P. v. Ford

Filed 8/21/08 P. v. Ford CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez and Robert George Spitzer, Judges. Affirmed with directions.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant Larry Ford.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant Ricky Frederick.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants Ricky Frederick and Larry Ford were charged in the same information with the attempting carjacking of Maria Villalobos (Pen. Code,  664, 215, subd. (a)(1); count 1)^[1]and with forcibly resisting an executive officer, State Park Ranger and Peace Officer John Rowe, in the performance of his duty (Pen. Code,  69; count 3). Frederick was also charged with evading a law enforcement officer, Officer Rowe, while driving a motor vehicle in an unsafe manner. (Veh. Code,  2800.2; count 2.)

On July 18, 2005, the date the alleged offenses were committed, Frederick was 51 years old and Ford was 49 years old. The information also alleged that defendants each had two prior serious felony convictions ( 667, subd. (a)) and two prior strike convictions ( 667, subds. (c) & (e), 1170.12, subd. (c)(2)(A)). Frederick allegedly had one prison prior and Ford allegedly had seven prison priors. ( 667.5, subd. (b).)

Defendants were tried before the same jury. Following the Peoples case-in-chief, count 3, forcibly resisting an executive officer, was dismissed against Ford for insufficient evidence. ( 1118.1.) Ford was not charged in count 2, felony evading, but was found guilty as charged on count 1, attempted carjacking. Frederick was found guilty as charged on all three counts. In bifurcated trials on the prison priors and prior conviction allegations, the jury and the trial court, respectively, found Fords and Fredericks prior serious felony, prior strike, and prison prior allegations true.

At sentencing, the trial court declined to impose one-year terms on each of Fords seven prison priors, and sentenced him to 35 years to life, consisting of 25 years to life on count 1, plus five years for each of his two prior serious felony convictions. Frederick was sentenced to 36 years to life, consisting of 25 years to life on count 1, plus five years for each of his two prior serious felony convictions, plus one year for his prison prior. Concurrent terms were imposed but stayed on Fredericks convictions in counts 2 and 3. Defendants appeal.

II. DEFENDANTS CONTENTIONS ON APPEAL

Frederick raises a single contention on this appeal: that the trial court erroneously denied his Batson, Wheeler, and Miller-El^[2]motion for mistrial due to the prosecutors peremptory excusal of one Black female prospective juror, Ms. M. Ford joins this claim. Like Ms. M., Frederick and Ford are Black. We reject the claim for the reasons explained below.

Ford raises six contentions, and Frederick joins each of them. First, Ford claims there is insufficient evidence to support his conviction in count 1 for the attempted carjacking of Ms. Villalobos on an aiding and abetting theory. Second, he claims the trial court erroneously refused to exclude the testimony of Roy Penter, a prosecution witness, on the grounds that law enforcement officials at the state Parks and Recreation Department (Department) withheld potentially useful impeachment evidence regarding Mr. Penter from the defense, in bad faith. Third, he claims the trial court erroneously refused to instruct the jury on the defense of necessity in count 1. Fourth, he claims the trial court erroneously allowed the prosecution to read his alleged aliases to the jury and submitted a verdict form to the jury listing his numerous aliases. Fifth, he claims his abstract of judgment and sentencing minute order erroneously reflect that one-year terms were imposed and stayed on his seven prison priors. Sixth and finally, he asks that this court review the personnel records of Officer Rowe that the trial court reviewed in camera pursuant to defendants Pitchess^[3]motions, and independently determine whether the court properly concluded that none of the records were discoverable.

We agree that Fords abstract of judgment and the sentencing minute order must be amended to reflect that the court did not impose the one-year terms it initially indicated it would impose on his seven prison priors. We find Fords other claims without merit, and affirm the judgment against Ford in all other respects. We affirm the judgment against Frederick in its entirety.

III. THE EVIDENCE PRESENTED AT TRIAL

A. Background

Around 3:30 p.m. on July 18, 2005, Officer Rowe was driving his marked SUV patrol vehicle on Perris Boulevard in Perris. He stopped at a red light in the far right lane at the intersection of Perris Boulevard and the Ramona Expressway. Traffic was heavy. He heard the sound of car brakes screeching, looked into his left rearview mirror, and saw a car approaching the intersection. The driver of the car ran through the red light and fishtailed into the intersection, causing other drivers to swerve to avoid a collision. Using his public address system, Officer Rowe directed the driver of the car to back up and move out of the intersection.

Frederick was driving the car and Ford was riding in its front passenger seat with the window down. Ford turned and looked back at Officer Rowe as he was directing Frederick to move the car, but Frederick did not move the car. When the light turned green, Frederick turned left and cut off other motorists who were waiting in the left turn lane. Officer Rowe activated the red emergency lights and siren on his patrol vehicle, and pursued the car. Still, Frederick did not respond. Frederick drove around traffic, on the shoulder, and through red lights, again cutting off and endangering other motorists.

Officer Rowe radioed dispatch and requested additional units. He decided to discontinue his pursuit, however, when he was no longer able to keep pace with Fredericks car and believed it would be unsafe to continue the pursuit. Shortly after he decided to discontinue the pursuit, but before he turned off his lights and siren, he saw smoke as he was approaching the intersection of Markham Street and Webster Avenue. When he arrived at the intersection, he saw that Fredericks car had just collided with another vehicle.

Officer Rowes testimony concerning what happened next at the Markham Street intersection differed to varying extents from the testimony of two other prosecution witnesses, Ms. Villalobos and Mr. Penter. Because these differences are pertinent to some of Fords claims, we separately describe the testimony of Officer Rowe, Ms. Villalobos, and Mr. Penter below.

B. OfficerRowes Testimony

Officer Rowe testified that the car Frederick was driving had spun around during the collision and, when it came to a stop, was facing Officer Rowes patrol vehicle. As Officer Rowe approached the car in his patrol vehicle, defendants got out of the car and began running northbound on Webster Avenue. Officer Rowe began chasing defendants in his patrol vehicle, but they changed direction and ran in the opposite direction past Officer Rowes patrol vehicle. Officer Rowe then got out of his patrol vehicle and began chasing defendants on foot, repeatedly yelling, Police and Get on the ground. Defendants continued to run.

Officer Rowe caught up with defendants and tried to grab Fredericks left shoulder from behind. Frederick then turned around and assumed a fighting stance, with his fists closed, legs apart, and hands raised to his chest area. Frederick again refused Officer Rowes command to get on the ground, and Officer Rowe sprayed Frederick in the face with pepper spray. Ford, who was slightly ahead of Frederick, stopped and turned around to see what was happening. Officer Rowe also sprayed Ford with pepper spray.

The pepper spray did not subdue either Frederick or Ford, and both continued to run. Officer Rowe drew his handgun and ordered the men to stop. Again they continued to run, and Officer Rowe followed. In Officer Rowes experience, pepper spray usually subdues the average person who is not under the influence of drugs or alcohol. On a prior occasion, Officer Rowe witnessed the pepper spray not working on a suspect who was high on methamphetamine. That was the only time Officer Rowe had seen pepper spray fail to subdue a suspect.

Together, Frederick and Ford approached a Chevrolet minivan near the scene of the accident. Ms. Villalobos was driving the van and was stopped at the Markham Street intersection. Frederick got into the van through its front passenger door, not through its back sliding door. Then Ford, who was just behind Frederick, also entered the van through the front passenger door.

According to Officer Rowe, Ms. Villalobos appeared panic stricken when defendants entered the van. Frederick forced himself into the drivers seat, and pressed Ms. Villalobos against the door in an apparent effort to get her out of the van. At the same time, Ford sat on the interior edge of the drivers seat and reached over Frederick in an apparent effort to help Frederick push Ms. Villalobos out of the van.

Officer Rowe approached the van, holstered his weapon, and reached for the passenger door. As he did so, Ford lunged for the door lock, but Officer Rowe was able to open the door before Ford could lock it. Officer Rowe pulled out his baton and ordered Ford to get out of the van. Ford did not respond, so Officer Rowe hit him several times with his baton. Finally, Ford said, Okay, okay, got out of the van, and complied with Officer Rowes order to lie prone on the ground.

At that moment, according to Officer Rowe, Ms. Villalobos either fell or was pushed out of the van, and Frederick got into the drivers seat. Frederick tried to shift the transmission and the engine revved high. Officer Rowe ordered Frederick to stop and put his hands on his head, and repeatedly struck Frederick on the arm with his baton. One of the baton strikes deflected upward and hit Frederick in the head, causing him to bleed. Frederick removed his foot from the accelerator. Officer Rowe then ran around to the drivers side door and pulled Frederick from the van.

After Officer Rowe pulled Frederick from the van, he saw that Ford had gotten up and was running southbound. Mr. Penter, a bystander, ran up and offered to help Officer Rowe. Officer Rowe tossed Mr. Penter some handcuffs and told him to handcuff Frederick. As Mr. Penter was handcuffing Frederick, Officer Rowe ran after Ford, caught him, forced him to the ground, and handcuffed him.

C. Maria Villaloboss Testimony

Ms. Villalobos testified that she was driving her van home from work and stopped at the Markham Street intersection shortly before the collision involving Fredericks car and another vehicle. Shortly after the collision, Frederick and Ford got out of their car and a police car pulled up. The officer got out of his car and began spraying the two men with pepper spray and screaming at them to stop. Frederick and Ford were not running, but walking fast.

According to Ms. Villalobos, Frederick and Ford walked directly from their car to her van after the accident. They did not run in one direction, turn around, and run back toward the accident (as Officer Rowe testified). They were looking back at Officer Rowe as they were walking toward the van and as Officer Rowe was spraying them with pepper spray. Ms. Villalobos did not see either of the men stop and face Officer Rowe, assume a fighting stance, or raise their hands up toward Officer Rowe (as Officer Rowe testified).

The right, or passenger, side of the van was facing defendants. Frederick got into the van through the front passenger door. Meanwhile, Ford walked around the front of the van to the drivers side. Officer Rowe was following Ford. Both the drivers and passengers side windows were down, but Ms. Villalobos could not hear whether Ford was saying anything. Her attention was focused on Frederick, because he was inside the van. Frederick told Ms. Villalobos to [d]rive, drive, drive, but she refused. She shook her head no and shifted her van into neutral. She was frightened.

Through the open passengers side window, Officer Rowe sprayed Frederick with pepper spray and some of it got on Ms. Villaloboss right side. Ms. Villalobos opened the drivers side door and got out of the van, but she did not recall how she got out of the van. She walked across the street. From there, she saw Frederick get into the drivers seat and Ford get into the van through the passengers side door.

Through the open passengers side window, Officer Rowe was screaming at both men to get out of the van. Ford got out of the passengers side, walked toward the back of the van, and lay on the ground. Frederick got out of the van through the drivers side and ran, but Officer Rowe caught him and tackled him to the ground.

Ms. Villalobos did not recall whether Frederick pushed her out of the van or whether he ever touched her. Nor did she recall falling down as she got out of the van (as Officer Rowe testified). She said Frederick never sat in the drivers seat with her, and Ford did not get into the van until after she got out. Thus, she said, Ford never attempted to push her out of the van. She did not recall whether Officer Rowe had a baton.

D. RoyPenters Testimony

Mr. Penter witnessed the traffic collision at the Markham Street intersection. Shortly thereafter, Officer Rowe pulled up in his police vehicle, with its lights and siren activated, and got behind Fredericks car which had spun around during the collision. Frederick tried to take off in his car, but it was too badly damaged. Officer Rowe got out of his police vehicle and was yelling at defendants to stop and get out of their car. Defendants got out of their car and ran.

Mr. Penter watched as Officer Rowe pursued the men on foot and sprayed them with pepper spray during the chase. Like Ms. Villalobos, Mr. Penter did not see the men run in one direction then turn around. Nor did he see either of the men stop and assume a fighting stance or raise their hands to Officer Rowe. At one point during the chase, Mr. Penter did see that Officer Rowe drew his handgun, but then he put it away.

After the collision, but before Officer Rowe began chasing the two men, Ms. Villaloboss van approached the intersection and stopped. At that point, defendants were running in the direction of the van. From across the street, Mr. Penter saw Frederick and Ford open the passenger door of the van and saw both of them get into the van. Mr. Penter believed Ford got into the van first but recalled that Frederick was sitting closer to the driver. Mr. Penter could see Ms. Villaloboss face; she was panicking and both men were sitting next to her. From his position across the street, Mr. Penter could not see inside the van and could not see whether either Frederick or Ford was pushing Ms. Villalobos; however, he recalled that Frederick was trying to get into the drivers seat while Ms. Villalobos was still inside the van.

Finally, Ms. Villalobos was able to open her door and get out of the van. After Ms. Villalobos got out, Frederick got into the drivers seat. From the passengers side, Officer Rowe sprayed Frederick in the face with pepper spray. Officer Rowe then went around to the drivers side and pulled Frederick from the van. At that point, Mr. Penter ran over to help. Officer Rowe handed Mr. Penter a pair of handcuffs to handcuff Frederick. Meanwhile, Officer Rowe went over to Ford, who was on the ground outside the van, and handcuffed him. Mr. Penter did not see Ford get out of the van.

E. Additional Evidence

After Frederick and Ford were handcuffed, several additional state park rangers arrived and provided medical attention to defendants. Both were taken to a hospital. One officer, Ranger Norbert Ruhmke, recalled smelling alcohol on Frederick and Ford. Superintendent State Park Ranger Rafael Samuel spoke with Mr. Penter at the scene.

At the hospital, Rangers Samuel and Paxon took photographs of defendants and their injuries. Additional photographs of defendants were taken on July 23, 2005, five days after the July 18 collision and ensuing chase. Pursuant to a stipulation, the court admitted into evidence photographs of Frederick that were taken on July 23.

IV. DISCUSSION

A. DefendantsBatson, Wheeler, and Miller-El Motion Was Properly Denied

During jury selection, the prosecutor used a peremptory challenge to excuse Ms. M., a Black female prospective juror. Citing Batson, Wheeler, and Miller-El, counsel for Ford moved for a mistrial. Counsel for Frederick joined the motion. The trial court found that the defense made a prima facie case of racial discrimination, but denied the motion after the prosecutor explained he excused Ms. M. for several race-neutral reasons.

On this appeal, Frederick claims the mistrial motion was erroneously denied, and Ford joins this claim. Specifically, defendants argue that the prosecutors stated reasons for excusing Ms. M. were unsupported by the record for two reasons: (1) Ms. M. was not, as the prosecutor claimed, similarly situated with Ms. S., a non-Black prospective juror whom the prosecutor excused before he excused Ms. M., and (2) Ms. M. was similarly situated with four seated non-Black jurors whom the prosecutor did not challenge, namely, TRJ01, TRJ02, TRJ09, and TRJ12. Defendants also argue that the trial court failed to make a sincere and reasoned attempt to evaluate the genuineness of the prosecutors race-neutral reasons for excusing Ms. M.

In our discussion below we first address defendants argument that, contrary to the prosecutors claim, Ms. M. was not similarly situated to Ms. S. We find the argument without merit. Furthermore, the prosecutors additional, demeanor-based reasons for excusing Ms. M., namely, her guarded responses to some of the prosecutors questions and her alleged inattentiveness, were inherently plausible and not contradicted by the record. Thus, the trial court was not required to make detailed findings in denying defendants motion; its implicit finding that the prosecutor genuinely excused Ms. M. for race-neutral reasons was sufficient.

Next, we address defendants comparative analysis or Miller-El claim that the prosecutors race-neutral reasons for excusing Ms. M. were not genuine because Ms. M. was similarly situated to four seated jurors, TRJ01, TRJ02, TRJ09, and TRJ12. Defendants did not ask the trial court to conduct any comparative analysis at trial, including the comparative analysis they now raise on this appeal, even though Fords motion was expressly based in part on Miller-El. Nevertheless, we address defendants comparative analysis claim. We conclude that defendants have failed to meet their burden of showing that Ms. M. was excused on the basis of her race based on a comparative analysis of her responses and her characteristics to those of the four seated jurors, TRJ01, TRJ02, TRJ09, and TRJ12.

1. Relevant Background

Jury selection occurred over three days, July 17, 18, and 19, 2006. On the second day, the prosecutor used one of his peremptory challenges to excuse Ms. M. Based on that excusal, counsel for Ford made a motion for mistrial based on Batson, Wheeler, and Miller-El. Counsel for Ford noted that defendants were both Black and Ms. M. was the third Black prospective juror to be excused. The record shows that, at the time of the motion, two Black prospective jurors had been excused for cause. A third prospective Black juror, a male, was seated in the jury box as potential Juror No. 5 at the time of the motion and was eventually seated as Juror No. 5 or TRJ05.

Outside the presence of the jury, the court found that Ford had made a prima facie case of racial discrimination, based on the following: (1) there had been relatively few Black prospective jurors in the venire; (2) at the time Ms. M. was excused, she was one of only two Blacks seated in the panel; (3) after Ms. M. was seated in the panel, the prosecutor used at least 10 peremptory challenges to excuse other prospective jurors before he excused her; and (4) nothing stood out in the courts mind about Ms. M.s responses to questions that indicated she had a particular bias in the case.

In explaining why he excused Ms. M., the prosecutor first noted that Ms. M. had an ex-husband who was currently in custody and had a brother who had been convicted of driving under the influence. The prosecutor then noted that [w]hat stood out to him about Ms. M. was that she gave guarded responses to his follow-up questions to her about police brutality. Specifically, when counsel for Ford asked the prospective jurors to respond to the phrase police brutality, one prospective juror, Mr. C., said deserved. According to the prosecutor, Ms. M. turned around and looked at Mr. C. as if she thought he was crazy. Then the prosecutor said Ms. M. gave guarded responses to his follow-up questions.^[4]

The prosecutor also said he had been watching Ms. M.s demeanor throughout the course of these proceedings, and noticed she had been leaning on her head, arms, and side as if she were sleeping. He said other prospective jurors, including the Black male who was later seated as Juror No. 5, or TRJ05, were paying attention. At that point, the prosecutor said his grounds for excusing Ms. [M.] [were] the same as [his grounds for] excusing Ms. [S.], similar circumstances. He noted that Ms. S. also had an ex-husband who had previous incidents for domestic violence, although Ms. S.s husband had not been arrested. Finally, he noted that Ms. S. had also expressed disgust in response to the police brutality question. The prosecutor did not say that Ms. S. had been inattentive, however.

After the prosecutor explained his reasons for excusing Ms. M., the trial court denied the motion without further discussion and jury selection continued. Near the end of the second day of jury selection, counsel for Ford told the court he had not had an opportunity to respond to the prosecutors reasons for excusing Ms. M. and asked for an opportunity to do so on the record. Later, in chambers, counsel for Ford told the court that, contrary to the prosecutors impression, Ms. M. appeared to be paying attention to the proceedings whenever he had looked at her. In response, the court observed that the prosecutor had excused Ms. M. not only for her inattentive demeanor, but also for her personal history, family history, people that they were related to who are in prison as well as the answers to other questions posed by counsel.

Thereafter, and nearer to the end of the second day of jury selection, it was noted that one Black male prospective juror was seated in the jury box and that one Black female prospective juror was still in the venire. The Black male prospective juror was later seated as TRJ05.^[5]

Although counsel for Frederick expressly based his motion for mistrial in part on Miller-El, neither defense counsel asked the trial court to conduct a comparative analysis of Ms. M.s responses to questions and her characteristics with those of any of the seated jurors, or with any of the prospective jurors whom the prosecutor did not challenge.

2. Overview of Applicable LawBatson and Wheeler

A prosecutors use of peremptory challenges to strike prospective jurors on the basis of group biasthat is, bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar groundsviolates the state constitutional right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Stevens (2007) 41 Cal.4th 182, 192; Cal. Const., art. I,  16.) In Batson, the United States Supreme Court held that such practices also violate the defendants right to equal protection under the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 88; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.) It follows that [t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)

The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, 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.] Third, [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. [Citation.] (People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 1008-1009, citing Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 162 L.Ed. 2d 129].) It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. (People v. Roldan (2005) 35 Cal.4th 646, 701.) Thus, the ultimate burden of persuasion regarding racial motivation [or group bias] rests with, and never shifts from, the opponent of the strike. (Purkett v. Elem (1995) 514 U.S. 765, 768 [115 S.Ct. 1769, 131 L.Ed.2d 834].)

We review the trial courts ruling on purposeful racial discrimination for substantial evidence. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009.) We also ordinarily defer to the trial courts credibility determinations. (People v. Schmeck (2005) 37 Cal.4th 240, 275, citing Hernandez v. New York (1991) 500 U.S. 352, 365 [111 S.Ct. 1859, 114 L.Ed.2d 395] [best evidence of whether race-neutral explanation should be believed is often the demeanor of the attorney who exercises the challenge, and evaluation of the prosecutors state of mind based on demeanor and credibility lies peculiarly within a trial judges province] and Batson, supra, 476 U.S. at p. 98, fn. 21 [Since the trial judges findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference].) Indeed, because the trial court observes the demeanor of the attorney who exercises the challenge (Hernandez v. New York, supra, at p. 365), the trial court is in the best position to assess the attorneys credibility and accordingly distinguish bona fide reasons from sham excuses. (People v. Ledesma (2006) 39 Cal.4th 641, 677.)

Furthermore, [w]hen the prosecutors stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutors stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient. [Citation.] (People v.Stevens, supra, 41 Cal.4th at p. 193, quoting Silva, supra, 25 Cal.4th at p. 386.) In the latter event, the trial court is required to make a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. . . . (Ibid.)

3. Analysis of Alleged Batson/Wheeler Error

Frederick and Ford claim that the prosecutors race-neutral reasons for excusing Ms. M. are unsupported by the record because Ms. M. and Ms. S., a non-Black prospective juror whom the prosecutor also excused, were not similarly situated, as the prosecutor claimed. Thus, defendants argue, the prosecutors true reasons for excusing Ms. M. could not have been the same as his reasons for excusing Ms. S. In support of this argument, defendants point to several significant differences between Ms. M. and Ms. S. concerning their domestic violence experiences, incarcerated family members, responses to the police brutality question, and inattentiveness to the proceedings. As will appear, these purported differences between Ms. M. and Ms. S. are not as significant or material as defendants suggest.

We first observe that substantial evidence supports the prosecutors proffered race-neutral reasons for excusing Ms. M. Ms. M. had an ex-husband who was incarcerated at the time of trial for domestic violence against his current girlfriend, and a brother who had been convicted of driving under the influence. Having numerous family members with close contacts within the criminal justice system is a legitimate reason to dismiss a prospective juror, because it indicates that the prospective juror may be too sympathetic to the defense. (People v. Jordan (2006) 146 Cal.App.4th 232, 257-258, citing People v. Farnam (2002) 28 Cal.4th 107, 138 [close relatives adversary contact with the criminal justice system reasonable grounds for prosecutors challenge].) Thus, Ms. M.s personal and family history were sufficient reasons to excuse her.

Similarly, Ms. S. reported that her ex-husband had physically, emotionally, and verbally abused her, and she had reported the abuse to law enforcement [m]any times but [n]othing happened. She stated that [s]everal times she had the impression that law enforcement officials failed to do their jobs by the way they responded to her reports. Ms. S. also said her father had abused her mother and the abuse had been reported [s]everal times but, to her knowledge, nothing had been done about it. Thus, like Ms. M., Ms. S. had significant experience with the criminal justice system, indicating that she, too, may have been too sympathetic to the defense.

Defendants note that, unlike Ms. M., Ms. S.s ex-husband was never incarcerated for domestic violence and Ms. S. did not report having other family members who had been incarcerated. Defendants also point out that Ms. M. did not report having any negative experiences with the courts or law enforcement, while Ms. S. reported having both. Indeed, Ms. M. indicated that her ex-husband had been rightfully incarcerated, and said she had no reason to think her brother had been unfairly treated by law enforcement, while Ms. S. expressed bitterness at law enforcement for not doing its job in relation to her complaints about her ex-husband. Despite these differences, however, both Ms. S. and Ms. M. had significant exposure to the criminal justice system. And for this reason, the prosecutor could have reasonably inferred that both Ms. M. and Ms. S. would be sympathetic to the defense.

Defendants further argue that Ms. M. and Ms. S. showed different reactions to the police brutality question. They characterize Ms. M.s response as brief and restrained and temperate in tone, while describing Ms. S.s response as being forceful and emotional. Indeed, when counsel for Ford asked all of the prospective jurors to respond to the phrase police brutality, and before the prosecutor questioned Ms. M. about her response to Mr. C.s reaction to the question, Ms. M. stated: Police brutality, I think it happens. Maybe adrenaline going on with that. In response to the same question, Ms. S. said: Police brutality . . . the first thing that comes to mind is disgusted. What I have seen as police brutality disgusts me. And we all know its there. Its the potential, is [sic] always there.

We agree with defendants that the verbal responses of Ms. M. and Ms. S. to the police brutality question were not the same. Ms. M.s response was indeed tempered, while Ms. S. expressed outright disgust and hostility toward law enforcement. But in explaining his reasons for excusing Ms. M., the prosecutor said that [w]hat stood out to him was Ms. M.s very marked physical reaction to Mr. C.s statement that all police brutality was deserved, together with her guarded responses to his follow-up questions. (Italics added.) This reasonably indicated to the prosecutor that Ms. M., like Ms. S., may have been sympathetic to the defense.

Indeed, Ms. M.s very marked physical reaction to Mr. C.s comment was based on her demeanor, is not contradicted by the record, and was implicitly accepted by the trial court as credible and genuine. And [s]ince the trial court was in the best position to observe the prospective jurors demeanor and the manner in which the prosecutor exercised his peremptory challenges, the implied finding, that the prosecutors reasons for excusing [Ms. M.], including the demeanor-based reason, were sincere and genuine, is entitled to great deference on appeal. [Citations.] (People v. Reynoso (2003) 31 Cal.4th 903, 926 (Reynoso).)

Defendants next argue that the record is equivocal concerning whether Ms. M. was inattentive to the proceedings. As noted, the prosecutor said that one of his reasons for excusing Ms. M. was that her body language indicated she was not paying attention to the proceedings. Later, when counsel for Ford was given an opportunity to make a record, he said he had seen no sign that Ms. M. was being inattentive. The trial court did not offer its own observations on the matter, either in response to the prosecutors initial observation or counsel for Fords subsequent, contrary observation. Instead, the court noted that the prosecutors reasons for excusing Ms. M. went beyond body language and dealt with, personal history, family history, people that they were related to who are in prison as well as the answers to other questions posed by counsel.

On this cold record, this court is not in a position to discern whether Ms. M. was being inattentive to the proceedings. But even if, as defendants argue, the record is equivocal on this question, because the prosecutor and counsel for Ford had different opinions on the matter and the trial court did not comment on the matter, or even if Ms. M. was not being inattentive, defendants have not met their burden of showing that the prosecutor excused Ms. M. on the basis of her race.

As noted, the ultimate burden of persuasion regarding racial motivation [or group bias] rests with, and never shifts from, the opponent of the strike. (Purkett v. Elem, supra, 514 U.S. at p. 768.) And here, the trial court observed that the prosecutor had two genuine and race-neutral reasons for excusing Ms. M., in addition to her alleged inattentiveness. These were her potential bias against the prosecution as evidenced by her having an ex-husband who was incarcerated and a brother who had been convicted of driving under the influence, and her visceral reaction and subsequent guarded responses to the police brutality questions. These genuine, race-neutral reasons for excusing Ms. M. were sufficient to excuse her, notwithstanding whether she was also being inattentive to the proceedings.

Furthermore, the prosecutor mentioned Ms. M.s inattentiveness as his third and final reason for excusing her, after citing her close relationships to persons who had had negative experiences with law enforcement, and her visceral reaction and guarded responses to the prosecutors follow-up questions on the police brutality question. It thus appears that the prosecutor would have excused Ms. M. based on his first two reasons alone, that is, even if she had been attentive to the proceedings. Indeed, the trial court implicitly found this to be the case when it observed that the prosecutors reasons for excusing Ms. M. went beyond body language and dealt with, personal history, family history, people that they were related to who are in prison as well as the answers to other questions posed by counsel.

Lastly, defendants, relying on Silva, supra, 25 Cal.4th at page 386, argue that the trial court failed to make a sincere and reasoned attempt to evaluate the genuineness of the prosecutors stated reasons for excusing Ms. M. We disagree. The court in Silva acknowledged that [w]hen the prosecutors stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. (Ibid.)

As discussed, the prosecutors first reason for excusing Ms. M. was his impression that she would be sympathetic to the defense because she had an ex-husband who was incarcerated for domestic violence and a brother who had been convicted of driving under the influence. (People v. Jordan, supra, 146 Cal.App.4th at pp. 257-258, and cases cited [having family members with close contacts with the criminal justice system indicates potential bias against prosecution].) This reason for excusing Ms. M. was both inherently plausible and supported by the record. Accordingly, the trial court was not required to make detailed findings or even question the prosecutor concerning this stated reason. The trial courts implicit acceptance of the reason was sufficient.

Nor was the trial court required to make detailed, express findings to support its implicit finding that Ms. M.s visceral reaction to the police brutality question and her guarded responses to the prosecutors follow-up questions on that subject was a genuine, race-neutral reason for excusing her. This reason was neither inherently implausible nor contradicted by the record; therefore, the trial courts implicit finding that it was genuine is also entitled to great deference on appeal. (Reynoso, supra, 31 Cal.4th at p. 926.) Finally, it was unnecessary for the trial court to make findings concerning the prosecutors third and final reason for excusing Ms. M.her inattentivenessbecause, as the court indicated, the prosecutors first two proffered reasons for excusing Ms. M. were race-neutral and genuine.

4. Comparative AnalysisMiller-El

Lastly, defendants urge this court to conduct a comparative analysis, for the first time on appeal, of the prosecutors stated reasons for excusing Ms. M. with the responses and characteristics of four seated jurors, TRJ01, TRJ02, TRJ09, and TRJ12. Defendants argue that these four seated jurors were otherwise similar to Ms. M. Thus, they argue, the prosecutors stated reasons for excusing Ms. M. could not have been genuine, because if they were the prosecutor also would have excused TRJ01, TRJ02, TRJ09, and TRJ12. In support of this argument, defendants rely on Miller-El, supra, 545 U.S. at page 241, where the United States Supreme Court observed that [i]f a prosecutors proffered reason for striking a [B]lack panelist applies just as well to an otherwise-similar non[-B]lack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batsons third step.

After the parties filed their briefs on this appeal, the United States Supreme Court decided Snyder v. Louisiana (2008) 552 U.S. ___ [128 S.Ct. 1203, 1211; 170 L.Ed.2d 175] (Snyder). Thereafter, the California Supreme Court decided People v. Lenix (July 24, 2008, S148029) ___ Cal.4th ___ [2008 D.A.R. 11396] (Lenix). In Lenix, the state high court, following Miller-El and Snyder, held that California appellate courts must conduct a comparative analysis, for the first time on appeal, of a prosecutors stated reasons for excusing a juror with the responses and characteristics of other jurors, at least when the record of voir dire is sufficiently developed to permit a meaningful comparative analysis for the first time on appeal.

In Snyder, the high court reversed the defendants murder conviction based on Batson error, after conducting a comparative analysis for the first time on appeal. Although the court recognized that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial, in the case before it the court reasoned that the shared characteristic in issue, namely, concern about serving on the jury due to conflicting obligations, was thoroughly explored by the trial court when the relevant jurors asked to be excused for cause. (Snyder, supra, at p. 1211, fn. omitted.)

In Lenix, the state high court also recognized the limitations of conducting a comparative analysis for the first time on appeal. (Lenix, supra, ___ Cal.4th ___ [2008 D.A.R. 11396, 11403-11405].) Nevertheless, the court, following Miller-El and Snyder, reasoned that comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination. [Miller-El and Snyder] stand for the proposition that, as to claims of error at Wheeler/Batsons third stage, our former practice of declining to engage in comparative juror analysis for the first time on appeal unduly restricts review based on the entire record. . . . Thus, evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons. (Lenix, supra, [at pp. 11402-11403], fn. omitted.)

In their comparative analysis, defendants first point out that, like Ms. M., TRJ01 and TRJ09 were victims of violence. TRJ01, a female juror, reported being robbed at knifepoint in her car. The perpetrator was arrested and the case was resolved without a trial. TRJ09, a male juror, reported being abused by his father 15 years earlier. The father was arrested, but no charges were filed apparently due to the decision of TRJ09s family. TRJ09 also reported having his truck stolen.

Defendants also argue that TRJ01, TRJ02, TRJ09, and TRJ12 expressed responses to the police brutality question that were similar to Ms. M.s, or that were favorable to the defense. They say that, like Ms. M., TRJ01 and TRJ09 expressed even-handed or temperate responses, while TRJ02 expressed a response that was favorable to the defensethat is, that a person might reasonably flee arrest to avoid police brutalityand TRJ12 described police brutality as shameful. Thus, defendants argue, these four seated jurors expressed as much or more disapproval of police brutality as did Ms. M.

Finally, defendants observe that TRJ02 expressed unhappiness with the justice system in connection with an incident in which his brother was stabbed. TRJ02 said he was upset because the person who stabbed his brother had been allowed to enter into a plea bargain. He said his brother could have died but the person who stabbed him received only a 60-day sentence. Thus, defendants argue, TRJ02 was as likely to be biased against the prosecution as Ms. M.

Defendants comparative analysis fails to demonstrate that the prosecutor excused Ms. M. on the basis of her race. As the Lenix court observed, If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.] This same principle of appellate restraint applies in reviewing the circumstantial evidence supporting the trial courts factual findings in a Wheeler/Batson holding. (Lenix, supra, ___ Cal.4th ___ [2008 D.A.R. 11396, 11405].) In other words, the question is whether the trial courts finding that the prosecutors stated, race-neutral reasons for excusing Ms. M. was reasonable and supported by substantial evidence. (Id. [at p. 11405].)

For the reasons discussed, the trial courts conclusion that the prosecutor excused Ms. M. for race-neutral reasons is reasonable and supported by substantial evidence. None of the responses or apparent characteristics of the seated jurors whom defendants compare to Ms. M., namely, TRJ01, TRJ02, TRJ09, and TRJ12, undermine this conclusion, or demonstrate that the prosecutor excused Ms. M. on the basis of her race. It is also notable that the prosecutors acceptance of the panel, which contained one Black juror, namely, TRJ05, strongly suggests that race was not a motive in his challenge of Ms. M. (Lenix, supra, ___ Cal.4th ___ [2008 D.A.R. 11396, 11406], citing People v. Kelly (2007) 42 Cal.4th 763, 780 & People v. Cornwell (2005) 37 Cal.4th 50, 69-70.)

B. Substantial Evidence Supports Fords Attempted Carjacking Conviction

Ford was prosecuted as an aider and abettor to Fredericks attempted carjacking of Ms. Villalobos. Ford claims there is insufficient evidence that he aided and abetted Frederick in the commission of the crime. Specifically, he argues that Officer Rowes testimonythat both defendants were in the drivers seat of Ms. Villaloboss van, trying to push her out of the vanwas physically impossible and therefore insufficient to support his conviction. Ford also notes that Ms. Villalobos said he did not get into the van until after she got out, and Mr. Penter admitted he did not see what either defendant was doing inside the van. We conclude there is sufficient evidence to support Fords conviction as an aider and abettor to the attempted carjacking.

In addressing a challenge to the sufficiency of the evidence to support a criminal conviction, this court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1130.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 403.)

Carjacking is statutorily defined as the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence . . . against his or her will and with the intent to either permanently or temporarily deprive the person in possession . . . of his or her possession, accomplished by means of force or fear. ( 215, subd. (a); Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 1650.) The crime of attempted carjacking requires proof that the defendant intended to commit the offense of carjacking and engaged in a direct unequivocal overt act toward its commission. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861 [describing requirements of the analogous crime of attempted robbery];  21a.) And when, as here, the defendant is prosecuted as an aider and abettor, he or she must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.)

Officer Rowe testified that both Frederick and Ford entered the front passenger door of Ms. Villaloboss van and that both men attempted to push her out of the van. According to Officer Rowe, Frederick first entered the front passenger door of the van, and squished [Ms. Villalobos] over by sitting in the drivers seat . . . he was pushing her and trying to push her out of the van. [] . . . [] . . . Mr. Ford was right behind him. Both men were trying to force her out of the vehicle using their hands. Officer Rowe later clarified that part of Fredericks body was sitting in her seat as he was attempting to push her out of the van, while Ford was standing kind of crouched down . . . with his left leg on top of the drivers seat . . . . Ms. Villalobos was wedged up against the drivers side door being squeezed out, while Ford was reaching over Frederick, helping Frederick push Ms. Villalobos out of the van.

Ford argues that this court must reject Officer Rowes testimony because his description of what Ford was doing inside the van is physically impossible. Ford relies on the principle that the testimony of a single witness is sufficient to sustain a conviction, unless that testimony consists of physically impossible or inherently improbable assertions of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) In this regard, Ford argues, [t]here is simply no way Ms. Villalobos, Mr. Frederick, and Mr. Ford could have occupied the same seat in the van, even if Mr. Ford was only partially on the seat, as [Officer] Rowe testified. Ford also points out that Frederick was 5 feet 10 inches tall and weighed 250 pounds, while he, Ford, was 5 feet 8 inches tall and weighed 160 pounds.

We disagree with Fords characterization of Officer Rowes testimony. Officer Rowe did not say that Frederick and Ford were fully occupying the drivers seat of the van at the same time. Instead, Officer Rowe said that Frederick was partially in the drivers seat, Ms. Villalobos was wedged up against the drivers door, and Ford had his left leg over the drivers seat as he was reaching over Frederick and helping Frederick push Ms. Villalobos out of the van. Properly understood, Officer Rowes testimony did not describe a physically impossible factual scenario.

Officer Rowes testimony is sufficient to support Fords conviction for aiding and abetting Fredericks attempted carjacking of Ms. Villalobos. In addition, Mr. Penter testified that both defendants entered the van at the same time and that both were in the front seat area of the van while Ms. Villalobos was attempting to get out. And, although Ms. Villalobos testified that Ford did not get into the van until after she got out, the jury could have reasonably inferred that Ms. Villalobos was mistaken and in the heat of the moment simply did not see that Ford was in the van with Frederick. Indeed, she did not recall how she got out of the van. Finally, even if Ford did not reach over Frederick and attempt to push Ms. Villalobos out of the van, Fords act of getting into the van with Frederick while Ms. Villalobos was either in the van or in the vicinity of the van, encouraged and therefore aided and abetted Frederick in the commission of the crime.

C. The Trial Court Properly Refused to Instruct the Jury on the Defense of Necessity

Ford next claims the trial court prejudicially erred in refusing to instruct the jury on the defense of necessity to the attempted carjacking charge, on the ground substantial evidence showed he got into the van in order to escape the continuous beating by [Officer] Rowe and not to aid and abet Fredericks attempted carjacking of Ms. Villalobos. We conclude the instruction was properly refused because the evidence did not support it.

To justify an instruction on the defense of necessity, there must be evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.) Counsel for Ford asked the trial court to give CALCRIM No. 3403 (Necessity). The trial court refused on the ground there was insufficient evidence to support all six elements of the defense. The trial court was correct.

Indeed, there was no evidence that Ford lacked an adequate or reasonable legal alternative to getting into the van. Instead of getting into the van, Ford could have complied with Officer Rowes direction to stop and get on the ground. Or, Ford could have stayed in Fredericks car after the accident. Instead, he attempted to flee from the scene with Frederick. Officer Rowe did not spray Ford with pepper spray until after Ford attempted to flee with Frederick. Thus, Ford was not justified in getting into the van.

Furthermore, getting into the van created a greater danger than the danger to be avoided, because getting into the van placed Ms. Villalobos in fear and could have caused her injury when she got out of the van. Ford also substantially contributed to the emergency that he claims necessitated his getting into the van, that is, Officer Rowe spraying him with pepper spray, because he first attempted to flee and then refused to comply with Officer Rowes directions to stop, causing Officer Rowe to try to stop him with pepper spray. (See, e.g., People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 [finding insufficient evidence to support several elements of necessity defense, including the absence of a reasonable legal alternative to committing the charged crime].)

Ford argues that Ms. Villaloboss testimony, standing alone, was sufficient to support the necessity instruction. We disagree. Ms. Villaloboss testimony was insufficient to support the necessity instruction because it did not establish that Ford had no reasonable legal alternative to getting into the van. (People v. Kearns, supra, 55 Cal.App.4th at p. 1135.) Even under Ms. Villaloboss version of events, defendants got out of Fredericks car and attempted to flee from the scene as Officer Rowe arrived at the intersection. Ford refused to comply with Officer Rowes demands to stop, both as he was walking fast toward Ms. Villaloboss van and as he was walking around the van trying to get away from Officer Rowe. Officer Rowe did not spray Ford with pepper spray until after Ford attempted to flee.

D. The Trial Court Erred in Reading Fords Aliases to the Jury and in Including the Aliases on Fords Verdict Forms, But the Error Was Harmless

The caption of the original information charged Ford under the name Larry Ford and listed 13 aliases or names Ford was also known as. Most, but not all, of the aliases were variations on the name Larry Ford: Jeffrey Bernard Ford, Lawrence Ford, William Ford, Oscar Ford, Lance Moore, Lance Brown, William Oscar Ford, Oscar Gary, Carl Douglas Ford, Jeerey Bernard Ford, Gary Lamar Ford, Larry Lamar Ford, and Larry Douglas Ford. Shortly before trial, an amended information was filed listing 10 of the original 13 aliases.

At Fords arraignment on the amended information, the trial court asked Ford to state his true name. Ford refused to answer the courts question on the advice of his counsel. The court then held Ford in contempt for refusing to state his true name. Thereafter, on the first day of jury selection, and at the direction of the trial court and over Fords objection, the clerk read 10 of Fords aliases to the jury when calling the case. In addition, the verdict forms used in Fords jury trial on the attempted carjacking charge and in the bifurcated jury trial on the prior allegations listed all 13 aliases, both in their captions and in their statements of the verdict and findings.

On this appeal, Ford claims the trial court prejudicially erred in having the clerk read his aliases to the jury and in including his aliases on his verdict forms. We agree that the trial court erred, but we conclude the error was harmless. As we explain, there is no reasonable probability that the reading of the aliases to the jury or the inclusion of the aliases in any of the verdict forms affected the jurys guilty verdict against Ford on his sole conviction in count 1 for attempted carjacking. Nor is there a reasonable probability that the inclusion of the aliases on the verdict forms in the bifurcated trial affected the jurys true findings on the prior allegations.

1. Additional Background

At the arraignment on the amended information and before jury selection began, the trial court told Ford it would hold him in contempt if he did not answer the courts question concerning his true name. Fords trial counsel, Addison Steele, argued that Ford had a Fifth Amendment right to remain silent and to proceed as charged in the information under section 989. As noted, Ford refused to answer the courts question and was held in contempt. Thereafter, Riverside County Public Defender Gary Windom and Supervising Deputy Public Defender Richard Blumenfeld appeared in court on behalf of Ford.

An open court discussion ensued, in the presence of the prosecutor, between the trial court and Attorneys Steele, Blumenfeld, and Windom. The discussion focused upon whether Ford had a constitutional right to remain silent or whether