People v. Willis CA2/5 ( 2013 )


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  • Filed 10/16/13 P. v. Willis CA2/5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,                                                          B245061
    Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
    No. SA078622)
    v.
    MANUEL WILLIS,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County, Antonio
    Barreto, Jr., Judge. Affirmed and remanded.
    Law Offices of John F. Schuck and John F. Schuck, under appointment by the
    Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Supervising
    Deputy Attorney General, and Esther P. Kim, Deputy Attorney General, for Plaintiff and
    Respondent.
    _____________________________
    A jury convicted defendant and appellant Manuel Willis of three counts of second
    degree robbery (Pen. Code, § 211) 1 but found not true allegations he was armed with and
    personally used a handgun (§§ 12022, subd. (a)(1), 12022.5, subd. (a)).2 In a separate
    proceeding, the trial court found defendant had suffered a prior conviction under the three
    strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious or violent
    conviction (§ 667, subd. (a)), and served prior prison terms (§ 667.5, subds. (a)-(b)).
    Defendant was sentenced to a total term of 15 years in state prison, consisting of the
    upper term in count 1 of five years, doubled pursuant to the three strikes law, plus a five-
    year enhancement under section 667, subdivision (a). Sentencing on the prior prison
    term findings was stayed.
    In his timely appeal, defendant contends: (1) he was denied his state and federal
    constitutional rights to a representative and impartial jury because the trial court
    erroneously denied his motions under Batson v. Kentucky (1986) 
    476 U.S. 79
     (Batson)
    and People v. Wheeler (1978) 
    22 Cal. 3d 258
     (Wheeler) to prevent the prosecution from
    striking five Black jurors; and (2) the trial court erroneously denied his request to strike a
    prior serious and violent felony conviction allegation pursuant to People v. Superior
    Court (Romero) (1996) 
    13 Cal. 4th 497
     (Romero). We affirm the judgment but remand
    with directions to correct errors in the abstract of judgment.
    FACTS
    Defendant and another man robbed a Metro PCS cell phone store in Hawthorne
    the evening of August 27, 2011. Police focused on defendant as a suspect because he left
    his phone behind in the store and his fingerprints were on a contract he had been filling
    out before the robbery. Defendant and his accomplice entered the store, and defendant
    1   All further statutory references are to the Penal Code unless otherwise stated.
    2 The same jury acquitted defendant’s cousin Brandon Willis on all three counts
    of robbery.
    2
    pretended to be interested in purchasing a new phone. Two employees, a male and a
    female, were at the counter, and a third employee was in the renovation area in the back
    of the store.
    While defendant was filling out a contract for a new phone, he pulled his shirt up
    and showed the female employee what appeared to be a gun in his waistband. Defendant
    told the employee to “get [her] hands away from the keyboard [because he was] about to
    rob the place.” She complied. Defendant gathered the three employees and directed one
    of the male employees to take him to the safe at the back of the store. Defendant and the
    employee were unable to open the safe because the employee did not know the
    combination. The employee was afraid because defendant started holding his right hand
    inside his pants as if he had a gun and said, “Don’t make me shoot you.”
    Defendant testified the gun was not real. It was an “airsoft gun” that looked real,
    and that he was “high” on drugs the day of the robbery. He admitted showing the gun to
    the employee so he would comply. Defendant pulled the gun out from his waistband but
    concealed the front of the gun with his finger so that the employee would not see the
    orange tip, which would have shown the gun was a replica. Defendant told his
    accomplice to “smoke the bitch” if the female employee moved. Two customers entered
    the store during the robbery but left abruptly when defendant looked out of the back
    office and said, “You all just got caught up in some shit.”
    Defendant filled a bag with about $10,000 worth of cell phones that were kept in
    the back office. Defendant walked the male employee back to the front of the store and
    directed the employees to open the cash registers, telling the female employee, “Hurry up
    . . . don’t make me want to shoot you.” Defendant and his accomplice left the store with
    the cell phones, blue tooth devices, and approximately $2,000 in cash.
    3
    DISCUSSION
    Batson/Wheeler Motions
    Defendant contends the trial court committed reversible error under
    Batson/Wheeler by finding no prima facie case of discrimination based on the
    prosecutor’s use of peremptory challenges to excuse a total of five Black jurors during
    jury selection. We disagree.
    The standard for reviewing a Batson/Wheeler motion is well established. State
    and federal constitutional authority imposes a three-step inquiry: “First, the trial court
    must determine whether the defendant has made a prima facie showing that the
    prosecutor exercised a peremptory challenge based on race. Second, if the showing is
    made, the burden shifts to the prosecutor to demonstrate that the challenges were
    exercised for a race-neutral reason. Third, the court determines whether the defendant
    has proven purposeful discrimination. The ultimate burden of persuasion regarding racial
    motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins
    (2006) 
    546 U.S. 333
    , 338.) The three-step procedure also applies to state constitutional
    claims. [Citations.]” (People v. Lenix (2008) 
    44 Cal. 4th 602
    , 612-613 (Lenix).)
    The trial court’s determination that the prosecution’s motive for the challenge was
    nondiscriminatory presents a question of fact, which we review using the substantial
    evidence standard. (Hernandez v. New York (1991) 
    500 U.S. 352
    , 364–365; Lenix, supra,
    44 Cal.4th at pp. 613-614.) Assessing the credibility of a prosecutor’s race-neutral
    explanations is uniquely a function of the trial court. The court can measure the
    credibility of a proffered rationale by a number of factors, including the prosecutor’s
    demeanor, the reasonableness of the explanations, and whether they have some basis in
    accepted trial strategy. (Ibid.; Miller-El v. Cockrell (2003) 
    537 U.S. 322
    , 338-339
    (Cockrell).)
    4
    The trial court ruled that defendant failed to make a prima facie case of purposeful
    discrimination as to each of his Batson/Wheeler challenges. With one exception,3 the
    prosecutor stated on the record her race-neutral reasons for excusing each juror. After
    jury selection but before testimony began, the court restated the basis for denying
    defendant’s four Batson/Wheeler motions, describing race-neutral reasons why each juror
    was excused. The court also noted the composition of the final jury, which included
    three Black women and one Black man. In the court’s view, the number of Blacks on the
    final jury was “disproportionate as to the population, and disproportionate as to the
    number of people [the court] had in the entire voir dire to begin with.”
    Because the prosecutor identified nondiscriminatory reasons for exercising each
    peremptory challenge, it is unnecessary to determine whether defendant established a
    prima facie showing of a discriminatory purpose. (People v. Riccardi (2012) 
    54 Cal. 4th 758
    , 786.) “‘Accordingly, we express no opinion on whether defense counsel established
    a prima facie case of discrimination and instead skip to Batson’s third stage to evaluate
    the prosecutor’s reasons for dismissing [the] African-American prospective jurors.’
    [Citations]” (Id. at p. 787.)
    We examine the identified reasons for challenging the five excused Black jurors
    with these principles in mind. We find no merit to defendant’s contentions that the
    reasons were pretextual or reflected a discriminatory purpose.
    3 The prosecutor did not offer any reasoning for excusing one juror because the
    court found defendant’s motion untimely as to that juror. Later, the trial court identified
    its own race-neutral reasons for why the juror could be excused.
    5
    Juror 3A4
    The trial court initially found untimely defendant’s motion as to Juror 3A because
    the juror had already been excused well before defendant made a motion as to Jurors 3A
    and 12B. The parties disagree about whether defendant adequately preserved the issue of
    timeliness for this appeal. However, defendant did not raise the issue of timeliness in his
    opening brief and only argued the prosecutor’s dismissal of Juror 3A was racially
    motivated. Absent a showing of good cause, we will not consider an argument raised for
    the first time in an appellate reply brief. (Authority for California Cities Excess Liability
    v. City of Los Altos (2006) 
    136 Cal. App. 4th 1207
    , 1216, fn. 2.) Ultimately, the court did
    make findings identifying race-neutral reasons for excusing Juror 3A. Because defendant
    does not offer a convincing argument that the reasons are invalid or pretextual, we find
    the court’s implied denial of defendant’s Batson/Wheeler motion as to Juror 3A is
    supported by substantial evidence.
    The prosecutor did not offer any reason for excusing Juror 3A, but the trial court
    identified two different race-neutral reasons, impliedly finding defendant failed to make a
    prima facie case that the prosecutor’s peremptory challenge was racially motivated.
    Juror 3A was a Black female attorney who clerked for a summer in the public defender’s
    office. A peremptory challenge may be exercised where the juror’s responses suggest a
    pro-defense or pro-prosecution bias. (Wheeler, supra, 22 Cal.3d at p. 275.) Juror 3A
    also acted strangely, fidgeting and unable to sit still. According to the court, “Some
    people are fidgety, but that manner of acting standing alone made her stand out, in the
    court’s eye, from anybody else.” A juror may be validly excused based upon body
    language, facial expressions, hunches, and even for arbitrary reasons as long as those
    4  We refer to the excused jurors simply as “jurors,” rather than as “prospective
    jurors,” for the sake of brevity and clarity. We also identify jurors by the number where
    they were seated in the jury box, together with a letter to signify whether the juror
    replaced a prior juror in that seat. So, for example, Juror 12B took seat 12 in the jury box
    after Juror 12A was excused.
    6
    reasons are not discriminatory. (See People v. Turner (1994) 
    8 Cal. 4th 137
    , 165
    (Turner), overruled on different grounds in People v. Griffin (2004) 
    33 Cal. 4th 536
    , 555,
    fn. 5; Wheeler, supra, at p. 275.) Both of the court’s observations about Juror 3A provide
    substantial evidence of valid, race-neutral reasons for excusing that juror.
    Juror 12B
    Juror 12B is a Black man who had previously served on a civil jury that was
    unable to reach a verdict, as well as on a hung criminal jury. Juror 12B had been in the
    minority on both cases.
    The prosecutor dismissed Juror 12B based on his prior experience on civil and
    criminal juries that had been unable to reach verdicts and because Juror 12B was in the
    minority on both cases. The trial court stated the same reason for denying the motion.
    Prior experience on a hung jury is a valid reason for excusing a potential juror, as it
    “constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a
    unanimous verdict.” (Turner, supra, 8 Cal.4th at p. 170.) The prosecutor also explained,
    “He sat there during this entire process just looking forward, looking very upset about
    being here, and not participating other than the fact that he answered [the court’s]
    questions.” Absent evidence to the contrary, this is also a valid, race-neutral reason for
    excusing a juror. (See, e.g., People v. Reynoso (2003) 
    31 Cal. 4th 903
    , 925-926 (Reynoso)
    [accepting prosecutor’s demeanor-based reason for excusing a juror “were neither
    inherently implausible, nor affirmatively contradicted by anything in the record”].)
    Juror 1A
    Juror 1A is a Black woman. Her responses to questions posed by the trial court
    were brief, but they revealed a possible bias against the police. When asked whether
    anyone close to her had a connection with the criminal justice system, she responded,
    “Three of my family members are involved in a crime.” She simply responded “yes”
    7
    when the court asked her whether she thought any of those people were not treated fairly
    by law enforcement. Her responses to the court’s efforts to explore her concerns
    demonstrate that she was not forthcoming with details:
    “Q: Okay. Let’s talk about that. Is that a family member, or friend, or what?
    “A: Family member.
    “Q: Okay. You don’t have to tell me the name of the person, just how close a
    relative to you?
    “A: Close.
    “Q: Sorry?
    “A: My daughter’s father.
    “Q: Okay. And what was it about what happened there, you know, that made you
    think, or somebody think, that maybe that person wasn’t treated fairly? Let me try it
    another way. What kind of crime was it?
    “A: It was a weapons charge.
    “Q: Okay. Now, was it a situation where the person felt that possessing the
    weapon, if that’s what they did, wasn’t really a crime? Or did they feel the police
    searched them improperly in order to find it? What was it about?
    “A: The search.
    “Q: Okay. Thank you. All right.”
    Defense counsel later asked the entire panel some questions about the truthfulness
    of police officers. “Does anyone here believe . . . that a police officer could also lie?”
    “Does anyone here have a problem thinking that an officer might lie?” Juror 1A did not
    respond verbally.
    Defendant argued to the trial court and also contends on appeal that the
    prosecutor’s failure to pose any questions to Juror 1A is evidence of discriminatory
    intent. The court compared Juror 1A’s answers to the answers of other jurors and found
    no prima facie case that the prosecutor’s peremptory challenge was racially motivated. A
    party’s failure to “engage in meaningful voir dire” on a topic important to that party can
    suggest the stated reason for dismissing a juror is pretextual. (People v. Lewis (2008) 43
    
    8 Cal. 4th 415
    , 476 (Lewis), citing Miller-El v. Dretke (2005) 
    545 U.S. 231
    , 246.) The court
    may nevertheless find a party’s stated reasons for excusing a juror credible when the
    party has not asked any questions of the juror. (Lewis, supra, at p. 477 [prosecutor could
    reasonably believe that voir dire would not alleviate concerns about juror].)
    The prosecutor did not ask Juror 1A any questions, but she did have an
    opportunity to observe the juror’s responses to questions posed by the trial court and
    defense counsel. She explained she excused Juror 1A based on the juror’s “overreaction”
    to defense counsel’s question about whether police officers lie. “Her reaction was such
    that she believes, of course police lie . . . . It was more like police are liars.” The court
    asked for more detail, and the prosecutor’s law clerk explained, “She rolled her eyes and
    kind of moved her head back three times in a much more distinctive way than any other
    juror who responded to the language.”
    The prosecutor also explained that Juror 1A appeared to feel very strongly that her
    daughter’s father was mistreated by the system and hesitated when asked whether close
    friends or relatives had been involved in the criminal justice system. Bad feelings about
    the police can be a valid reason for exercising a peremptory challenge. (People v.
    Johnson (1989) 
    47 Cal. 3d 1194
    , 1215.) In fulfilling its obligation to make a sincere and
    reasoned effort to evaluate the prosecutor’s explanation, “the trial court is not required to
    make specific or detailed comments for the record to justify every instance in which a
    prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted
    by the court as genuine. This is particularly true where the prosecutor’s race-neutral
    reason for exercising a peremptory challenge is based on the prospective juror’s
    demeanor, or similar intangible factors, while in the courtroom.” (Reynoso, supra, 31
    Cal.4th at p. 919.)
    Comparing Juror 1A’s answers to the answers given by other jurors, the trial court
    concluded there was no purposeful discrimination. Before trial started, the court
    reiterated its finding of no prima facie case, stating it believed the prosecutor’s
    explanation that the challenge was based on the juror’s skepticism of law enforcement
    and her physical demeanor.
    9
    Juror 1C
    Juror 1C5 is a Black woman. When asked whether anything made her feel like she
    could not listen to the evidence and make a decision without favoring one side or another,
    she responded that she believed her cousin was wrongly considered an accomplice in a
    robbery. Her cousin was the driver of the vehicle but purportedly did not have the same
    intent to commit the robbery. The trial court explained the concept of aiding and abetting
    and asked Juror 1C if the information changed her opinion of whether her cousin was
    treated fairly. Juror 1C responded, “Not really.”
    The prosecutor explained she exercised a peremptory challenge based on
    Juror 1C’s experience and feelings about her cousin’s case. “She still believed—believes
    that her cousin was wrongly charged and convicted. [¶] . . . And even after the [trial]
    court explained to her how a driver . . . could be guilty . . . of aiding and abetting, or of
    anything that was charged against the actual perpetrators of the crime, she still did not or
    could not agree with the court. I think she understands the concept of aider and abettor,
    but I think her feelings are really strong about what happened to her cousin.” Despite
    efforts to explain to the juror the aider and abettor theory of liability, the court noted that
    Juror 1C “still indicated she felt it was unfair that her cousin was treated the way she was
    in that matter.”
    Part of the prosecution’s strategy at trial was to demonstrate that defendant’s
    accomplice aided and abetted defendant. A juror’s feelings about the fairness of that
    theory of criminal liability would be a valid, race-neutral reason for exercising a
    peremptory challenge. (See People v. Calvin (2008) 
    159 Cal. App. 4th 1377
    , 1386
    [“skepticism about the fairness of the criminal justice system is a valid ground for
    excusing jurors”].) The credibility of a prosecutor’s race-neutral explanation is measured
    5 Juror 1C was originally in seat 15 when the court questioned her, and so the
    record identifies this juror interchangeably as Juror 1 and Juror 15.
    10
    by a number of factors, including “whether the proffered rationale has some basis in
    accepted trial strategy.” (Cockrell, supra, 537 U.S. at p. 339.)
    Juror 9A
    Juror 9A is a Black woman whose son had spent 13 months in custody for a
    weapon possession charge. She claimed that her son was “in the wrong place at the
    wrong time.” Pressed further, she stated that she blamed the police for her son’s
    conviction. When the prosecution asked her if she thought her son was mistreated by the
    police, she answered “I never said that he was mistreated, but I felt like they—he should
    have—he shouldn’t have taken the blame for what wasn’t been up to him.”
    Juror 9A felt law enforcement officers were disrespectful on a separate occasion
    when they chased an intruder into her apartment and did not give her sufficient
    explanation as to why they were chasing the intruder. The trial court noted this “in and of
    itself . . . [was] a ridiculous comment” since one would assume law enforcement officers
    would be called if someone intruded into their home.
    The prosecution unsuccessfully moved to excuse Juror 9A for cause and then
    exercised a peremptory challenge. The prosecutor referred back to her motion to excuse
    the juror for cause to give a race-neutral reason for exercising the peremptory challenge.
    She was concerned that Juror 9A was “clearly in some kind of denial about her son’s
    illegal activities” and “blames the police for her son being in jail.” A juror’s feelings and
    responses about a close relative’s negative interactions with law enforcement can be a
    valid, race-neutral reason for a peremptory challenge. (People v. Adanandus (2007) 
    157 Cal. App. 4th 496
    , 509 [prosecutor entitled to excuse juror from panel based on inference
    drawn from juror’s responses to questions about her son’s criminal history that she was
    not being forthright].)
    The trial court validly denied each of defendant’s four Batson/Wheeler motions.
    Substantial evidence supports the court’s findings that the prosecutor was not motivated
    11
    by race when she exercised a peremptory challenge as to the five Black jurors described
    above.
    Romero Motion
    Defendant contends the trial court abused its discretion in failing to strike his prior
    conviction for attempted robbery pursuant to section 1385 and Romero, supra, 
    13 Cal. 4th 497
    . Defendant argues he falls outside the spirit of the three strikes law because his prior
    strike took place almost nine years earlier, and his actions in both the prior and current
    offenses were driven by a painful medical condition, neurofibromatosis. We find no
    merit in this argument.
    Section 1385 provides the trial court with discretion to strike a prior felony
    conviction allegation in furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-
    530.) The court “must consider whether, in light of the nature and circumstances of his
    present felonies and prior serious and/or violent felony convictions, and the particulars of
    his background, character, and prospects, the defendant may be deemed outside the
    scheme’s spirit, in whole or in part, and hence should be treated as though he had not
    previously been convicted of one or more serious and/or violent felonies.” (People v.
    Williams (1998) 
    17 Cal. 4th 148
    , 161 (Williams).) A trial court must enter a statement of
    reasons in the minutes of the court when dismissing a prior conviction; however, it is not
    required to “‘explain its decision not to exercise its power to dismiss or strike.’” (People
    v. Carmony (2004) 
    33 Cal. 4th 367
    , 376 (Carmony).)
    This court reviews a ruling upon a motion to strike a prior felony conviction under
    a deferential abuse of discretion standard. (Williams, supra, 17 Cal.4th at p. 162.) The
    defendant bears the burden of establishing the trial court’s decision was unreasonable or
    arbitrary. (People v. Superior Court (Alvarez) (1997) 
    14 Cal. 4th 968
    , 977-978
    [presumption that trial court acts to achieve lawful sentencing objectives].) “Where the
    record demonstrates that the trial court balanced the relevant facts and reached an
    impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s
    12
    ruling . . . .” (People v. Myers (1999) 
    69 Cal. App. 4th 305
    , 310.) “[A] trial court does not
    abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
    person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
    The trial court’s focus was “to try and determine from the defendant’s prior
    conduct and what happened over time leading up to this case and what happened in this
    case, whether he falls outside the spirit of the law.” Defendant was convicted of
    attempted robbery in 2003 and then went to prison again on a felony conviction for
    possession of narcotics in 2005. The court noted that defendant committed the current
    offense while still on parole from his 2005 conviction, and he was having other problems
    on parole. According to his parole officer, defendant was associating with known gang
    members and tested positive for phencyclidine (PCP).
    Considering the facts of the current offense, the trial court emphasized that
    defendant “was the primary actor in this case. He was the one that was . . . feigning the
    presence of a weapon. He was the one that took possession of the property from the
    victims, and apparently he’s the one that distributed the property . . . .” The court
    disagreed with defense counsel’s characterization of the case as unsophisticated, pointing
    out that it is not a sign of lack of sophistication “when you’re driving around looking for
    a place to hit with the express intent that you are going to commit a robbery. And you’re
    bringing with you what, apparently was a fake gun in order to instill fear in the people.
    And then rounding them up in order to make good your crime and your escape.”
    The trial court also considered and rejected the argument that defendant’s actions
    were driven by his drug addiction: “If being a drug abuser is enough, then we can forget
    about the three strikes law because most people that are committing serious or violent
    felonies have drug problems or alcohol or some kind of substance abuse because,
    principally, that’s just the reason they do it.”
    In light of the factors considered, the trial court’s decision was not “so irrational or
    arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at
    p. 377.) Accordingly, we hold that it did not abuse its discretion in denying defendant’s
    Romero motion.
    13
    Sentencing Errors
    We invited the parties to submit letter briefs addressing whether the abstract of
    judgment correctly reflected the sentence imposed. The trial court imposed a five-year
    consecutive sentence under section 667, subdivision (a) and either did not impose or
    stayed enhancements under section 667.5, subdivisions (a) and (b). However, the
    abstract reflects a five-year consecutive sentence under section 667.5, subdivision (b),
    one stayed enhancement under section 667, subdivision (a), and two stayed
    enhancements under section 667.5, subdivision (c).
    Defendant first contends the abstract of judgment should be corrected to reflect
    one enhancement under section 667, subdivision (a) for a consecutive term of five years.
    Defendant also contends the trial court erred in staying the enhancements under
    section 667.5, arguing they must be stricken, rather than stayed. We agree with both
    points and remand with directions to strike the enhancements under section 667.5 and
    prepare an amended abstract of judgment reflecting a five-year consecutive sentence
    under section 667, subdivision (a) to the Department of Corrections and Rehabilitation.
    (See People v. Jones (1993) 
    5 Cal. 4th 1142
    , 1149-1153 [remanding with directions to
    strike the section 667.5, subdivision (b) enhancement].)
    14
    DISPOSITION
    The case is remanded for the trial court to correct sentencing errors consistent with
    the directions stated above. In all other respects, the judgment is affirmed.
    KRIEGLER, J.
    We concur:
    TURNER, P. J.
    KUMAR, J.*
    *     Judge of the Los Angeles County Superior Court assigned by the Chief Justice
    pursuant to article VI, section 6 of the California Constitution.
    15