People v. Smith CA2/1

Filed 12/17/20 P. v. Smith CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304081
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476398)
v.
THOMAS SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Affirmed.
Andrea Keith, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Thomas Smith attempted to steal a Rolls Royce from an
auto body repair shop but was interrupted by police. He fled the
scene in a stolen Honda and was apprehended after a dangerous
vehicle pursuit. A jury found him guilty of attempted second
degree robbery (Pen. Code., §§ 211, 664),1 fleeing a pursuing
peace officer’s motor vehicle while driving recklessly (Veh. Code,
§ 2800.2), driving or taking a vehicle without consent (Veh. Code,
§ 10851, subd. (a)), and resisting, delaying, or obstructing a peace
officer (§ 148, subd. (a)(1)). He admitted a prior strike conviction
within the meaning of the Three Strikes Law (§§ 667, subds. (b)-
(j), 1170.12), and a prior serious felony conviction (§ 667, subd.
(a)(1)). The trial court sentenced him to a total of 10 years and
four months in state prison.
During trial, Smith’s attorney unsuccessfully challenged
two of the prosecutor’s peremptory challenges under Batson v.
Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]
(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
On appeal, Smith challenges the trial court’s denial of one
of his two Batson/Wheeler motions. He also challenges the
sufficiency of the evidence supporting his attempted robbery
conviction. We affirm.
Substantial evidence supports the trial court’s denial of
Smith’s Batson/Wheeler motion because the prosecutor’s
explanation was reasonable and race-neutral, and there is no
evidence indicating it was a pretext for discrimination. Smith’s
challenge to the sufficiency of the evidence fails because he
incorrectly asserts the People had to prove the victim was in
sustained fear, which is not an element of attempted robbery.
1 Subsequent undesignated citations are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On March 22, 2019, Mouchegh Yeghikian, the owner of an
auto body repair shop specializing in luxury cars, was working at
his shop in Hollywood. Yeghikian saw Smith sitting in a Honda
Accord parked across the street outside his shop. Smith
remained in the Honda for about two hours. During the time
Smith was parked outside, Yeghikian moved a Rolls Royce from
inside the shop to a location on the street, placing the keys in his
pocket. Later, while Yeghikian was assisting a customer, Smith
suddenly appeared and asked Yeghikian for the keys to a Rolls
Royce. Thinking Smith was a customer, Yeghikian asked Smith
for his name. Smith replied, “Don’t ask my name.” Yeghikian
worried Smith was going to steal the car so he asked Smith to
come with him to his office, hoping to “relax” him and avoid
causing a disturbance in the shop.
Once in the office, Smith told Yeghikian, “don’t play dumb
with me, don’t think I’m stupid, you know what I want.”
Yeghikian tried to calm Smith down by offering him something to
drink. Smith put his hand in his shirt or his sweater in a manner
that suggested to Yeghikian that Smith was reaching for a gun.
Yeghikian became increasingly worried for his safety and
retrieved a gun himself. At that point, Yeghikian heard sirens
outside.
Smith and Yeghikian walked outside as police officers
arrived. Los Angeles Police Department Officer Lazaro Ortega
ordered Smith to stop and raise his hands. Smith did not comply.
Officer Ortega repeated the order and Smith still failed to
comply. Officer Ortega’s partner drew her weapon, and Officer
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Ortega fired his Taser at Smith. The Taser did not subdue
Smith. Smith ran to the Honda, said “ha ha,” and drove away.
Officer Ortega and his partner pursued Smith in their
patrol car. Smith drove recklessly. At times he drove against
traffic on the wrong side of the road, and at one point his speed
reached 75 miles per hour down a residential street. The officers
succeeded in stopping Smith when he pulled into the driveway of
a business that had no exit.
Subsequent investigation revealed Smith had been driving
a Honda Accord that had been stolen from Honda of Hollywood.
B. The Batson/Wheeler Motions
The venire panel consisted of 40 prospective jurors. The
trial court, prosecutor, and defense counsel conducted voir dire of
the entire panel.
Juror No. 5 stated that she was a paralegal working in the
area of civil employment law. She indicated that she had three
adult sons who worked for the Los Angeles Unified School
District and for a trucking company. She had served on one
previous civil jury which returned a verdict. She also stated that
she understood and was “okay” with applying the reasonable
doubt standard.
Juror No. 72 had served as a juror in a criminal case in
which a verdict was reached. Although he had been arrested for
driving under the influence 25 years ago, he stated that
experience would not cause him to favor one side over the other.
In response to questioning from defense counsel, he stated that
the high burden of proof in a criminal case meant, “You have to
2 JurorNo. 7 originally was identified as Juror No. 15, and
subsequently was seated as Juror No. 7.
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have a lot of evidence.” Juror No. 7 expressed concern that his
employer did not pay for jury service. The court explained that
jury duty caused a financial impact for many jurors, at which
point Juror No. 7 interrupted the court. The court then
instructed Juror No. 7 “to be patient, and let’s see where we end
up.”
The prosecutor exercised four peremptory challenges
excusing Jurors No. 5 and No. 7, who were two of “three or four”
African-Americans in the venire. Smith’s counsel raised a
Batson/Wheeler objection to the prosecutor’s excusal of Jurors No.
5 and No. 7. This prompted the following exchange during a
sidebar conference:
“[Defense Counsel]: I am having an issue with the last two
peremptories exercised by [the prosecutor]. My client is African-
American, and I have a problem with that because I think there’s
[a] very small handful on this entire panel, only three or four.
“The Court: [Prosecutor]?
“[Prosecutor]: Batson-Wheeler motion?
“The Court: It’s a Batson-Wheeler.
“[Prosecutor]: You want to hear the reasons for why?
“The Court: I do. The record should reflect that Juror
No. 5 who was excused was [B]lack, and Juror No. 7, the prior
peremptory, is a [B]lack male.
“[Prosecutor]: Juror No. 7, the reason that I have . . .
“The Court: Excused him is?
“[Prosecutor]: There’s a few reasons. 1, he had a prior
DUI. No. 2, he said that—he said the words the People have to
have a lot of evidence, that the People have to have a lot of
evidence. And at one point he interrupted you, your honor, and
he was arguing about the fact that he was not going to get paid.
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He said today that he didn’t want to be here. He also said that he
has a really bad financial situation.
“The Court: He did.
“[Prosecutor]: For those reasons, the People exercised their
peremptory.
“The Court: Okay. And for the [B]lack female? [Juror No.
5]
“[Prosecutor]: For the [B]lack female, she was a civil
paralegal in employment law, and that’s the main reason. I
didn’t want to have a civil paralegal on my jury. I can see my
notes.
“The Court: Are you claiming because of her knowledge in
the law?
“[Prosecutor]: Not because of her knowledge. I just felt
that she may confuse issues with her civil background versus
criminal background.
“The Court: Okay. The [c]ourt is satisfied that this is not a
prima facie showing for [a Batson/Wheeler challenge] because the
[c]ourt does make notes of Juror No. 7, a [B]lack male that was
excused and his reluctance to serve because of his financial
concerns. And I did indicate to him that I have taken note of his
financial concerns, so you do have a rational[e] for the
peremptory on the [B]lack male. With regard to the
Batson/Wheeler [challenge], I don’t find a prima facie showing.
Let’s go forward.”
DISCUSSION
A. The Batson/Wheeler Motion
Smith argues the trial court erred in denying his
Batson/Wheeler motion because the prosecutor did not provide a
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reasonable explanation for excusing Juror No. 5 (the paralegal).3
He also contends the trial court erred by failing to make a finding
that the prosecutor’s proffered reasons were genuine. We
disagree.
The prosecutor’s explanations for dismissing Juror No. 5
were reasonable and race-neutral on their face. Although the
trial court failed to make a specific finding of the genuineness of
the prosecutor’s reasons, our review of the challenge to Juror
No. 5 does not support Smith’s claim of purposeful
discrimination.
1. Standard of Review and Governing Law
“Both the state and federal Constitutions prohibit the use
of peremptory strikes to remove prospective jurors on the basis of
group bias. [Citations.] The now familiar Batson/Wheeler inquiry
consists of three distinct steps. First, the opponent of the strike
must make out a prima face case by showing that the totality of
the relevant facts gives rise to an inference of discriminatory
purpose in the exercise of peremptory challenges. Second, if the
prima facie case has been made, the burden shifts to the
proponent of the strike to explain adequately the basis for
excusing the juror by offering permissible, nondiscriminatory
justifications. Third, if the party has offered a nondiscriminatory
reason, the trial court must decide whether the opponent of the
strike has proved the ultimate question of purposeful
discrimination. [Citation.]” (People v. Scott (2015) 61 Cal.4th
363, 383.)
3 Smith does not contest the trial court’s ruling as to Juror
No. 7.
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“ ‘Review of a trial court’s denial of a [Batson/Wheeler]
motion is deferential, examining only whether substantial
evidence supports its conclusions. [Citation.] “We review a trial
court’s determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges ‘ “with great
restraint.” ’ [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. . . .” ’ [Citations.]” (People v. Miles
(2020) 9 Cal.5th 513, 539.) In proving purposeful discrimination,
“ ‘[t]he defendant has the ultimate burden of persuasion.
[Citation.]’ ” (People v. Hardy (2018) 5 Cal.5th 56, 75-76
(Hardy).)
2. Substantial Evidence Supports the Trial Court’s
Denial of Smith’s Batson/Wheeler Motion
The trial court asked the prosecutor to state his reasons for
excusing Juror No. 5 before ruling on the first stage in the
Batson/Wheeler analysis. Where the trial court “finds no prima
facie case, but does so only after the prosecutor has stated his or
her reasons for the challenges, ‘ “we infer an ‘implied prima facie
finding’ of discrimination and proceed directly to review of the
ultimate question of purposeful discrimination.” ’ [Citation.]”
(People v. Bryant (2019) 40 Cal.App.5th 525, 536, quoting Hardy,
supra, 5 Cal.5th at p. 76.) “Accordingly, ‘we must determine
whether the trial court correctly ruled that the defense did not
demonstrate discriminatory purpose at the third stage.’ ” (Hardy,
supra, at p. 76.)
The prosecutor’s explanation for a strike “ ‘does not have to
support a challenge for cause, and even a trivial reason, if
genuine and race neutral, is sufficient.’ ” (Hardy, supra, 5
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Cal.5th at p. 76.) Our review “ ‘is focused on whether the
proffered neutral reasons are subjectively genuine, not on how
objectively reasonable they are. The reasons need only be sincere
and nondiscriminatory.’ ” (Ibid.)
Smith argues the prosecutor’s explanation for excusing
Juror No. 5 was not neutral. He complains the prosecutor gave a
very brief explanation, limited to stating that she was a civil
paralegal in employment law.
Contrary to Smith’s assertion, the prosecutor also indicated
he was concerned Juror No. 5 might “confuse issues with her civil
background versus criminal background.” “[A] close and
pervasive connection to lawyers and the judicial system is a
legitimate and recognized reason for a prosecutor to exercise a
peremptory challenge.” (Hardy, supra, 5 Cal.5th at p. 81.)
Accordingly, the prosecutor’s stated reason for excusing Juror
No. 5 is reasonable and race-neutral. (See also People v. Clark
(2011) 52 Cal.4th 856, 907 [finding a challenge to a prospective
juror because she was an administrative law judge was a
legitimate race-neutral reason]; People v. Reynoso (2003) 31
Cal.4th 903, 925 [a prosecutor may “challenge a potential juror
whose occupation, in the prosecutor’s subjective estimation,
would not render him or her the best type of juror to sit on the
case for which the jury is being selected”].)
Smith faults the trial court for failing to make a specific
finding that the prosecutor’s reason for excusing Juror No. 5 was
genuine. Where, as here, “ ‘ “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.” ’ ” (Hardy, supra, 5 Cal.5th at p. 76; see also People v.
Reynoso, supra, 31 Cal.4th at p. 919 [“the trial court is not
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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”].) “Some neutral reasons for a challenge are
sufficiently self-evident, if honestly held, such that they require
little additional explication.” (People v. Gutierrez (2017) 2 Cal.5th
1150, 1171.)
Smith asserts in a conclusory fashion that “simply because
[Juror No. 5] is in civil law is not a viable reason as she
specifically stated on the record that she understood the criminal
burden of proof and would not confuse the issues.” This concern,
however, is relevant to a challenge for cause, not a peremptory
challenge. (People v. Bryant, supra, 40 Cal.App.5th at pp. 537-
538.) Merely because Juror No. 5 stated she understood civil
versus criminal legal standards did not compel the prosecutor to
accept her assurance.
The prosecutor’s stated reason for excusing Juror No. 5 due
to her occupation was supported by the record and inherently
plausible. (See Hardy, supra, 5 Cal.5th at p. 84 [finding the
excusal of a non-lawyer supervisor of a litigation department at a
large corporation was reasonable given the prospective juror’s
close connection to the legal field].) The reason was sufficiently
self-evident that a detailed finding by the trial court was not
necessary. Nothing in the record supports Smith’s contention
that the prosecutor’s stated reason was pretextual. Therefore, we
conclude that substantial evidence supports the trial court’s
denial of Smith’s Batson/Wheeler motion.
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B. Sufficient Evidence Supports Smith’s Conviction for
Attempted Robbery
Smith argues there was insufficient evidence to support his
conviction for attempted robbery because the prosecution failed to
establish that the victim feared him, which he contends is a
required element of the charged crime.
“Robbery is ‘the taking of personal property of some value,
however slight, from a person or the person’s immediate presence
by means of force or fear, with the intent to permanently deprive
the person of the property.’ [Citation.]” (People v. Jackson (2016)
1 Cal.5th 269, 343.) “[N]either a completed theft [citation] nor a
completed assault [citation], is required for attempted robbery.”
(People v. Medina (2007) 41 Cal.4th 685, 694.) The only two
elements of any attempted crime are “a specific intent to commit
[the crime] and a direct, [but] ineffectual act [done] toward its
commission.” (Ibid.) The direct but ineffectual act must go
beyond mere preparation but need not be an actual element of
the crime attempted. (Ibid.)
“It is true that an element of force or fear must be proved in
order to establish a conviction for robbery under . . . section 211.
It is not necessary, however, for this element to be reflected in
the overt act of an attempted robbery if the crime has not
progressed to that point.” (People v. Vizcarra (1980) 110
Cal.App.3d 858, 862.) Therefore, Smith’s argument fails as a
matter of law because the crime of attempted robbery does not
require proof the defendant put the victim in a state of fear.
Insofar as Smith’s reply brief raises a more expansive
challenge to the sufficiency of the evidence supporting his
conviction for attempted robbery, we would reject it as well.
There he argues the conduct of waiting outside the shop, refusing
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to give his name, and then acting in a manner inside of the office
that made Yeghikian believe that he had a gun is, at best, the
actions of “someone preparing to commit a simple theft, not a
robbery.”
As an initial matter, we observe that “ ‘[p]oints raised in
the reply brief for the first time will not be considered, unless
good reason is shown for failure to present them before.’ ” (People
v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1232.)
Even were we to consider Smith’s argument on the merits,
however, we would reject it. In a challenge to the sufficiency of
the evidence, we review the trial record to determine whether a
reasonable trier of fact could have found proof of guilt beyond a
reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
When making this determination, we are not authorized to decide
“ ‘whether [we] believe[ ] that the evidence at the trial established
guilt beyond a reasonable doubt.’ ” (Jackson v. Virginia (1979)
443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) Rather, we
must consider the evidence in the light most favorable to the
prosecution, and must presume the trier of fact resolved
conflicting evidence in favor of the prosecution. (People v. Lee
(2011) 51 Cal.4th 620, 632.)
The record shows that Smith parked outside Yeghikian’s
auto body repair shop in a stolen car and waited two hours.
During that time, Smith had the opportunity to observe
Yeghikian move a Rolls Royce into the street and place the keys
in his pocket. After Smith asked for the keys to the Rolls Royce,
he refused to provide his name to Yeghikian. Despite Yeghikian’s
attempt to calm Smith, Smith told Yeghikian “don’t play dumb
with me, don’t think I’m stupid, you know what I want.” Smith
then put his hand in his shirt or jacket, signaling to Yeghikian
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that Smith had a gun. Based on these facts, a reasonable trier of
fact could find beyond a reasonable doubt that Smith committed
the crime of attempted robbery. (See, e.g., People v. Vizcarra,
supra, 110 Cal.App.3d at p. 861 [finding sufficient evidence to
support an attempted robbery conviction where the defendant
approached a liquor store with a rifle, and hid on an adjacent
pathway until he was seen by a customer and then left]; see also
People v. Sanchez (2016) 63 Cal.4th 411, 470 [in the penalty
phase of a death penalty case, finding sufficient evidence to
support the jury’s consideration of the defendant’s prior
commission of an attempted robbery, where the defendant and
four other men arrived at a coffee shop armed, positioned their
car to make a quick getaway, momentarily entered the coffee
shop but then went back outside where they lingered until the
owner called the police].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J. CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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