision (a)(1).

In count 5, appellant was charged with the attempted murder of Michael Dotson, in violation of sections 187, subdivision (a) and 664. Count 5 also carried the following allegations: (i) appellant personally used a firearm, within the meaning of section 1203.06, subdivision (a)(1), causing the offense to become a serious felony under section 1192.7, subdivision (c)(8); (ii) appellant personally discharged a firearm causing great bodily injury within the meaning of sections 12022.7, subdivision (a) and 12022.53, subdivision (d); (iii) appellant personally inflicted great bodily injury on the victim, within the meaning of section 1203.075; (iv) appellant personally inflicted great bodily injury on the victim, within the meaning of section 12022.7, subdivision (a), causing the offense to be a serious felony within the meaning of section 1192.7, subdivision (c)(8).

In count 6, appellant was charged with being a felon in possession of a firearm, in violation of section 12021, subdivision (a)(1). Count 7 charged appellant with mayhem, in violation of section 203, and was accompanied by the same allegations set forth for count 5. The Information also alleged appellant had a prior felony conviction from November 2000 for the unlawful driving or taking of a vehicle

Trial began on November 30, 2004. Closing arguments were delivered on December 9 and December 14. The jury returned its verdict on December 15. The jury found appellant guilty of first degree murder and also found true the special circumstance allegation appellant committed the murder while engaged in the commission or attempted commission of a robbery. The jury found appellant was not armed with a firearm within the meaning of section 12022, subd. (a)(1) during the commission of first degree murder. The jury found appellant guilty on three counts of attempted robbery of Jerry K., Lenora T. and Tammy F. The jury found appellant was not armed within the meaning of section 12022, subdivision (a)(1) in those offenses. Also, the jury found appellant guilty of attempted murder of Michael Dotson, and that the attempted murder was willful, deliberate, and premeditated. In connection with this offense, the jury found appellant intentionally discharged a firearm causing Dotson great bodily injury. Further, the jury found appellant guilty of possession of a firearm by a felon, and of mayhem for shooting off Dotson’s finger.

On February 4, 2005, the trial court sentenced appellant to life without possibility of parole for the murder of Dwight Garland, plus a consecutive life term for attempted murder of Michael Dotson. Appellant filed a timely notice of appeal on February 24, 2005.

DISCUSSION

A. Sufficiency of the Evidence

“The proper test for determining a claim of insufficiency of the evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) Thus, “[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]” (Ibid.) “[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (Ibid.)

Appellant contends there was insufficient evidence he committed, or attempted to commit, a robbery. Appellant asserts the robberies were merely a staged “charade” concocted by Ringo to allow him to confront Garland, and involved no intent to permanently deprive any of the victims of their property. Absent such intent, appellant asserts the three counts of attempted robbery, the robbery special circumstance, and the first degree murder conviction, insofar as it is based on the felony murder rule, should all be set aside. We are not persuaded.

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Section 211.) Robbery requires the specific intent to permanently deprive the victim of his or her property. (People v. Guerra (1985) 40 Cal.3d 377, 385; § 211.) However, to prove attempted robbery, it is necessary to show only (1) specific intent to commit robbery; (2) a direct but ineffectual act towards the commission of the intended robbery; and (3) the act went beyond “mere preparation.” (People v. Dillon (1983) 34 Cal.3d 441, 455-456.) Moreover, specific intent to commit robbery “is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime.” (People v. Lewis (2001) 25 Cal.4th 610, 643.)

Here, Ringo and appellant walked up to the group of people gathered on Lenora T.’s porch. Ringo pointed a gun at them and demanded, “Break yourself,” meaning give up what you have. This command was directed at all those present, and was accompanied by the threat of deadly force. Jerry K. evaded giving up any property by quickly darting through an open apartment door. Tammy F. immediately began turning out her pockets, while Lenora T. put her hands up, told Ringo she knew he was serious and he could take her money and drugs from her apartment. We conclude these facts and circumstances reasonably support an inference of specific intent to rob. They also involve direct acts in commission of the intended robbery which go way beyond mere preparation. (Cf. People v. Vizcarra (1980) 110 Cal.App.3d 858, 862 [“Approaching the liquor store with a rifle and attempting to hide on the pathway immediately adjacent to the liquor store when observed by a customer, is . . . a sufficient direct act toward the accomplishment of the robbery”].) In so concluding, we reject appellant’s suggestion specific intent to rob cannot be established if the attempted robbery is perpetrated in an attempt to conceal a specific intent to murder. In sum, applying the substantial evidence standard of review, we conclude the evidence is sufficient to support appellant’s convictions for attempted robbery of Lenora T., Tammy F. and Jerry K.

With respect to evidence of the Garland robbery, Ringo told Garland to come off the porch and ordered him onto his knees. Appellant then went through Garland’s jacket pockets, and finding nothing, went through Garland’s trouser pockets, pulling out a dollar bill and a piece of paper. Appellant insists this is insufficient evidence of his intent to permanently deprive Garland of property because the testimony shows only his “momentary possession” of the items he took from Garland’s pockets and no testimony showed he retained the items. However, an intent to deprive an owner permanently of his or her property is inferable from a taking. (People v. Tufunga (1999) 21 Cal.4th 935, 943.) It does not matter if the perpetrator subsequently returns the property or abandons it. (People v. Hall (1967) 253 Cal.App.2d 1051, 1054 [“jury could reasonably infer from the fact that appellant searched [victim] and his wallet, that he possessed the requisite intent to deprive [victim] permanently of any valuable property he might thus discover [and] [t]he fact that the wallet was returned, or later discovered abandoned by [victim], does not absolve appellant of any element essential to support his conviction of robbery”].) Accordingly, we conclude the evidence is also sufficient to support a jury finding appellant completed the offense of robbery against murder victim Garland.[5]

B. Sua Sponte Instructions

1. Unanimity Instruction

Appellant contends the trial court erred when it failed to instruct the jury sua sponte that it must be unanimous as to the identity of the victim whose attempted robbery underlay the felony murder charge and robbery special circumstance. We disagree. This issue is controlled by People v. Pride (1992) 3 Cal.4th 195 (Pride). There, the Supreme Court held the trial court did not err in failing to instruct the jury sua sponte it must unanimously agree on the particular sex act underlying any first degree felony-murder verdict as to victim because defendant “was not entitled to a unanimous verdict as to the particular manner in which any such felony murder occurred.” (Id. at p.249-250.) Under Pride, supra, it follows in this case the trial court did not err in failing to instruct the jury it must unanimously agree on the particular attempted robbery underlying the felony murder charge and special circumstance.

In any event, appellant acknowledges even if the trial court erred in failing to give a unanimity instruction, any such error is constitutionally prejudicial only if there was insufficient evidence of attempted robbery as to at least one alleged victim. However, we have already determined the evidence was amply sufficient to support the attempted robbery convictions as to all victims as well as the robbery special circumstance allegation as to Garland. Accordingly, even if the trial court erred on this score, it was not prejudicial. (People v. Stankewitz (1990) 51 Cal.3d 72, 100 [no prejudice resulted from trial court’s failure to give unanimity instruction because “defendant was guilty of robbery with respect to each of the items of personal property taken from the victim”].)

2. Assault as Lesser Included Offense of Robbery and Attempted Robbery

Appellant contends the trial court erred by failing to instruct sua sponte on assault as a lesser-included offense of robbery and attempted robbery. This contention entails two considerations: first, whether assault is a lesser-included offense of robbery (or attempted robbery); and, second, if assault is a lesser-included offense of robbery (or attempted robbery), whether the trial court had a duty to instruct the jury sua sponte on the lesser-included offense.

Two tests apply “in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)

Appellant asserts assault is a lesser-included offense of robbery under the accusatory pleading test because he was charged with a felonious taking by means of “force and fear.”[6] Respondent counters appellant’s contention is foreclosed by People v. Wright (1996) 52 Cal.App.4th 203, 211 (Wright) [because “the element of force [for robbery] can be satisfied by evidence of fear, it is possible to commit a robbery by force without necessarily committing an assault[,]” therefore “under the ‘accusatory pleading’ test, assault is not necessarily included when the pleading alleges a robbery by force”].) Appellant asserts Wright is poorly reasoned and we should not follow it. Appellant also notes the Supreme Court was presented with this issue but chose to leave the question open, even while acknowledging Wright.[7]

We need not decide whether Wright controls. Assuming, arguendo, assault is a lesser included offense of robbery under the accusatory pleading test, the trial court did not err by failing to instruct the jury sua sponte on assault. The trial court must instruct the jury sua sponte “on lesser included offenses when there is substantial evidence raising a question as to whether all the elements of a charged offense are present [citation], and when there is substantial evidence that defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 596.) But “the court is not obliged to instruct on theories that have no such evidentiary support. . . . . . . [T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury [citations].” (People v. Breverman (1998) 19 Cal.4th 142, 162, italics in original.) “Substantial evidence” means evidence which would allow a jury composed of reasonable persons to conclude only the lesser offense was committed. (Ibid. [italics added].)

The facts of this case, however, would not allow a jury to exculpate appellant from guilt of attempted robbery and conclude only that he committed assault. Ringo and appellant ordered the victims to “break,” and in response to the command Tammy F. emptied the contents of her pockets into appellant’s hands, while Lenora T. told them they could go into her apartment and get her money and drugs. Appellant rifled through the jacket pockets of murder victim Garland, and finding nothing, then went through Garland’s trouser pockets, removing a dollar bill and piece of paper. In addition, Dotson heard Ringo boast he and appellant walked up to the apartment and “made it look like a robbery.” All of this is consistent with the intent to steal and does not allow a conclusion appellant committed only assault. Accordingly, we conclude no jury composed of reasonable persons could conclude only assault was committed. (See People v. Breverman, supra, 19 Cal.4th at p. 162.) Thus, the trial court was under no obligation to give the jury a lesser-included instruction on assault.[8]

3. Assault With a Firearm as a Lesser-Included Offense of the Combination of Robbery and the Arming Enhancement (Section 12022, subd. (a)(1))

Appellant contends the trial court erred by failing to instruct the jury sua sponte on assault with a firearm as a lesser-included offense of the combination of robbery and the arming enhancement under section 12022, subdivision (a)(1). Respondent counters this contention is foreclosed by Wolcott, supra. In Walcott, a defendant argued the trial court “should have instructed sua sponte on the uncharged lesser crime of assault with a deadly weapon.” (Wolcott, supra, 34 Cal.3d 92 at p. 98.) The Court noted “[s]uch an instruction would be proper only if that uncharged crime is necessarily included in an accusatory pleading charging robbery with a firearm use enhancement.” (Ibid.) However, the Court decided to “adhere to the majority view that an allegation of firearm use under section 12022.5 should not be considered in determining lesser included offenses.” (Id. at p. 101.)

Appellant declares Walcott is no longer good law in light of the high court’s decisions in Apprendi, Blakely,[9] and their progeny. While these decisions had a great impact on criminal law, none of them directly addresses the issue at hand.[10] Pending further guidance from our Supreme Court, we are bound by Walcott.[11] With the arming enhancement stripped from appellant’s contention, it is clear assault with a firearm is not a lesser included offense of robbery.

But even assuming, arguendo, the arming enhancement should be considered in determining lesser included offenses, and if, under that assumption, assault with a firearm is a lesser included offense of robbery plus the arming enhancement, appellant’s contention still fails. That is because, as we have already decided, the evidence here does not allow a conclusion appellant had no intention to feloniously take the victims’ property and permit a reasonable jury to find appellant committed only assault with a firearm. (See People v. Breverman, supra, 19 Cal.4th at p. 162.) In sum, the trial court was under no obligation to give the jury a lesser-included instruction on assault with a firearm.

C. Batson-Wheeler Claim[12]

Appellant contends he was denied a fair trial because the jury was chosen in a racially discriminatory manner. He asserts the trial court erred in denying his Batson-Wheeler motion after the prosecutor peremptorily challenged two of the three African-American jurors placed in the jury box.

Jury selection began on November 18, 2004. Prospective Juror G. and Prospective Juror T. were two of a batch of prospective jurors called to the panel on November 18. Of the Prospective Juror G. and T. batch of prospective jurors, the prosecutor challenged only Prospective Juror G for cause. The trial court denied the motion. The prosecutor subsequently exercised three peremptory challenges, against Prospective Juror G., juror number 8, then Prospective Juror T. Defense counsel asked to make a motion out of the presence of the jury. At the next recess, defense counsel made a Batson-Wheeler motion because the prosecutor used two of his last three peremptory challenges to excuse two African-American prospective jurors. Defense counsel argued both jurors said they were able to be impartial and “make their best efforts to set aside any issues they might have with the police officer witnesses in one case or testimony from a drug addict [in the other].” The trial court noted both Prospective Juror G. and Prospective Juror T. were African-American, and that one African-American remained on the jury. Based on Prospective Juror G.’s and Prospective Juror T.’s jury questionnaire responses, the trial court found no prima facie case of discrimination in the prosecutor’s removal of the two jurors. The trial court then invited the prosecutor to “offer any further explanations if you should wish to make a record.”

D. Applicable Standard of Review

“ ‘The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution [citation] as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution [citations].’ “ (People v. Ward (2005) 36 Cal.4th 186, 200.)

In Johnson v. California (2005) 545 U.S. 162 (Johnson), the high court reiterated the three-prong Batson test for a showing of group bias in the prosecution’s exercise of preemptory challenges: “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.’” (Johnson v. California (2005) 545 U.S. 162, ___, 125 S.Ct. 2410, 2416.)

Before Johnson, to establish a prima facie case under the first prong of the Batson test under California law, the objector had to “ ‘show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.’ “ (Johnson, supra, 125 S.Ct. at p. 2416.) In Johnson, however, the high court held “California’s ‘more likely than not’ standard is an inappropriate yardstick by which to measure the sufficiency of a prima facie case.” (Ibid.) The court declared the appropriate standard to be that “a defendant satisfies the requirements of Batson‘s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Id. at p. 2417.)

Based on this recent change in the law, appellant assigns error because at the time of jury selection California’s standard for establishing a prima facie case was the one found lacking by the high court in Johnson. On that basis, defendant asserts that de novo review is appropriate in this appeal. Despite the change wrought by Johnson, however, the Supreme Court has decided Batson-Wheeler issues post-Johnson under similar circumstances (where the record is unclear which standard the trial court applied.) (See People v. Cornwell (2005) 37 Cal.4th 50; People v. Gray (2005) 37 Cal.4th 168; People v. Avila (2006) 38 Cal.4th 491.) In those cases, the Supreme Court conducted its own review of the record under the assumption the trial court’s decision is not entitled to deference, applied the Johnson standard for establishing a prima facie case, and resolved “the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.” (People v. Cornwell, supra, 37 Cal.4th at p. 73 [italics in original]; see also People v. Gray, supra, 37 Cal.4th at p. 187; People v. Avila, supra, 38 Cal.4th at p. 554.) Thus, we apply that same standard of review in this case. (See People v. Buchanan (Sept. 21, 2006) WL 2692688 (F048022, Cal.App. 5 Dist.) [adopting same approach].)

Prospective Juror Prospective Juror G.

On voir dire, Prospective Juror G. stated “I have a problem with somebody who is a drug addict giving testimony.” The trial judge asked her if she would always disbelieve a witness who was an addict, and Prospective Juror G. replied she would “take what they say with a grain of salt.” The prosecutor asked Prospective Juror G. about her response to a question about the criminal justice system, to which she wrote, “It doesn’t always work like it should.” Prospective Juror G. said she meant “there’s some people who are arrested who are innocent.” The prosecutor asked Prospective Juror G. if he should feel okay with her as a juror, to which she replied, “[If] [m]ost of your witnesses are drug addicts, then I would be concerned.”

Defense counsel also explored the issue of witness credibility with Prospective Juror G., and the following exchange took place:

Counsel: Do you feel that you’ll be able to follow [the court’s instruction regarding credibility factors] as to drug addicts.

Prospective Juror G.: I don’t really know. I have strong feelings about them, and I don’t know if I could set that aside. . . .

Counsel: And skepticism of drug addicts is based on some personal experience?

Prospective Juror G.: Yes.

Counsel: And is that with a family member?

Prospective Juror G.: Yes.

Counsel: People who are trafficking drugs, do you believe that they are equally incapable of telling the truth?

Prospective Juror G.: No.

Defense counsel stated Garret had vowed to be impartial and to make her best effort to put aside her skepticism regarding the testimony of drug addicts. In denying the Batson-Wheeler motion, the trial court reasoned: “As far as Ms. [Prospective Juror G.] is concerned, Mr. Golde was unsuccessful in his cause challenge, but I understood the basis for his cause challenge; that juror testified basically that she had a strong bias against anyone who might be addicted to drugs. And in his particular case, Mr. Golde’s witnesses are so addicted or might appear so addicted at the time of the offense herein, also that particular juror that I mentioned [said] that there are some who are in prison who are innocent and that juror stated that in a rather emphatic way.” Upon de novo review, we conclude the record does not support an inference that the prosecutor excused Prospective Juror G. on the basis of race. Despite Prospective Juror G.’s explanation her skepticism applied only to drug addicts and not drug dealers, her strong belief drug addicts lacked all credibility, and the fact this belief arose out of a personal family problem, lend legitimacy to the prosecutor’s concerns that Prospective Juror G. might be inclined to give less credit to persons associated in any way with drugs. After all, the key witnesses for the prosecution, Michael Dotson and Lenora T., were both admitted drug dealers. Thus, this is “adequate justification, unrelated to group bias, for the exercise of [a] peremptory challenge[].” (People v. Cummings (1993) 4 Cal.4th 1233, 1282.) Accordingly, the trial court did not err by finding Jenkins failed to make a prima facie case of group bias in the prosecutor’s challenge to Prospective Juror G.

Moreover, even if Jenkins had made out a prima facie case, the record shows the prosecutor offered a race-neutral explanation for his peremptory strike on Prospective Juror G. In his remarks, the prosecutor emphasized the case involved drug usage, dealing, and “certainly the inference of addiction in the witnesses. . . . So considering [Prospective Juror G.’s] emphatic refusal to believe anyone who uses drugs combining with her emphatic protest that innocent people are locked up in prison, I excused her.” The prosecutor was also concerned about Prospective Juror G.’s opinion the criminal justice system “didn’t always work as it should” and as a result innocent people were sometimes arrested. Although few might deny there may be some validity to Prospective Juror G.’s opinion, that does not alter the fact it is a legitimate, nondiscriminatory reason for the prosecutor to excuse her. (See People v. Huggins (2006) 38 Cal.4th 175, 231, fn. 15 [“[I]t does not matter whether it was reasonable for the prosecutor to doubt the desirability of prospective jurors who were born in Berkeley or were associated with automobiles in less than pristine condition. Absent evidence . . . [these reasons] are surrogates for membership in the group and thus arguably impermissible [citation], the reasons are neutral for Batson-Wheeler purposes, and that is all that matters”].) Accordingly, in view of the prosecutor’s race-neutral explanation, we conclude even if Jenkins stated a prima facie case of bias, he has failed to prove “purposeful racial discrimination” in the prosecutor’s peremptory challenge against Prospective Juror G. (Johnson, supra, 125 S.Ct. at p. 2416.)

Appellant contends, however, the prosecutor accepted other white jurors, who, like Prospective Juror G., stated in court during voir dire they would disbelieve drug addicts.[13] Our review of the record does not bear out this claim. Prospective Juror H. was the only other panelist who expressed outright a strong unwillingness to believe a drug addict: “I have a real difficulty believing a drug addicted person. . . . I would automatically reject, knowing that the person was a drug addict at the time, that whatever happened, happened.” The trial court excused Prospective Juror H. for cause sua sponte.

Appellant points to two other white panelists who supposedly expressed a bias against drug addicts and were accepted by the prosecutor. Juror number 6 stated, “I would believe police as a witness over somebody who takes drugs.” Juror number 6 expressed a willingness to evaluate the evidence, but opined, “[T]here’s too much about policemen on the news . . . that I think they have been treated unfairly for such a risky job that they do.” Juror number 6’s comparative bias towards police officers over drug addicts on the question of credibility, coupled with the juror’s apparent sympathy for the plight of police officers, makes her a much better bet for the prosecution than Prospective Juror G. Juror number 7 similarly expressed a comparative bias towards police over drug users on the question of credibility. Moreover, juror 7 stated he came into court with an open mind, and, referring to appellant, “saw a young kid sitting there,” but had been disturbed by appellant’s in-court statements. So too, juror number 7, pro-police in attitude and apparently now less than sympathetic towards appellant’s plight, was a much better bet for the prosecution than Prospective Juror G.

Prospective Juror Prospective Juror T.

Prospective Juror T. stated she had served as a juror in 1982 on an asbestos case. Prospective Juror T. said she could vote not guilty if she had a reasonable doubt of defendant’s guilt. In reply to a question from the prosecutor, Prospective Juror T. stated she could fairly evaluate police testimony. The prosecutor asked her why she wrote on her questionnaire she did not like police officers. Prospective Juror T. replied she had an unpleasant experience in 1982 when she was ticketed for running a stop sign and she believed the police officer could not see the stop sign from where he was stationed. In response to defense counsel, Prospective Juror T. stated she would not take her suspicion of police officers into the jury room with her.

As with prospective juror Prospective Juror G., defense counsel stated Prospective Juror T. had vowed to be impartial and to make her best effort to put aside any issue she might have with police officer witnesses. In denying the Batson-Wheeler motion, the Court noted in Prospective Juror T.’s questionnaire, “although she backed up from this somewhat, she had stated straight out as to law enforcement officers, quote, ‘Do not like them,’ end quote. And of course, Mr. Golde will be calling law enforcement officers. The juror did go on to explain that she was primarily thinking about one law enforcement officer and denied when the Court questioned her as to whether it would go to all law enforcement officers, but I think the prosecutor could justifiably draw the conclusion that that juror might have some bias towards law enforcement officers if seated as a juror.” Again, on de novo review, we conclude the record does not support an inference of racial bias by the prosecutor. Prospective Juror T.’s unequivocal expression of dislike for police officers in her jury questionnaire is a sufficient, non-racial reason for the prosecutor to excuse her. (See People v. Avila, supra, 38 Cal.4th at p. at 544 [peremptory challenge valid where based on juror’s “view that the police lie]; People v. Wheeler, supra, 22 Cal.3d at p. 275 [noting peremptory challenges may be based on answers on voir dire suggesting juror’s potential bias].) Accordingly, the trial court did not err in ruling Jenkins had not made out a prima facie case of bias.

Moreover, even if Jenkins had made out a prima facie case, the record shows the prosecutor offered a race-neutral explanation for his peremptory strike on Prospective Juror T. The prosecutor stated he was concerned with Prospective Juror T.’s statement she did not like law enforcement officers. Although the prosecutor noted “she backed off in court,” he said, “I do not believe her explanation.” The prosecutor added, “[C]onsidering all of the other people behind, we have the order, we have the questionnaires that I have[,] I will not have the person that has that attitude against police officers who so emphatically says that, and we had the people coming up and so it’s not the race at all. And as you indicated, Number 11 is African-American and she doesn’t share those views. So it’s on that basis that I excused Ms. Prospective Juror T.” In addition, the prosecutor said his dissatisfaction with Prospective Juror T.’s attitude towards law enforcement prompted him to exercise a peremptory challenge in the hope of finding a more desirable candidate deeper in the jury pool. This too is a permissible, nonracial consideration. (See People v. Johnson (1989) 47 Cal.3d 1194, 1220 [recognizing the “dynamics” of jury selection mean the characteristics a prosecutor finds acceptable may vary as the composition of the jury is altered during the selection process by prior peremptory challenges and that the factors upon which the prosecutor assesses prospective jurors may be given different weight depending on how many peremptory challenges remain to be used].) Again, in view of the prosecutor’s race-neutral explanation, we conclude even if Jenkins stated a prima facie case of bias, he has failed to prove “purposeful racial discrimination” in the prosecutor’s peremptory challenge against Prospective Juror T. (Johnson, supra, 125 S.Ct. at p. 2416.)

DISPOSITION

The judgment is affirmed.

_________________________

Parrilli, Acting P. J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] Appellant concedes the Supreme Court’s opinion in People v. Shabazz (2006) 38 Cal.4th 55 disposes of this contention. We agree. (See id. at p. 70 [“trial court properly imposed a sentence enhancement of 25 years to life in prison under section 12022.53(d), in addition to defendant's sentence of life in prison without the possibility of parole, for the murder of Lori Gonzalez”].)

[2] In street jargon, “break yourself” means this is a robbery and give me what you have.

[3] Appellant did not testify at trial.

[4] All further statutory references are to the Penal Code.

[5] Because we conclude the evidence supports a jury finding of robbery special circumstance, we need not reach appellant’s contention there was insufficient evidence of the prosecution’s alternate theory of premeditated first degree murder.

[6] Robbery is statutorily defined as a felonious taking “accomplished by means of force or fear.” (§ 211 [italics added].) Thus, under the elements test, robbery does not include assault as a lesser offense. (See People v. Wolcott (1983) 34 Cal.3d 92, 100 (Walcott) [a defendant can commit robbery without attempting to inflict violent injury, and without the present ability to do so].)

[7] See People v. Sakarias (2000) 22 Cal.4th 596, 622 fn. 4.

[8] Accordingly, we need not reach appellant’s alternate assertion that if trial counsel was required to, but did not, request a lesser-included instruction on assault to preserve the issue for appeal, then such omission constituted ineffective assistance of counsel.

[9] Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296.

[10] The Supreme Court’s major pronouncement to date in this area is People v. Black (2005) 35 Cal.4th 1238, 1244 [decisions of High Court in Blakely and Booker [543 U.S. 220] did not affect California’s determinate sentencing law because “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial”].)

[11] In People v. Sloan (June 8, 2005) 113 P.3d 533, 29 Cal.Rptr. 739, the Supreme Court ordered briefing on this related question: “For purposes of the ban on conviction of necessarily included offenses [citation], should enhancement allegations be considered in determining when a lesser offense is necessarily included in a charged offense as pled in the information or indictment?”

[12] People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79.

[13] Appellant’s contention here is not based on comparing jurors’ responses in written jury questionnaires. Even so, it still looks like comparative juror analysis, which is deemed unreliable on appeal under California law. (People v. Cornwell, supra, 37 Cal.4th at p.71 [comparative juror analysis “is appropriate at the trial court level when the issue properly is brought to that court’s attention, [but] such an examination for the first time on appeal is unreliable”].) The Supreme Court, however, has acknowledged recent decisions “in which the high court did not comment upon whether comparative analysis should be undertaken for the first time on appeal, and another . . . in which the high court has employed comparative juror analysis in circumstances in which it was undisputed that a prima facie case had been made.” (Ibid. [citing Johnson v. California (2005) 545 U.S. 162 and Miller-El v. Dretke (2005) 545 U.S. 231].) As the Supreme Court did in Cornwell, supra, we will address appellant’s contention without deciding whether comparative juror analysis is permissible for the first time on appeal. (Ibid.)