P. v. Ceras
Filed 4/17/13 P. v. Ceras CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCOS CERAS,
Defendant and Appellant.
B240200
(Los Angeles
County
Super. Ct.
No. PA047668)
APPEAL
from a judgment of the Superior Court
of
County. Shari
K. Silver, Judge. Affirmed.
Linn
Davis, 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, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Pamela C. Hamanaka, Deputy Attorney
General, for Plaintiff and Respondent.
_________________________________
Defendant
Marcos Ceras appeals from the judgment entered following a jury trial in which
he was convicted of attempted murder,
shooting at an inhabited dwelling, and assault with a firearm, with
findings defendant personally fired a gun and personally inflicted great bodily
injury. Defendant contends the trial
court erred by denying his motions contesting the prosecutor’s use of a
peremptory challenge against a prospective juror and seeking dismissal due to
the destruction of evidence by the police.
We affirm.
BACKGROUND
Defendant
and Martha Chavez were married and had a daughter who was born in 2002. Chavez’s family did not want her to be with
defendant because he physically abused her.
In 2003, defendant punched Chavez in the face, causing a cut and
bruising. He was convicted of
misdemeanor infliction of corporal injury on a spouse based upon that
incident. Chavez continued to live with
defendant after that incident because she felt she could not be without
him. At one time, defendant lived with Chavez
at 11172 Telfair Avenue in
Pacoima, but as of at least May 2, 2004,
defendant no longer lived in the home.
(Undesignated dates pertain to 2004.)
Chavez and her daughter continued to reside there with members of her
family.
On May 2,
defendant picked up Chavez and their daughter and they went to a park. Defendant asked Chavez to get back together,
but she refused, saying she could not be with him because her family was
opposed. Chavez later told Los Angeles
Police Department (LAPD) Detective Andrew Barkman that defendant said that if
he could not have her, no one else could, and he was going to kill her. Chavez testified at trial that she did not
take defendant’s statement seriously.
Later on
May 2, Chavez discovered that her car, which she had parked near the home of
defendant’s mother, had been burned.
When Chavez told defendant, he laughed.
Chavez told Barkman that she confronted defendant about the car and he
admitted he had burned it.
About 10:00 to 10:30 p.m. on May 3, defendant repeatedly
phoned Chavez, who was at home at the house on Telfair with her family,
including Juliana Dedios and Alfredo Rodriguez, both of whom knew
defendant. Defendant wanted to see his
daughter, but Chavez said their daughter was sleeping. Defendant and Chavez argued. Chavez disconnected the phone because she was
tired of hearing it ring. About five
minutes later, defendant arrived at Chavez’s house. Defendant stood outside an open window that
was next to the front door. The window
had a metal security screen. According
to Rodriguez and Dedios, the porch light was on; according to Chavez, it was
off. Chavez, Dedios, and others were
seated at a table and Rodriguez was near the window, face-to-face with
defendant. Rodriguez and Dedios
testified they could clearly see defendant standing outside the window and he
was alone. Chavez testified that she
recognized defendant’s voice and could also see him as he stood outside the
window. On
“two shadows†“on the carport,†but conceded she did not tell this to police
officers or a social worker to whom she later spoke.
Defendant
asked to see his daughter, and Chavez refused.
They argued through the window’s security screen. Chavez told defendant to leave and said she
was going to call the police. She stood
up and walked toward the counter where the phone was located. Chavez testified she heard shots and began
running toward the back door. At trial
she denied that she saw defendant with a gun; she simply assumed defendant had
a gun because she heard gunshots. Chavez
told Barkman on May 4 that she saw defendant use his right hand to remove a
small gun with a four-inch brown handle from his right front trouser pocket,
then saw defendant manipulate the gun with his left hand, and after seeing
this, she began running, then heard three shots. Rodriguez testified Chavez said, “He has a
gun,†and Dedios testified Chavez said, “Oh, my God†as she looked toward
defendant. Dedios told Officer Melissa
Sanchez on the night of the shooting that Chavez gasped right before defendant
began shooting. Dedios told Barkman on
May 4 that Chavez gasped, covered her face, and began to run just before
defendant began shooting. Rodriguez
testified he saw defendant shooting, and after the first two shots, Rodriguez
dove to the ground to shield his young daughter. Dedios testified defendant extended his arm
and she saw “sparkles†coming out of the barrel of the gun. Both Rodriguez and Dedios testified defendant
fired four to six shots. Chavez ran
toward the backyard as defendant fired.
When defendant stopped shooting, he ran.
Dedios testified defendant was still alone when he ran away.
Chavez
testified that when she reached the backyard, she realized her left leg felt
hot and she saw blood. She jumped two
fences and knocked on neighbors’ back doors for assistance, but no one
responded. She attempted to jump fences
to get back to her own yard, but passed out in a neighbor’s yard. A single bullet had passed through Chavez’s
left thigh, created a large hole in a major vein, then entered her right thigh,
where it remained. Surgeons inserted an
artificial vein to repair the injured vein.
Chavez had lost more than half of her blood and was in shock when she
was first treated at the hospital. She
remained in the hospital for seven days.
Even after repair, the vein injury created the potential for lifelong
problems, including blood clots. Chavez
testified she has scars and at the time of trial in late January of 2012 she
still experienced pain and numbness from time to time.
Salvador
Orozco testified that his house was located on Telfair, across the street from
the house next door to Chavez’s home. He
knew both Chavez and defendant from school.
About 10:00 p.m. on May 3, he was outside, in front of his house, and
had a clear view of Chavez’s house. A
streetlight in front of Orozco’s house was on.
Orozco saw defendant inside the yard of Chavez’s home, walking toward
the house. Orozco heard Chavez scream,
“Go away.†Orozco then heard what
sounded like banging on the security screen with something made of metal. Orozco then heard three gunshots and saw
defendant running away from Chavez’s house, out the front gate, and down
Telfair toward Desmond Street. Defendant
was alone the entire time Orozco observed him.
Benito
Macias, who lived in the house behind Chavez’s house, testified that he heard
about six gunshots from the vicinity of Chavez’s house on May 3, between 10:00
and 10:30 p.m. Soon thereafter, Chavez
knocked on Macias’s back door asking for help.
By the time Macias got to the door, Chavez was gone. Macias walked to his back fence and looked
over. He saw an older woman who was
frantic and screaming that her daughter had been shot by her daughter’s
boyfriend. Macias saw Chavez in a
different yard and directed the police and paramedics to her when they arrived.
Officer
Sanchez testified that she was one of the officers who responded to Chavez’s
house after the shooting on the might of May 3.
Chavez was bleeding and there was blood on exterior walls. Chavez was conscious, and Sanchez asked her
who shot her. Chavez replied, “Marcos
Ceras.†Sanchez walked down the street
to a cul-de-sac, where she saw a white car parked in a driveway, with the keys
in its ignition. At trial, defendant
agreed (but did not stipulate) the car was one he was known to drive, and
fingerprints found on the outside of the driver’s door window and hood were
matched to defendant. No match was found
for other fingerprints lifted from the car.
On the night of May 3 Sanchez interviewed Salvador Contreras, who lived
in a house on the cul-de-sac, about six houses from Chavez’s house. Contreras told Sanchez that he saw the white
car parked in front of his house and saw two Hispanic men seated in the front
seat of the white car. Contreras told
Sanchez that he watched the car from his front window for about 30 minutes and
saw the driver get out of the car and talk on a mobile phone, then walk down
Telfair. Contreras told Sanchez that the
passenger remained in the car for about 10 minutes, then he also got out and
walked down Telfair.
Chavez told
Officer Samuel Huizar on the night of May 3 and Barkman on May 4 that defendant
came to the house to see their daughter, Chavez and defendant argued, then
defendant shot Chavez. She did not
mention seeing two people or shadows of two people to either officer. She told both officers they might find defendant
at his mother’s home on Kraft Avenue in North Hollywood. Chavez also told clinical social worker Mary
Kincaid, who spoke to Chavez in the hospital, that she feared her husband
because he shot her. Chavez did not
mention a second shooter.
The police
observed two bullet holes in the metal security screen on the front window
where the witnesses said defendant had stood.
The wires on the screen were bent inward, consistent with shots being
fired into the house from outside the screen.
The police also observed three bullet holes on a wall dividing the
living room from the kitchen, and two strike marks on some cabinets in the
dining room area. Two of the three
bullets that entered the wall apparently remained in the wall and were not
recovered. One bullet went through a
satellite television antenna and ended up in a kitchen drawer. There was one drop of blood in the house,
somewhere between the kitchen and the back door, and more blood in the
backyard. Detective Margaret Brownell
collected three bullet fragments—one from the dining room next to the cabinets
displaying bullet strike marks, one from the kitchen floor, and one from a
kitchen drawer. No casings were present
and no gun was ever recovered in this case.
Brownell testified that a bullet can change course, deform, or fragment
when it strikes something. Brownell opined
that at least five shots were fired, based upon the three bullet holes in the
wall and the two strike marks on the cabinets.
Those strike marks were in a downward direction. Brownell also testified that the porch light
was on when she arrived at Chavez’s house on the night of the shooting, and a
person in the living room-dining room area could clearly see another person
standing outside the window where the holes in the security screen were. On May 4, Barkman visited the house and
residents gave him a slug they said they found inside a Sparklett’s bottle and
five metal fragments that appeared to be bullet fragments.
Rodriguez
and Dedios testified that the holes in the window screen, the holes in the
wall, the hole in the satellite television antenna, and the strike marks on the
cabinet were not present before defendant began shooting on the night of May 3.
Barkman
obtained a warrant for defendant’s arrest on May 4 and asked the Fugitive Task
Force to search for defendant. Officers
repeatedly conducted surveillance at defendant’s mother’s house, and one of
those officers noticed a burned out car.
He did not know its significance at the time, and when he returned to
the site after learning about Chavez’s burned car, the car was gone. In June and September, Chavez told Barkman
that defendant had contacted her and she attempted to help the police find
defendant. Defendant was finally
arrested on December 21, 2009, by an officer investigating a small child left
in a car at 1:30 a.m. Defendant told the
officer his name was Marcos Mora. Later
the same day defendant’s true identity was determined through fingerprints.
On March
12, 2009, Lieutenant William Matthews ordered the destruction of the physical
evidence in this case, pursuant to an order from an LAPD bureau chief to reduce
the contents of the Foothill Division property room to 65 percent of its
capacity as quickly as possible. The
order indicated that Matthews should discard items that had been stored for
five years or more. Matthews had told the
bureau chief that destroying evidence might create legal issues, but the chief
just told him to get the percentages down.
Matthews ordered the destruction of 200 to 300 items of property. Department protocol required Matthews to
review the case notes to determine the status of a case before disposing of its
evidence. Matthews erred by only
superficially reviewing the case notes in this case. He did not realize that there was an
outstanding arrest warrant for defendant and, if he had realized this, he would
not have ordered the destruction of the evidence in this case. Department protocol also required Matthews to
contact the investigating officer, but Matthews did not do so. The property clerk was supposed to follow a
similar process, but at the time the property clerk at the Foothill Division
was new and in training. Matthews
characterized the destruction of the evidence in this case as a mistake and a
failure of the police department’s systems.
Matthews had no connection to this case, other than ordering the
evidence destroyed.
In January
of 2010 Barkman subpoenaed Chavez to appear at defendant’s preliminary
hearing. Chavez said she did not want to
testify because she did not want defendant to be incarcerated. Instead, she wanted him to be working and
paying her with child support. Chavez
failed to appear for the preliminary hearing several times, causing it to be
continued. Eventually, she appeared and
testified.
In May of
2011 Brownell returned to the crime scene.
The metal window security screen had not been repaired or replaced, and
the bullet holes and strike marks inside the house were still visible,
notwithstanding patching and painting.
Brownell and her partner shone a laser through the holes in the window
screen and were able to line it up with the holes in the wall. Photographs of their experiment were admitted
in evidence.
Defense
firearms expert Patricia Fant viewed crime scene photographs, but did not
attempt to visit Chavez’s house. Fant
testified that police could have conducted a chemical test on the holes in the
metal security screen, holes in the wall, and marks on the cabinets to
determine if they were made by bullets.
But after seven years such a test probably would not have been
useful. Fant conceded that the holes in
the security screen showed wires turned inward toward the house, they could
have been caused by firing multiple bullets through it from outside the house,
and if the home’s residents testified that the screen was not damaged before
someone fired a gun through it, then the holes were probably caused by the
shooter. Fant testified that the holes
in the wall, the hole in the satellite antenna, and the marks on the cabinet
were probably made by bullets, and she opined that at least five, and possibly
six shots were fired into the house. She
agreed that it would be easy to fire from outside the house through the
security screen and cause the bullet holes in the wall. She further agreed that bullets that strike
objects can change direction. But she
opined that, based on her review of the photographs, it did not appear possible
for shots fired through the holes in the window security screen to have made
the strike marks on the cabinets. To
make those marks, she opined, the shooter would have had to be farther to the
right of where the holes in the screen were.
Fant
further noted the failure of the police to recover the bullets that remained in
the wall and testified that if she had been able to examine the bullet
fragments and slugs, she may have been able to determine whether they were all
fired from the same gun, depending upon the size of the fragments and whether
the lands and grooves were visible. Fant
further noted that the police could have used trajectory rods to determine the
bullets’ trajectories and the shooter’s location.
Salvador
Contreras testified for the defense about seeing the white car parked in front
of his house. He testified he saw “two
shadows†in the car that he supposed were people. He went into his house and had dinner. He later saw that the white car was still
there, and about 45 minutes later he heard helicopters and the police. He remembered that at some point he saw a
person walking down the street.
Contreras recalled that he told the police that he had seen two Hispanic
males sitting in the front seat. He did
not recall whether he told the police anything about a mobile phone or people
walking down the street. At the
preliminary hearing, Contreras testified that he saw two people in the front
seat of the car.
When
recalled by the defense, Officer Sanchez testified that in her brief interview
with Dedios on the night of May 3, Dedios did not say she saw a gun or describe
the path in which Chavez moved. Dedios
did tell Sanchez that defendant came up to the window, argued with Chavez, then
began shooting. Sanchez also testified
that in the initial investigation of the shooting, the police had three
different descriptions of what defendant was wearing, but defendant was the only suspect because,
according to the witnesses, he was the only one standing outside the window
when the shooting occurred.
District
Attorney Investigator John Cheslock testified that when he interviewed Orozco
on May 3, 2011, Orozco said he ran for cover when he heard the gunshots, and
after he stopped, he looked across the street and saw defendant running away
from Chavez’s house and down the street in the opposite direction from the
cul-de-sac. Orozco said defendant was alone.
The jury
convicted defendant of attempted murder, shooting at an inhabited dwelling, and
assault with a firearm. The jury found
that defendant personally fired a gun (Pen. Code, § 12022.53, subd. (c);
undesignated statutory references are to the Penal Code), personally fired a
gun causing great bodily injury (§ 12022.53, subd. (d)), and personally
inflicted great bodily injury under circumstances involving domestic violence
(§ 12022.7, subd. (e)), but the jury could not reach a verdict on an
allegation that the attempted murder was willful, deliberate, and premeditated. The court sentenced defendant to prison for
10 years 8 months, plus 50 years to life, consisting of a term of 9 years
for attempted murder, plus an enhancement of 25 years to life pursuant to
section 12022.53, subdivision (d), plus a consecutive term of 1 year 8 months
for shooting at an inhabited dwelling, plus an enhancement of 25 years to life
pursuant to section 12022.53, subdivision (d).
The court stayed the sentence on the assault with a firearm conviction
pursuant to section 654.
DISCUSSION
of Wheeler-Batson motion
Defendant contends the trial
court erred by denying his motion based upon People v.
Kentucky
(1986) 476 U.S. 79 [106 S.Ct. 1712] (Batson),
challenging the prosecutor’s exercise of a peremptory challenge against
a female African-American prospective juror.
A party
violates both the California and United States Constitutions by using peremptory
challenges to remove prospective jurors solely on the basis of group bias, that
is, bias presumed from membership in an identifiable racial, religious, ethnic,
or similar group. (Wheeler, supra, 22 Cal.3d
at pp. 276–277; People v. Lancaster (2007) 41 Cal.4th 50, 74.) A party who believes his opponent is doing so
must timely object and make a prima facie showing of exclusion on the basis of
group bias. (Wheeler, at p. 280.)
If a prima
facie case is shown, the burden shifts to the other party to show that the
peremptory challenge was not based solely upon group bias, but upon a “specific
bias,†that is, one related to the case, parties, or witnesses. (Wheeler,
supra, 22 Cal.3d at pp. 276,
281–282.) “A [party] asked to explain his conduct must provide a
‘“clear and reasonably specific†explanation of his “legitimate reasons†for
exercising the challenges.’
[Citation.] ‘The justification
need not support a challenge for cause, and even a “trivial†reason, if
genuine and neutral, will suffice.’
[Citation.] A prospective juror
may be excused based upon facial expressions, gestures, hunches, and even for
arbitrary or idiosyncratic reasons.
[Citations.] Nevertheless,
although a [party] may rely on any number of bases to select jurors, a
legitimate reason is one that does not deny equal protection.†(People
v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) Although a party may exercise a peremptory
challenge for any permissible reason or no reason at all, implausible or
fantastic justifications are likely to be found to be pretexts for purposeful
discrimination. (People v. Huggins (2006) 38 Cal.4th 175, 227; Purkett v.
Elem (1995)
514 U.S. 765, 768 [115 S.Ct. 1769] (Purkett).)
Subjective
matters, such as a prospective juror’s body language or the way in which he or
she answered questions are adequate specific bias or race-neutral grounds for a
peremptory challenge. (
example of a permissible specific bias]; People
v. Johnson (1989) 47 Cal.3d 1194,
1217–1219 [“tired†appearance, defensive body position, sympathetic looks at defendant].) The United States Supreme Court has noted
that “race-neutral reasons for peremptory challenges often invoke a juror’s
demeanor . . . .†(
477 [128 S.Ct. 1203] (Snyder).)
The trial
court must then make a sincere and reasoned attempt to evaluate the explanation
for each challenged juror in light of the circumstances of the case, trial
techniques, examination of prospective jurors, and exercise of peremptory
challenges. (People v.
existed and actually prompted the exercise of each questioned peremptory
challenge. (Id. at p. 720.) The
proper focus is on the subjective genuineness of the nondiscriminatory reasons
stated by the prosecutor, not on their objective reasonableness. (People
v. Reynoso (2003) 31 Cal.4th 903, 924.)
“[T]he issue
comes down to whether the trial court finds the prosecutor’s race-neutral
explanations to be credible. Credibility
can be measured by, among other factors, the prosecutor’s demeanor; by how
reasonable, or how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy.†(Miller‑El v. Cockrell (2003) 537 U.S. 322, 339 [123 S.Ct.
1029].) “In assessing credibility, the
court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own
experiences as a lawyer and bench officer in the community, and even the common
practices of the advocate and the office that employs him or her.†(Lenix,
supra, 44 Cal.4th at p. 613.)
Because
personal observations, we
“review the decision of the trial court under the substantial evidence
standard, according
deference to the trial court’s ruling when the court has
stated reasons for a challenge to a particular juror.†(People
v. Hamilton (2009) 45 Cal.4th 863, 900–901, fn. omitted (
peremptory challenges in a constitutional manner and give great deference to
the trial court’s ability to distinguish bona fide reasons from sham
excuses. [Citation.] So long as the trial court makes a sincere
and reasoned effort to evaluate the nondiscriminatory justifications offered,
its conclusions are entitled to deference on appeal. [Citation.]’â€
(Id. at p. 901.) “On appeal, a trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is clearly erroneous.†(Snyder,
supra, 552 U.S. at p. 477.)
Defense counsel made a
challenges against two prospective jurors who were African-American. Defendant’s appellate claim is limited to one
of two jurors addressed in the motion:
Prospective Juror No. M7136, who occupied seat 16 during voir dire. Prospective Juror No. M7136 was an administrative assistant for the
Department of Defense with no prior jury service. Her late husband had been a school custodian. She had a 15-year-old child in high school
and a 25-year-old daughter in graduate school at Yale, studying nursing. The prosecutor, Tamar Tokat, asked Prospective
Juror No. M7136 just one
question, which pertained to whether she would “have a problem†with not being
“able to hold on to some physical evidence,†even though there would be
witnesses and photographs. Prospective
Juror No. M7136 said she would not have a problem.
As
soon as Prospective Juror No. M7136 was seated in the jury box, the prosecutor
exercised a peremptory challenge against her.
Defendant made a Wheeler-
challenges against Prospective Juror No. M7136 and a previously excused
prospective juror who knew defense counsel and ran a daycare defense counsel’s
grandchild attended. The trial court
noted that there were very few African-American prospective jurors on the panel
and the prosecutor had exercised peremptory challenges against two female
African-American prospective jurors. The
court found defendant had made a prima facie showing and asked the prosecutor
to explain her reasons for exercising peremptory challenges against the two
prospective jurors.
With respect to Prospective Juror
No. M7136, the prosecutor stated, “And
the juror that I just excused is based on demeanor, particularly with me, and
also her reaction to [defense counsel] Mr. Mack. She and another juror who was in the audience
have been sitting together from the beginning and those two jurors, I noticed
them, when Mr. Mack was making jokes yesterday, I noticed that they found him
very amusing. [¶] The vast majority of the room, almost nobody
else was laughing. They thought he was
very amusing. Aside from that, this
juror has her hands folded the entire time and when I have walked by her and
the other juror, in the hallway, it’s a type of attitude I get from them. First of all, it feels like a dirty look and
then as I walk by, they start laughing.
I have not heard what they’re saying, however, it makes me feel
uncomfortable, because I don’t know if it’s a personal thing. [¶]
And the last thing I need is somebody on the jury who has a personal
problem with me or something about me that doesn’t sit well with her. So she’s not going to listen to anything I
have to say, perhaps, finding Mr. Mack a more appealing presenter of whatever
it is he’s saying.â€
Upon
questioning by the court, the prosecutor stated that the other
prospective juror with whom she had seen Prospective Juror No. M7136 sitting
was also an African-American woman, and “they have been sitting in the back of
the audience the entire time, from last week until yesterday and also
today. And in the hallway, they’re
always sitting together.†The prosecutor also added a second
reason for excusing Prospective Juror No. M7136: “When Mr. Mack
inquired of the room as to whether, you know, who holds the police in high
esteem, I don’t recall her raising her hand.†The court stated that it believed Prospective
Juror No. M7136 had raised her hand. The
prosecutor stated that her notes indicated that she was not sure whether the
prospective juror had raised her hand.
The court
stated that her impression of Prospective Juror No. M7136 differed from that of
the prosecutor: “To me, her body
language, her demeanor, her manner of dress, she appeared to me to be of a much
more conservative professional impression rather than somebody younger[,] more
hip, more with the times. She appeared
to me to be very professional in appearance and her body language and her
answers. With a daughter at Yale in
nursing, that says to me: This is
somebody whose [sic] directional,
that brought up her kids to value education.
[¶] In terms of her sitting in
the audience, I believe I did see her sitting in the audience with perhaps one
of the few other African-Americans, Blacks in the courtroom. And I’m just not sure that bonding with
somebody while you’re doing jury service and sitting with them— [¶]
[Interruption by prosecutor.]
[¶] I’m not finished yet,
counsel. [¶] —is an issue.
Now, laughing at an attorney’s attempts to be funny, the attitude issue
that you are sensing, I understand that.
I understand that. I’ll hear from
Mr. Mack.â€
Defense
counsel began his argument by noting that there were four African-Americans in
the venire. The prosecutor interrupted
him and accused him of misconduct in making the Wheeler-Batson
motion. The court explained that defense
counsel had a duty to make such a motion to represent his client to the best of
his ability. Without allowing defense
counsel to resume his argument, the court denied the motion. The court first addressed the challenge to
the juror who knew defense counsel, finding it race-neutral. The court said, “So the way I’m viewing this
Wheeler is I’m concentrating on the second peremptory [Prospective Juror No.
M7136]. [¶] And
from the description that I heard from Ms. Tokat, the impressions and the body
language and laughter or something that Ms. Tokat has perceived in this Court’s
appearance has—is not exercised to exclude African-American/Blacks from the
jury. [¶] . . . However, in terms of appellate reasons, I
mean, appellate review, I’m placed in a very difficult situation. Some people find Mr. Mack to be funny. Some people do not. [¶]
It’s just something that is very difficult to review. Again, I do note from my impression of this
juror, she seemed much more on the conservative end. I believe she did raise her hand when asked
about law enforcement. But at this
point, I don’t find sufficient legal or factual cause to grant the Wheeler
motion. However, should more
peremptories be exercised, it can be renewed.â€
The prosecutor then made a
women.†Before hearing argument on that
motion, which the court ultimately denied, the court allowed defense counsel to
finish his argument on his own Wheeler-
the same argument against the alleged companion of Prospective Juror No. M7136
if she made it into the jury box, thereby eliminating two African-American
prospective jurors and leaving only one in the venire. He also argued that Prospective Juror No.
M7136 never made eye contact with him and seemed “very conservative . . . and
not defense-oriented at all.†He
perceived her as “rather cold†to him.
The court stated it would not address the issue of the other prospective
jurors at that time, and said, “So now, I’ve made my ruling on the
record.†But the court said it would
adjourn for the day without excusing Prospective Juror No. M7136 because the
court had “a right, before I excuse her, to change my mind. So I may think about it at this time.†The court added, “I may need to do some
further research.â€
The next
morning, the court noted that it had not excused Prospective Juror No. M7136
the prior day in order “to give me some time to think about the issues.†Defense counsel noted that “those two jurors
are out there sitting out in the hall right this second. They’re not sitting together, and they are not
talking to each other.†Judge Silver
went out into the hallway to observe the prospective jurors.
Upon Judge
Silver’s return to the courtroom, she noted, “I just walked out of the
courtroom into the lobby area outside of Department F, my courtroom, and I
observed the jurors. And the two Black,
African-American female jurors were not seated together and [
other. [¶] All
right. This is the court’s observations
and ruling on the situation. Ms. Tokat
has described observations that she had of these two jurors. She’s articulated on the record what she
perceived to be hostility to her specifically by the two female
African-American jurors. There is no way
for the court to make any type of credibility ruling on this because these are
observations that Ms. Tokat made by herself.
[¶] It is very common for human
beings in an unknown situation, such as being called to court for jury service,
to bond with people who are part of the group.
And I can conceive of no reason whatsoever why these two particular
jurors would feel hostility towards the prosecution. [¶]
Mr. Mack is a Black lawyer. Ms.
Tokat is not of African-American or Black descent. In this situation, it makes it so difficult
for the court to even balance both sides.
[¶] The way I am going to handle
this is as follows. I am concerned about
the defense Wheeler motion, and that’s why I indicated that I would think about
it at night. [¶] I have already said that the African-American
woman who was excused, who had contact as a preschool teacher with Mr. Mack’s
grandson, and with Mr. Mack’s wife and with Mr. Mack himself, and prior to
coming into the courtroom even spoke a greeting to Mr. Mack, I am not viewing
that at all as an excusal on race grounds.
Because with that contact, in my mind I’m treating it as if it was not
at all based upon race or nationality.
So at this point, I see it as an excusal of one African-American
female. [¶] Now, Ms. Tokat indicated that she believed
the two African-American jurors were speaking together and sat in the audience
together, at least one of the days; that there was hostility exhibited to
her. [¶]
If the other female African-American juror is called into the jury box,
we can deal with it as it comes up.
[¶] But at this time, I am
denying the Wheeler motion for the reasons stated. However, I still am concerned. [¶]
All right. That’s my ruling.â€
The parties
continued to argue the motion and the prosecutor stated that defense counsel
was calling her a racist and accused defense counsel of attacking her by
commenting on her shoes. The court
directed the prosecutor to “stop the outrage that this is a personal attack on
you†and ordered both counsel not to “comment to each other about their
personal attire or their personalities or their method of lawyering.†Defense counsel requested that the court ask
Prospective Juror No. M7136 whether she had raised her hand when he asked which
jurors held the police in high esteem.
The court stated, “And I believe she raised her hand ‘Yes.’†Defense counsel agreed. The court continued, “But as Ms. Tokat has
indicated, her main reason for excusing this juror was because of her—Ms.
Tokat’s perception of the demeanor and mannerisms of [Prospective Juror No.
M7136].†The prosecutor began to
reiterate her explanation. The court
stopped her, saying, “You indicated. You
said that. You’ve made the record. I understand.
[¶] I’ve ruled. I’ve denied the Wheeler motion. [¶]
It’s over. We don’t need it
repeated.†When the prospective jurors
returned to the courtroom, the court excused Prospective Juror No. M7136.
After the
jury was sworn, the court noted for the record that there was one female
African-American juror seated, apparently as Juror No. 12. The court inquired of the prosecutor whether
that juror was the companion of Prospective Juror No. M7136 to whom the
prosecutor referred in her explanations for her use of a peremptory challenge
against Prospective Juror No. M7136. The
prosecutor responded, “[T]his line of questioning is inappropriate at this
point.†The prosecutor then suggested
that “we need to take a break†because “I’m not sure your honor is feeling well
at this point, starting from the rolling eyes.†The court explained it was simply trying to
make an adequate record for appellate review.
Defense counsel requested that the court ask the seated African-American
juror whether she and Prospective Juror No. M7136 sat together and made faces
or giggled at the prosecutor. The court
declined to do so and stated, “Counsel, I understand your desire. And I thought about this issue extensively
the night that I was thinking over the first Wheeler motion. And I did not do any research on the
law. But I thought about our court
system and how I would like to be treated as a juror in the courtroom. [¶]
And this is not a situation where jurors were deliberating and I had to
find out whether certain things were said or done that were against the
instructions that I give jurors. This
was a perception that Ms. Tokat made—I’m sorry—observed, and she described it
on the record. [¶] . . .
[¶] The importance of, in my opinion,
the Wheeler motion that Mr. Mack made and Ms. Tokat’s response, as I said on
the record at the time, Ms. Tokat described her observations of body language
and verbal images. Nobody can be in Ms.
Tokat’s head over something like that.
Okay? [¶] And I am not going to
put Juror No. 12 in an uncomfortable situation for something that I believe at
this point becomes irrelevant and moot—not irrelevant but moot since she’s
already been sworn in as a juror.â€
Defendant
first argues that the trial court erred by ruling that the prosecutor’s
peremptory challenge against Prospective Juror No. M7136 was not of
constitutional magnitude because the court said, “‘I see it as an excusal of
one African-American female.’†Defendant
has taken the court’s statement out of context.
The court was explaining that it found the prosecutor’s reason for
excusing the other prospective juror who was the subject of defense counsel’s
that that prospective juror was an acquaintance of, and friendly toward,
defense counsel. Accordingly, the court
was focusing its analysis and remarks upon Prospective Juror No. M7136.
Defendant
next argues that “the trial court made a sincere inquiry into the genuineness
of the prosecutor’s reasons, but it failed to make a determination as to their
credibility. . . . [A]nd
it did so under the erroneous belief that it could put off this determination
because just one juror was involved.†In
support of this argument, defendant cites the trial court’s statement that
“‘[t]here is no way for the court to make any type of credibility ruling on
this because these are observations that Ms. Tokat made by herself.’†Defendant further argues, “In refusing to
make a factual finding as to whether the prosecutor’s reasons were bona fide
its abdication is inconsistent with the court’s obligations under
reversal. This is especially so where,
as here, the record itself contains ample reason to suspect that the
prosecutor’s reasons were not bona fide . . . .†Defendant then cites the acrimonious
relationship between the prosecutor and defense counsel and argues, “[T]he
prosecutor’s vendetta turned into a personal attack based on group bias. She did not like Mr. Mack, who is Black, and
perceived him as a threat to her case. He made jokes in court and people
laughed. By her own admission, she
feared he was more likable than her. Had
Mr. Mack not been Black this entire episode would not have occurred. In her mind, anyone Black was a threat to her
case because defense counsel is Black.
Blacks would likely side with defense counsel and she might lose all or
part of her case. Ms. Tokat, motivated
by jealousy, or revenge, or paranoia exercised her excusals based on group
bias.â€
Although
the prosecutor was discourteous to both defense counsel and the court, as
illustrated in part by portions of the record quoted and summarized herein,
defendant’s assertions regarding the prosecutor’s motivation for her peremptory
challenge against Prospective Juror No. M7136 are entirely speculative. The prosecutor stated a race-neutral reason
for the peremptory challenge: she
perceived Prospective Juror No. M7136 as hostile toward her based upon her
observations that (1) Prospective Juror No. M7136 and another prospective juror
who sat with Prospective Juror No. M7136 were two of few people who laughed at
defense counsel’s jokes and (2) Prospective Juror No. M7136 and the other
prospective juror gave the prosecutor “a dirty
look,†then began laughing as the prosecutor walked past them. Notwithstanding the trial court’s statements
that it had a different impression of Prospective Juror No. M7136 and that it
was “in a very difficult situation,†the court implicitly found the
prosecutor’s demeanor-based explanation to be credible. The court denied the motion on that basis
and, notwithstanding its later comments and willingness to entertain additional
argument by the parties, the court never modified that decision or
rationale. Considered in context, the
court’s statement the next day that “[t]here
is no way for the court to make any type of credibility ruling on this because
these are observations that Ms. Tokat made by herself,†while perhaps
poorly phrased, was not a reversal or abandonment of the court’s prior implicit
finding that the prosecutor’s demeanor-based explanation was subjectively
genuine. It was instead an observation
by the court that it did not observe the conduct to which the prosecutor
referred. Given the entire record, we believe the court was
simply contrasting the situation before it with one in which the court itself
had observed a prospective juror’s demeanor and conduct in the courtroom and
could use its observations to determine the subjective genuineness of counsel’s
explanation. But a trial court need not
personally observe or remember a prospective juror’s demeanor in order to
accept counsel’s demeanor-based explanation as subjectively genuine. (Thaler v. Haynes (2010) 559 U.S. 43, __ [130 S.Ct. 1171,
1174–1175].)
The trial court made a sincere and
reasoned effort to evaluate the prosecutor’s explanation and determined it was
subjectively genuine. The record
presents no reason for this court to depart from the principle of according
“‘deference to the trial court’s ability to distinguish bona fide reasons from
sham excuses.’†(Hamilton, supra, 45
Cal.4th at p. 901.)
of evidence
Defendant made two pretrial
motions to dismiss the charges due to the admitted destruction of physical
evidence in this case by the police.
Defendant’s motions were based upon Arizona v. Youngblood (1988) 488 U.S. 51
v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528] (Trombetta), which
essentially require law enforcement agencies to preserve evidence that both
possesses “exculpatory value that was apparent before the evidence was
destroyed†and is “of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.†(Trombetta, at p. 489.)
Defendant’s
first motion was denied by Judge David B. Gelfound on the ground that there had
been no showing of bad faith.
Defendant’s trial before Judge Gelfound ended in a mistrial because
interest and new counsel was appointed.
Before the
retrial, the prosecutor filed a motion to exclude evidence of alleged third
party culpability. Defendant responded
by filing a new motion to dismiss and a separate motion to admit third party
Silver.
Defendant’s
motion to dismiss stated that defendant was arrested on January 1, 2009, and
the evidence was destroyed the same month.
It cited Chavez’s phrasing at the preliminary hearing, where she
testified that “they shot me†and Contreras’s and Sanchez’s testimony at the
preliminary hearing about Contreras telling Sanchez that he saw two people in
the car in front of his house, the driver used a mobile phone, then got out and
walked down the street, and the passenger got out and also walked down the street
about 10 minutes later. The motion
argued that the destroyed evidence was material to the defense because “the
police knew that two men were in the parked car outside of the neighbor’s home. Two men exited the car. [Chavez] was clear that she was in the
kitchen when shots were fired. Officers
who responded to the scene prepared a schematic [] and took crime scene
photographs. Based upon the holes in the
screen it is unlikely, to the point of impossible, for a bullet to travel
straight, turn to the left, and then turn to the right. On its face the ballistics evidence has
exculpatory vale [sic].†The motion argued that bad faith by the
police could be inferred because the LAPD kept the “crucial ballistics evidence
for years and them [sic] inexplicably
destroy[ed] the evidence at the same time the defendant was arrested.†The body of the motion referred to exhibits,
but none are attached to the copy of the motion in the appellate record, and a
comment by Judge Silver chastising defense counsel during the hearing on the
motion indicates no exhibits were attached to the filed motion.
Judge
Silver commenced her consideration of the motion to dismiss by noting that
defendant misstated the dates of the destruction of the evidence and his
arrest. She noted that the evidence was
destroyed about nine months before defendant was arrested. Lieutenant Matthews testified at the hearing
on the motion much as he did at trial, and admitted that neither he nor the
property clerk followed departmental requirements with respect to the evidence
in this case. He was not involved in
this case in any other fashion. Had he
known there was an arrest warrant outstanding in this case, he would not have
ordered the evidence in this case to be destroyed. Defendant submitted numerous crime scene
photographs, a report by his investigator, and Fant’s report, and the trial
court expressly considered all of these materials, along with Matthews’s
testimony. After hearing extensive
argument, the court denied the motion, stating it found Matthews “100 percent
credible†and found no bad faith on the part of the LAPD. The court further stated that it found the
defense offer of proof regarding the exculpatory value of the destroyed
evidence was “speculation and not based upon anything more substantive than a
neighbor saying that he saw two people.â€
During his
closing argument at trial, defendant argued that, although he was present, he
did not fire any shots, and the shooter was the second person, whose shadow
Chavez testified she had seen on the porch and whom Contreras had seen getting
out of the white car and walking down Telfair.
He based this argument on the location of the bullet strikes on the
cabinet, the testimony about where defendant was standing outside the window,
and Fant’s testimony, and argued the failure of the police to use trajectory
rods to analyze the trajectories of the shots deprived him of “total
proof.†Defendant argued the destruction
of the physical evidence by the police was intentional, violated defendant’s right
to due process, and deprived defendant of any possibility of a fair trial, but
admitted he could not “tell you what would have happened had [the bullet
fragments] been properly preserved and examined.â€
On appeal,
defendant contends that the trial court erred by denying his
of the evidence was in “bad faith as a matter of law,†and the exculpatory
value of the destroyed evidence was apparent before it was destroyed because
“[o]nly one drop of blood was found inside
the house on the kitchen floor. The rest
was outside. [Chavez] did not feel the
shot until she was outside. There was
strong evidence of the presence of two people at the scene of the crime. Based on the police diagram [of the crime
scene] and photos, [defendant’s] shots did not strike the victim. The likelihood that the destroyed evidence
would have enabled [defendant] to prove that his shots did not proximately
cause [Chavez’s] great bodily injury was substantial. The prejudice ascribed to the destruction is
the difference between a 20 year determinate term and a 25 year to life
indeterminate term, in this case, imposed twice consecutively.†Defendant requests that we dismiss the
section 12022.53, subdivision (d) and section 12022.7, subdivision (e)
allegations.
As a matter
of due process, law enforcement agencies have a duty to preserve evidence that
might be expected to play a significant role in the suspect’s defense. Such “evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed, and be
of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.â€
(Trombetta,
supra, 467 U.S. at pp. 488–489.) If all that a defendant can say about the
unpreserved evidence is that it could have been tested and the results might
have helped the defense, the defendant must show that the police acted in bad
faith in losing or disposing of the material.
(Youngblood, supra, 488 U.S. at pp. 57–58;
People v. DePriest (2007) 42
Cal.4th 1, 42.) Negligent destruction of, or failure to preserve,
potentially exculpatory evidence, without evidence of bad faith, does not
violate due process. (Youngblood,
supra, 488 U.S. at p. 58.)
“The
presence or absence of bad faith by the police . . . must necessarily
turn on the police’s knowledge of the exculpatory value of the evidence at the
time it was lost or destroyed.†(
The trial court’s finding on the existence or nonexistence of bad faith
is reviewed under the substantial evidence standard. (People v. Velasco (2011) 194 Cal.App.4th
1258, 1262.)
The alleged
exculpatory value of the ballistic evidence was not apparent before it was
destroyed. Chavez, Rodriguez, and Dedios
all told the police that defendant shot Chavez as defendant stood outside the
front window. The police found two holes
in that window’s security screen with wires bent inward, consistent with shots
being fired into the house from outside that screen. Officers determined that a person inside the
room could see someone standing outside that window. As far as the record reveals, none of the
witnesses saw two people shooting.
Chavez did not mention seeing “two shadows†until she testified at
trial, which was nearly three years after the evidence was destroyed. The police had a statement from Contrereas
that he saw two men in the white car linked to defendant, but Contreras did not
see the shooting and apparently did not hear gunshots. His statement about seeing the passenger walk
down the street about 10 minutes after the driver walked down the street did
not tend to show that the passenger also fired shots or even went up to
Chavez’s home.
Indeed, the
alleged exculpatory value of the destroyed evidence is still not apparent. Defendant can only argue that the destroyed
ballistics evidence could have been tested and, assuming the fragments bore
sufficient lands and grooves, such testing might have established that the
bullet fragments and slug were fired from different guns. Given the highly speculative nature of this
theory, defendant was required to show that the police acted in bad faith in
disposing of the evidence. This he
failed to do. The trial court’s finding
that the LAPD did not act in bad faith is supported by substantial evidence,
including Matthews’s testimony regarding the reason for the destruction, his
lack of any involvement in this case, and his own negligence in ordering its
destruction, as well as the date of destruction, which was nine months prior to
defendant’s arrest. Accordingly, the
trial court did not err by denying defendant’s motion to dismiss.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We
concur:
CHANEY, J.
JOHNSON,
J.
