P. v. Willis
Filed 11/7/13 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
Plaintiff
and Respondent,
v.
MANUEL WILLIS,
Defendant
and Respondent.
B245061
(Los
Angeles County Super.
Ct.
No. SA078622)
THE COURT:
It
is ordered that the opinion filed herein on October 16, 2013, and not certified for publication, be
At
the top of page 6, under subheading Juror 3A of the Discussion, the first full
paragraph is deleted and the following paragraph is inserted in its place:
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. Contrary to California Rules of Court, rule
8.204(a)(1)(B), defendant originally raised the issue of timeliness in a
footnote in his opening brief. We
decline to address the issue of timeliness, because 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
supported by substantial evidence.
There
is no change in the judgment. The
petition for rehearing is denied.
________________________________________________________________________
TURNER, P. J. KRIEGLER,
J. KUMAR, J.
Filed 10/16/13 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
Plaintiff
and Respondent,
v.
MANUEL WILLIS,
Defendant
and Appellant.
B245061
(Los
Angeles County Super.
Ct.
No. SA078622)
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)
but found not true allegations he was armed with and personally used a handgun
(§§ 12022, subd. (a)(1), 12022.5, subd. (a)).
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 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.â€
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 bitchâ€
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.â€
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.
DISCUSSION
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. (
338.) The three-step procedure also
applies to state constitutional claims.
[Citations.]†(
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. (
352, 364–365; Lenix,
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. (
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,
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
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.â€
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. (
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]†(
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.
3A
title="">[4]
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. (
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
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 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.
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 (
demeanor-based reason for excusing a juror “were neither inherently
implausible, nor affirmatively contradicted by anything in the recordâ€].)
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†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.â€
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 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.â€
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.â€
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.
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.
Juror 1C
Juror 1C
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.â€
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.â€
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
1377, 1386 [“skepticism about the fairness of the criminal justice system is a
valid ground for excusing jurorsâ€].) The
credibility of a prosecutor’s race-neutral explanation is measured 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.â€
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 by race when she
exercised a peremptory challenge as to the five Black jurors described above.
Motion
Defendant
contends the trial court abused its discretion in failing to strike his prior
conviction for attempted robbery pursuant to section 1385 and
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.’â€
(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,
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 ruling . . . .â€
(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.â€
(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.â€
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.â€
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.
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].)
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.
name="_ftn1" title="">* Judge of the Los Angeles County Superior Court assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
name="_ftn2" title=""> [1] All further statutory
references are to the Penal Code unless otherwise stated.
