P. v. Chester

Filed 5/7/07 P. v. Chester CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

A jury convicted appellant Dale Lamar Chester of one count of resisting an executive officer (Pen. Code,  69),[1] one count of transporting a controlled substance (Health & Saf. Code,  11352, subd. (a)), one count of possessing a controlled substance (Health & Saf. Code,  11350, subd. (a)), and one count of being under the influence of a controlled substance (Health & Saf. Code,  11550, subd. (a)). The jury was unable to reach a verdict on an additional count of resisting an executive officer. He pled guilty to one charge of child annoyance ( 647.6, subd. (a)) and admitted a prior conviction allegation ( 667, subds. (c)(1), (e)(1), 1170.12, subds. (a)(1), (c)(1)).

Chester was sentenced to the upper term of seven years four months in state prison. Restitution and parole revocation fines were imposed and suspended. He was given 97 days of presentence custody and conduct credit.

On appeal, Chester asserts Batson/Wheeler error,[2] ineffective assistance of counsel, and lack of substantial evidence to support his conviction for resisting an executive officer and transporting a controlled substance. Chester also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel and challenging partial denial of his Pitchess motion.[3] At Chester's request, we consider the petition with the appeal. We affirm the judgment. We deny the petition by separate order.

FACTS AND PROCEDURAL HISTORY

Prosecution Evidence

In the afternoon of January 14, 2005, while driving down a street in Port Hueneme, Chester made several attempts to stop and talk to a 16-year-old female, Gemma G., while she was walking home from school with her sister. Chester told the girl he was drunk and needed help. Gemma told him to go away, but he continued to follow her and talk to her from his truck. He offered her money. Chester continued to follow her until she went to a neighbor's home for help and the police were called.

Officer Michel responded to the call and, after a short search of the area, found Chester's truck in a nearby parking lot. Michel approached the truck and asked Chester for his license and registration. Michel conducted a records check and found that Chester had an outstanding misdemeanor warrant. Sergeant Freiberg arrived in response to Michel's call for assistance.

Michel informed Chester he was being placed under arrest for a misdemeanor warrant and asked him to step out of the truck and lace his fingers behind his back. Chester complied. While Michel was attempting to handcuff him, Chester attempted to spread his arms and elbows apart. The officers told Chester several times to relax and stop resisting. When he continued to resist, Michel and Freiberg attempted to put a control hold on him. Chester broke free and began swinging his arms and elbows, striking Freiberg on the chest and neck and striking Michel on the upper body several times with his elbows and his fists. Chester is approximately six feet tall, weighed 220 pounds and was substantially larger than either Michel or Freiberg.

Chester turned away from the officers, reached into his pocket and pulled out a baggie containing a white substance. He leaned into his truck and discarded the baggie. As the officers attempted to pull Chester away from the truck, he faced the officers, swung at both of them with closed fists and elbows, and struck both of them in the chest area.

Michel and Freiberg again tried, unsuccessfully, to put a control hold on Chester. Chester stepped back, faced Freiberg and struck him. At this time, Michel called for additional backup. Chester broke away from the officers and ran away. The officers began chasing him. While Michel continued to chase Chester on foot, Freiberg returned to his patrol car and followed Chester in his vehicle.

Chester finally stopped running and faced Michel. Michel drew his gun and told Chester repeatedly to stop approaching him, put his hands up and lie on the ground. Chester did not comply with Michel's commands. Instead, Chester began running again. Michel reholstered his gun and chased him through a pathway at the rear of a residence at 1111 Evergreen Lane. Chester's flight was stopped by a wall at the end of the pathway. He faced the wall and put both hands in his pockets. Michel told Chester to put his hands up. Chester did not comply and began walking toward Michel. Michel again told Chester to stop and put his hands up. Chester did not comply.

Chester swung his fist and struck Michel on the right cheek, upper body, chest and neck. Michel tried to stop the blows and hit Chester on the back. As Michel began to draw his weapon, Chester struck him three or four more times and Michel struck back. Chester then stepped back to the wall.

Michel drew his gun. Chester put both hands in his pockets and pulled out a piece of foil in the shape of a pipe and a lighter. Chester lit the foil pipe and smoked the substance in the foil. Freiberg arrived, ran up to Chester and performed a "distraction strike" on the left side of Chester's temple. The foil pipe was knocked out of Chester's mouth.

Chester began striking Freiberg. Michel continued to tell Chester to get on the ground and stop resisting. Michel struck Chester with his baton on his right and left clavicles. The blows from the baton had no effect on Chester. Chester continued to hit and kick Freiberg. Michel's baton hit Chester on the head when Chester suddenly jerked his head forward. Finally, Chester complied and lay face down on the ground with his hands extended.

A resident at 1111 Evergreen Lane testified he heard his dogs barking at approximately 3:30 p.m. He went to the back door and heard a scuffle. He saw a plastic baggie come over the wall into his yard. The baggie contained a white rock-like substance. That evening, he took the baggie to the Port Hueneme police department and gave it to Michel.

Ventura County Sheriff's Detective Macias worked in the Special Services Narcotics Bureau. Macias testified that Chester's foil pipe was commonly used to smoke crack cocaine. Macias stated that a person under the influence of cocaine will have an elevated heart rate, sweat profusely, and display increased aggression. A person under the influence will also have an increased tolerance for pain.

At trial, the parties stipulated to the following facts: The substance recovered from the front seat of Chester's truck was 1.24 grams of cocaine. The baggie that came over the wall contained 2.44 grams of cocaine. Chester's urine was tested after his arrest and contained marijuana and cocaine.

Defense Evidence

Chester testified in his own defense. He said he previously had been convicted of felonies, including convictions for being under the influence of a controlled substance, possession of cocaine and possession of marijuana.

In the afternoon of January 14, 2005, Chester was driving down Evergreen Street to Bubbling Springs Park. He had smoked crack cocaine earlier that day and was under the influence of cocaine. He also had used marijuana. He began following Gemma G. and asked her to come over to his truck. The girl complied. He had a conversation with her and gave her $5 to buy candy for her sister. He then drove to the park to meet a friend, Joe Alan. Alan arrived at the park seconds after Chester. Alan gave Chester between two and three grams of crack cocaine. Alan exited Chester's truck and left the park in his own vehicle.

Officer Michel arrived and asked Chester for his identification. About five minutes later, Michel told Chester that he had a warrant for his arrest. At this time, Sergeant Freiberg arrived. Michel told Chester that he was under arrest and to exit the vehicle. Chester complied. Michel told Chester to turn around and put his hands behind his back. Chester complied. Michel told Chester to interlace his hands. Chester complied.

Michel put his hands on Chester's hands. Chester felt pain and told Michel that he was hurting him. Michel lifted Chester's arms up and added more pressure. Chester felt more pain in his arms, shoulders and back. He again told Michel that he was hurting him. The more Chester said he was hurt, the more pressure Michel applied.

Chester became afraid and broke Michel's hold. The officers pushed him forward into the cab of his truck. He did not swing his elbows. He felt his right hand pulled behind his back. He pushed backwards to break the hold. He was in pain and yelled, "You're hurting me." He then broke free.

Chester was apprehended again and felt hands going around his waist and shoulders. He reached into his pocket and pulled out the drugs that Alan had given him. One of the officers grabbed his hand with the drugs in it. The bag tore open and the drugs went all over the truck. Chester was pulled out of the cab and pushed forward into the truck. The officers were holding his hands at the time. Chester turned around and ran because he was afraid of the officers.

Chester ran into the park. Michel chased him. He turned right on Evergreen and went into a backyard. When he slowed to a walk, Michel told Chester to get down on the ground. Chester did not comply because he was afraid. He moved away from Michel toward the street and stopped at a wall. He did not pull out his pipe and smoke it.

Michel told Chester to get down three times and pulled out his gun. Chester was afraid that he might get shot so he got down. As he was going down, he felt a blow to his head. The next thing he remembered was waking up in a hospital with his whole body hurting.

Chester did not recall being hit with a baton. He denied throwing cocaine over a wall or possessing cocaine when he was driving around and talking to Gemma.

Oxnard Police Officer Boswell testified he responded to the scene where Chester was taken into custody. Boswell saw Chester lying down between the wall and detached garage. Boswell said Chester may have been unconscious. Chester was breathing and lying still but did not respond to any questions or commands. He did not say anything or move as he was being pulled. As Chester was being handcuffed, Boswell saw Chester's eyelids flutter. Boswell pulled Chester out of the area by his feet.

DISCUSSION

1. The Trial Court's Denial of the Batson/Wheeler Motion Was Not Error

The rules governing the consideration of Batson/Wheeler motions are well established. The exercise of peremptory challenges to exclude members of an identifiable group of citizens on racial grounds violates the equal protection clause of the federal Constitution (Batson v. Kentucky, supra, 476 U.S. at p. 89) and violates a defendant's right to trial by a jury drawn from a representative cross-section of the community under the California Constitution (People v. Wheeler, supra, 22 Cal.3d at p. 280).

Peremptory challenges are presumed to have been exercised for a constitutionally permitted purpose. (People v. Williams (2000) 78 Cal.App.4th 1118, 1125.) To overcome the rebuttable presumption of validity, a defendant who objects to the prosecution's use of a peremptory challenge must initially make a prima facie case demonstrating "'that the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" (Johnson v. California (2005) 545 U.S. 162, 168.)

Once the defendant has made out a prima facie case, the "'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] '[I]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.'" (Johnson v. California, supra, 545 U.S. at p. 168.)

In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, "the trial court 'must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . ."'" (People v. Reynoso (2003) 31 Cal.4th 903, 919.)

We review Wheeler rulings with great deference because the trial court observes the proceedings and personally knows the local conditions and prosecutors. (People v. Catlin (2001) 26 Cal.4th 81, 117; People v. Box (2000) 23 Cal.4th 1153, 1189-1190.)

The prosecution exercised a peremptory challenge against the only African-American juror in the venire, Ms. Chinn. Chester made a Wheeler objection. The trial court found Chester made a prima facie case, but denied the motion, stating the prosecution had provided a race-neutral explanation for the peremptory challenge.

On voir dire, Chinn stated that, several years ago, she and her husband, who also is black, were confronted by a police officer while they were sitting in their car doing nothing wrong. The officer demanded to see her husband's driver's license. After he ran a records check, he threw it back in the car and walked away without another word. Chinn speculated that the officer suspected they had stolen the car because the license plate on the car was "CHINN," a name most often associated with persons of Chinese descent. Chinn believed they had been discriminated against because of their race. However, she stated that the incident of racial discrimination she experienced years ago would "absolutely" not affect her view of the evidence in this case.

In response to Chester's Wheeler motion, the prosecutor stated he was excusing Chinn because she had experienced, or believed she had experienced, racial discrimination by a police officer. The prosecutor stated Chinn's skin color was irrelevant and he would have exercised a peremptory challenge "against any person, regardless of skin color, in the facts of this case."

Chester asserts the trial court erred in finding the prosecutor's motive for excusing Chinn race-neutral because the prosecutor's discriminatory motive was inherent in the explanation offered by the prosecutor. He argues that the reason given by the prosecution would exclude "practically every black person in America," because "[p]ractically no black person . . . is immune from the vestiges of slavery, segregation, and de facto discrimination."

This argument is without merit. Simply because the excused juror is the same race as the defendant is insufficient to show racial bias. (People v. Box, supra, 23 Cal.4th at p. 1189.) The prosecutor explained that he would have excused any prospective juror, regardless of race, if she had indicated she had been the victim of racial bias by a police officer. The prosecutor's reasons for exercising the peremptory challenge were genuine, specific, and supported by the record. (People v. Alvarez (1996) 14 Cal.4th 155, 197-198.) We defer to the trial court's finding that the prosecution provided a race-neutral justification for excusing Chinn.

Chester also argues that racial bias is shown because the prosecutor did not challenge two non-black jurors who gave "seemingly pro-defense answers during voir dire." (Italics omitted.) He argues that comparative analysis is proper because the court must consider the entire record of voir dire. (People v. Box, supra, 23 Cal.4th at p. 1188.) The argument is without merit.

Two recent cases from our Supreme Court have clarified that where a single black juror is subject to a peremptory challenge, comparative analysis is improper. In People v. Williams (2007) 40 Cal.4th 287, 313, the court said: "[W]hen as here there is a legitimate basis for dismissing the prospective juror and no pattern of discrimination appears as to Black jurors, a court should be hesitant to infer a Wheeler/Batson violation when comparative analysis raises questions as to a single prospective juror, particularly 'given the legitimate role that subjective factors may have in a prosecutor's decision' to challenge or not challenge jurors peremptorily."

Similarly, in People v. Bell (2007) 40 Cal.4th 582, 597-598, the court said: "While the prosecutor did excuse two out of three members of this group, . . . the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. '[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.'"

Chester argues for the first time in his reply brief that the trial court did not find that the prosecutor had provided a race-neutral reason for challenging Chinn. Arguments made for the first time in a reply brief ordinarily are not considered. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) Furthermore, the argument is without merit. "[T]he 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." (People v. Reynoso, supra, 31 Cal.4th at p. 919.) "Inquiry by the trial court is not even required." (People v. Stanley (2006) 39 Cal.4th 913, 936.) "'"All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory."'" (Ibid.)

2. Ineffective Assistance of Counsel Claims

"A claim of ineffective assistance of counsel presents a mixed question of fact and law which is generally subject to de novo review, especially where constitutional rights are implicated. . . . [] In reviewing an effective assistance of counsel claim, courts do not generally second guess counsel's tactical decisions. [Citations.] 'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess . . . counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."'" (In re Alcox (2006) 137 Cal.App.4th 657, 664-665.)

A. Failure of Defense Counsel to Exercise a For-Cause

Or Peremptory Challenge to Juror No. 6

Chester argues defense counsel provided ineffective representation because he did not excuse Juror No. 6. He contends that on voir dire, Juror No. 6 admitted knowing the two police officers involved in the case and indicated he had a favorable impression of them. Chester misstates the record. Juror No. 6 did not say he knew the police officers. He stated he had heard the officers' names and was familiar with them because he worked for the Port Hueneme School District. The juror also said that his familiarity with the officers would not affect his judgment in this case.

Even if Chester's argument were meritorious, he has failed to show how the outcome of the trial would have been different had Juror No. 6 been excused. (Strickland v. Washington (1984) 466 U.S. 668, 694 [prejudice requires a "reasonable probability" that competent performance would have led to a different result].) "Prejudice is not presumed. Defendant must show that counsel's deficient performance '"so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."'" (In re Alcox, supra, 137 Cal.App.4th at p. 665.) Defense counsel was not ineffective for allowing Juror No. 6 to remain on the jury.

B. Failure of Defense Counsel to Prevent the Jury from Hearing

Evidence of Chester's Interaction with Gemma

Chester asserts defense counsel was ineffective because during his opening statement, counsel said that Chester "scared" Gemma and that he "feels bad about that." Counsel also conceded that Chester acted "inappropriately" regarding the child.

Chester argues that mention of Gemma was not required to present his defense because he had pleaded guilty to the charge of child annoyance prior to trial and any crime against a minor is highly stigmatizing. Defense counsel's reference to Gemma appears to have been an attempt to soften the impact of the prosecution's remarks concerning these facts. (See People v. Farnam (2002) 28 Cal.4th 107, 148 ["'"Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts"'"].) As we stated recently in In re Alcox, supra, 137 Cal.App.4th at page 668: "It is not ineffective assistance of counsel for counsel to admit obvious weaknesses in the defense case. . . . '"[G]ood trial tactics [may] demand[] complete candor" with the jury.'"

3. Substantial Evidence Claims

"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Bolden (2002) 29 Cal.4th 515, 553.)

We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) "The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)

A. Substantial Evidence Supports Chester's Conviction

for Resisting an Executive Officer

Chester asserts there was insufficient evidence to convict him of resisting an executive officer. We disagree.

Section 69 punishes any person "who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty."

The People must prove, as an element of the offense, that the officer was engaged in the lawful performance of his or her duties when the resistance by the defendant was offered. (In re Manuel G. (1997) 16 Cal.4th 805, 816-818.) While a police officer is entitled to use reasonable force to make an arrest, he exceeds the scope of his duties if he uses excessive force. (People v. Hood (1969) 1 Cal.3d 444, 450-451; People v. Olguin (1981) 119 Cal.App.3d 39, 46-47.) If an officer uses excessive force, a suspect who defends himself with reasonable force is not guilty of any crime. (Olguin, at p. 47.)

Chester admitted at trial that he had an outstanding warrant and was in possession of illegal drugs at the time he was arrested. Thus, there can be no argument that the officers were performing their lawful duty when he was arrested.

Chester's contention that the officers used excessive force when arresting him is contrary to the record. He admitted he struggled with the officers when they tried to put a control hold on him, broke free and began to run. He admitted he did not comply with the officers' commands to put his hands up and lie on the ground. The officers' escalation of force was in response to Chester's lack of compliance with the officers' commands and his escalation of force in his attempts to break free. There is substantial evidence from which the jury could find that Chester knowingly and unlawfully resisted the officers from performing their duties.

B. Substantial Evidence Supports Chester's Conviction

for Transporting a Controlled Substance

Chester contends he was wrongfully convicted of transporting a controlled substance.

Carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character establishes transportation of a controlled substance. (Health & Saf. Code, 11379, subd. (a); People v. Rogers(1971) 5 Cal.3d 129, 133-134; People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) The crime may be established by circumstantial evidence and any reasonable inferences drawn from that evidence. (Meza, at p. 1746.)

The testimony of the police officers that Chester had cocaine on his person during the pursuit was corroborated by the testimony of Jason Vinson, a disinterested third party whose house was adjacent to the pathway where Chester was finally restrained, that a baggie containing the drug was thrown over the fence into his yard. (See, e.g., People v. Ormiston (2003) 105 Cal.App.4th 676, 683 [inclusion of walking within the statutory definition of "transport" is consistent with the purposes of the statute].) The only evidence that Chester was not carrying cocaine on his person during his attempt to flee was his own testimony. Chester asks us to do what we may notreweigh the evidence and make credibility determinations.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Kevin McGee, Judge

Superior Court County of Ventura

______________________________

Stratton S. Barbee for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

[1] All further statutory references are to the Penal Code unless otherwise specified.

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

[3] Pitchess v. Superior Court (1974) 11 Cal.3d 531.