P. v. Norton
Filed 6/21/12
P. v. Norton CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff
and Respondent, A130569
v. (
Mateo
Super.
Ct.
SC062872A)
NORTON,
Defendant
and Appellant.
__________________________________/
Quincy Dean Norton (appellant)
appeals from a judgment entered after a jury convicted him of
because (1) the trial court erred when it prevented him from presenting
evidence concerning the prior misconduct of a third-party culpability suspect,
(2) the court erred when it admitted evidence of his own prior
admitted expert evidence about intimate partner battering syndrome and its
effects, (4) the court erred when it denied his pretrial motion under
first degree murder is not supported by substantial
evidence. We conclude the trial
court did not commit any prejudicial errors and will affirm.
>
I.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of murdering
his wife Tamika Mack.
name="_ftnref1" title="">[1]
Appellant met Tamika in 1996. They
had a child, Quincy, Jr. in 1997 and started to live together. Although some aspects of the relationship
were good, there were periods when appellant and Tamika would separate and
appellant would move out. Appellant also
had a girlfriend, Donisha Day, that caused Tamika concern. According to Tamika’s sister Nicole,
appellant and Tamika’s relationship followed a familiar pattern. Tamika would get fed up and decide to end the
relationship. Appellant would then
promise to be better and would “work his way back into her good graces[.]†Tamika would stay with appellant because she
“loved him.â€
Whatever problems appellant and
Tamika had, the relationship continued.
Appellant and Tamika had another child, Deon, in 1998, and they married
in 2004. In 2005, appellant and Tamika
had a daughter named Jasmine.
Things finally came to a head on June 29,
2006. Tamika frantically called her mother Charlene
and told her appellant was so intoxicated he could not walk or stand. She said appellant accused her of cheating
and threatened to take Jasmine away from her.
Tamika was afraid because appellant was screaming and yelling. Charlene called the police. Appellant then left.
Tamika decided to divorce appellant
after the incident. On July 12,
2006, she hired a
document service to prepare divorce papers which she signed. But Tamika did not serve the papers.
Appellant stopped living with Tamika
after the June 29, 2006 incident, but he still came to her house to
help with the children. Tamika continued
to spend time with appellant because she wanted the divorce to be
amicable.
On the evening of July 21,
2006, Tamika and her
children were at a friend’s house when Tamika began to receive calls from
appellant demanding to know where she was.
Tamika told appellant repeatedly she was at a friend’s house.
That same evening Tamika and her
children went to her mother Charlene’s house.
A friend of Tamika’s had died recently and Tamika and Charlene made
plans to attend her funeral the following day, July 22, 2006. Tamika
and her children drove home around 11:00 p.m.
Quincy, Jr. was awakened early the
next morning by his mother screaming his and his brother’s names. It sounded as though his mother was
scared. Quincy, Jr. got out of bed, went
to the doorway of his parent’s bedroom, and looked inside. He saw his mother on the bed with appellant
standing over her and holding her down by her wrists. She looked at Quincy, Jr. but did not say anything. Quincy, Jr. became upset. He cried because he was scared. Appellant calmly told him to go back to bed.
Quincy, Jr. returned to his
bedroom. He then heard banging or
thumping noises. It sounded like objects
being moved. Sometime later, appellant
came to Quincy, Jr.’s room and told him to get dressed. His father seemed “calm†at the time.
Quincy, Jr.’s brother Deon had a
very similar experience that day. He
awoke near dawn and began to watch television.
At one point he heard his parents arguing in their bedroom. Appellant was using profanities like “fuckâ€
and “bitch.†Deon then heard his mother
scream out his and his brother’s names.
She sounded scared. Deon stepped
into the hallway and saw his brother Quincy, Jr. staring into his parent’s
bedroom. Appellant then closed the
bedroom door. When Quincy, Jr. tried to
open the door, Deon heard it being locked from the inside.
Deon went back to his bedroom. A few minutes later, the “arguing†stopped
and Deon heard “bumping and thumping†which sounded like someone falling to the
floor.
Appellant came to Deon’s room a few
minutes later and told him to get dressed.
Appellant had a balled up T-shirt in his hands. Deon got dressed and went into the
hallway. He asked appellant whether he
could use the bathroom in the his parents’ bedroom. Appellant said no and told Deon to get into
the car in the garage.
Appellant, Quincy, Jr., Deon, and
Jasmine got into Tamika’s car and drove away.
After a few stops, appellant went to a relative’s house where he dropped
the children off.
Meanwhile, Tamika’s mother Charlene
was becoming concerned. She had called
Tamika around 6:30 a.m. but had gotten no answer. This was unusual because Tamika always
answered her phone. Charlene then called
appellant’s cell phone around 7:40 a.m.
When appellant answered, Charlene asked if he knew where Tamika
was. Appellant said Tamika was at home
and that he was on the way there himself.
He did not mention where his children were.
Charlene went to Tamika’s
house. No one answered the door. Charlene then tried to call appellant several
times. He did not answer.
Charlene went to the funeral, hoping
to see Tamika there. When that did not
happen, she asked a friend to call the police.
Police officers responding to the
call found Tamika’s body on the floor of her master bedroom, adjacent to the bed,
in a large pool of blood. An autopsy
performed the next day showed that Tamika died from multiple stab wounds to her
neck and torso. Multiple cuts on
Tamika’s hands appeared to be defensive wounds that were consistent with a
struggle. There were no signs of a
sexual assault.
Based on these facts, an information
was filed charging appellant with first degree murder. (Pen. Code, §§ 187, 189.) The information also alleged appellant had
personally used a deadly weapon when committing the crime. (Pen. Code, § 12022, subd. (b).)
The case proceeded to trial where a
jury convicted appellant as charged. But
the court then granted appellant a new trial.
A new trial was conducted at which
the prosecution presented the evidence we have set forth above. The prosecution buttressed its case with
evidence that appellant had a long history of abusing Tamika physically. The prosecution also presented evidence from
an expert on domestic violence who stated it is common for a woman who is
abused not to leave her batterer because she loves him and thinks she can
handle him.
Appellant defended the charges by
arguing it was not he who committed the murder, but his girlfriend, a woman
named Anitra Johnson. Appellant
supported this theory with evidence that indicated it was extremely likely that
Johnson’s DNA was found on the handle of a knife that was found in the kitchen
of Tamika’s home and in blood stains that were found around the kitchen
sink. Appellant also supported this
theory with evidence that Johnson had a history of acting aggressively toward
women who were associating with men in whom she was interested.
The jurors apparently rejected this
defense and found appellant guilty of first
degree murder and found the use allegation to be true.
After the court sentenced appellant
to 26 years to life in prison, he filed this appeal.
II.
DISCUSSION
A.
Evidence Describing Prior Misconduct by Third-Party Culpability Suspect
As we have stated, appellant’s defense
was that Tamika was murdered not by him, but by his girlfriend, Anitra
Johnson. In an attempt to support that
theory, appellant presented evidence that Johnson had a history of acting
violently. Specifically, appellant
presented testimony from Shaunta Powell who dated appellant for about a year in
2004. Powell described an occasion when
she received “more than nine†voice mail messages from Johnson on her
phone. The messages were “loud, wild,
crazy, angry, [and] aggressive[.]†Every
message contained the threat that Powell “better leave [appellant] alone†or
she would “cut†her and come and “kill†her.
After receiving the messages Johnson called again and this time, Powell
answered the call personally. Johnson
threatened Powell telling her, “I’m gonna come kill you. Stab you.
Shoot you.â€
Appellant now contends the trial
court erred because it precluded him from presenting additional testimony from
two more witnesses on this point. The
first witness Venus Murcer, testified at an Evidence Code section 402
hearing that she had a romantic relationship with appellant from June through
August 2004. Murcer became pregnant and
both she and appellant believed he was the father.
Murcer described an incident that
occurred in spring 2005. Appellant and
Murcer were at a friend’s house when appellant and Johnson had a fight on the
telephone about Murcer and her child.
Murcer called Johnson a bitch and said she did not want to get involved
in “her and [appellant’s] B.S.†Johnson
arrived at the house later that same day.
She pulled a knife although “[s]he didn’t point it at anybody.†Appellant grabbed Johnson from behind and got
cut by the knife.
Defense counsel argued this evidence
should be admitted because appellant’s defense was “when he and Anitra Johnson
fight, when he and Anitra Johnson argue about his relationships with other
women, she turns to violence. Her motive
under those circumstances is to lash out at the woman that is the subject of
the three-way relationship that is causing her angst . . . .â€
The trial court declined to admit
the evidence finding it inadmissible under section 1101, subdivision (b) and
more prejudicial than probative under section 352.
The defense also wanted to present
testimony from Ralph Brister about his experiences with Johnson. At a section 402 hearing Brister stated that
he had an intimate relationship with Johnson between 1990 and 1999 and he
described several instances where Johnson acted violently toward him.
In 1998, Brister and some friends
were talking to some females in a parking lot.
Johnson arrived and she almost hit him with her car. Johnson then got out of her car and wanted to
fight Brister.
In August 1999, Johnson noticed
Brister had a hickey on his neck. She
jumped on Brister and started to scratch his face.
In 1998 or 1999, Brister and Johnson
were at a party together when Brister held Johnson down and allowed someone to
throw water on her. Johnson left and
returned with a gun which she pointed at Brister.
In 1996, Johnson saw Brister hugging
a woman with whom he had a relationship.
Johnson almost ran him over with her car.
On another occasion, Johnson learned
Brister had impregnated someone else.
Johnson confronted Brister with the allegation and then drove with him
to the woman’s house. Johnson jumped out
of the car and told the woman’s mother to “tell the bitch to come
outside.†The woman did not do so.
Defense counsel argued these
incidents should be admitted because they demonstrated Johnson “is motivated by
jealousy to act out in a violent manner.â€
The trial court declined to admit
the evidence ruling they were not sufficiently similar to the charged crime.
Appellant now contends the trial
court erred when it declined to admit testimony from Murcer and Brister about
Johnson’s prior violent and aggressive acts.
The court’s failure to admit that evidence, appellant argues, prevented
him from presenting his defense and violated his due process rights.
Section 1101 applies the same way to
third party suspects as it does to criminal defendants. (People
v. Davis (1995) 10 Cal.4th 463, 501.)
Section 1101, subdivision (a) “prohibits admission of evidence of
a person’s character, including evidence of character in the form of specific
instances of uncharged misconduct, to prove the conduct of that person on a
specified occasion.†(
393.) Section 1101, subdivision (b)
clarifies, however, that this rule “does not prohibit admission of evidence of
uncharged misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition.†(Ewoldt,
supra, 7 Cal.4th at p. 393, fn. omitted.)
“‘[E]vidence of uncharged crimes is admissible to prove, among other
things, the identity of the perpetrator of the charged crimes, the existence of
a common design or plan, or the intent with which the perpetrator acted in the
commission of the charged crimes. . . . only if the charged and uncharged
crimes are sufficiently similar to support a rational inference of identity,
common design or plan, or intent.’†(
1147.) On appeal, the trial court’s
determination whether evidence is admissible pursuant to section 1101,
subdivision (b) as well as its evaluation whether the probative value of the
evidence was outweighed by the probability that its admission would create a
serious danger of undue prejudice, of confusing the issues, or of misleading
the jury are reviewed for abuse of discretion.
(People v. Lewis (2001) 25
Cal.4th 610, 637.)
Applying
this standard, we conclude the trial court did not err when it declined to
admit the evidence appellant has identified.
The incident that Murcer described was murky at best. While it appears Johnson became angry with
Murcer it is not at all clear why that occurred. As the trial court observed, “I simply fail
to see the jealousy emotion surfacing in this incident. I don’t know what triggered the incident.†Furthermore, appellant’s theory for admitting
the evidence was that it showed when he and Johnson fought about other women,
Johnson’s response was to “lash out at
the woman that is the subject of the three-way relationship that is causing her
angst . . . .†But the evidence did not
support that conclusion. Johnson did not
attack Murcer or threaten her physically.
While Johnson did pull a knife, “[s]he didn’t point it at anybody.†Indeed, according to Murcer, the entire
incident “wasn’t even about [her]. It
was all about him [i.e., appellant].â€
The trial court considering this evidence reasonably could conclude it
did not show that when appellant and Johnson fought about his relationship with
other women, her response was to “lash out at the woman that is the subject of the three-way relationship that
is causing her angst . . . .†Rather, it
was much more in the nature of character evidence that is expressly made
inadmissible by section 1101, subdivision (a).
The
incidents that Brister described were even further afield. Those incidents might have been relevant if
they indicated Johnson had a habit of attacking other women with whom appellant
was associating, but that is not what this evidence showed. As the trial court noted although those
incidents show “Anitra Johnson is an angry woman who seems to be mad at Ralph
Brister a lot and took it out on him. . . . none of these incidents involve
Anitra Johnson going after any female involved with Mr. Brister. It was strictly a matter of going after him,
the male.†Again, the trial court
reasonably could conclude the incidents Brister described did not support the
conclusion that Johnson had a motive to murder Tamika.
We conclude
the trial court did not abuse its discretion when it excluded the evidence
appellant has identified. (
637.) There was no error on this ground.
Having
found no error under state law, we also reject appellant’s federal due process
claim. A defendant has the right to
offer a defense through the testimony of his witnesses (Washington v. Texas (1967) 388 U.S. 14, 23), but a state court’s
application of ordinary rules of evidence generally does not infringe upon that
right. (People v. Lawley (2002) 27 Cal.4th 102, 155.) The evidence excluded in the present case was
not so vital to the defense that due process principles required its
admission. (People v. Hawthorne (1992) 4 Cal.4th 43, 56-59.) Indeed, it was largely cumulative of the
evidence that appellant was allowed to present.
B. Evidence
of Prior Misconduct
With
defense counsel’s agreement, the prosecutor presented evidence about two
occasions when appellant acted violently toward Tamika in the past. The first incident occurred in January
2003. Tamika’s sister Tahnee was at
Tamika’s house when appellant came home screaming, yelling, and accusing Tamika
of cheating on him. Tamika tried to
leave but appellant blocked her departure and then hit her in the head with the
palm of his hand.
The second
incident occurred a few months later in April 2003. Tamika’s mother Charlene testified that
Tamika called her in the middle of the night and said appellant had beaten
her. Charlene went to Tamika’s house and
saw that her face, eyes and jaw were swollen.
Tamika said appellant had accused her of cheating and had punched her
several times.
But over
appellant’s objection, the court allowed the prosecutor to present additional
evidence describing appellant’s prior misconduct.
Tamika’s
sister Nicole described four instances where appellant engaged in what
reasonably can be characterized as stalking behavior. The first occurred in August 2000 when
Nicole, Tamika, and two friends went to an event in Reno. According to Nicole, appellant called Tamika
as many as 50 times yelling and screaming and accusing her of being with
another man. Finally, appellant came to
Reno and banged on their door in the middle of the night.
The second
incident occurred in December 2000 when Nicole and Tamika went to a comedy show
in San Francisco. Appellant called
Tamika as many as 10 times speaking loudly and angrily. He then came to the theater and sat on the
stairs next to Tamika for the entire show.
The third
incident occurred in December 2005.
Nicole and Tamika went to a New Year’s Eve show and appellant called
Tamika repeatedly throughout the show.
The fourth
incident occurred February 2006 when Nicole and Tamika went to a birthday party
at a hotel. Appellant called Tamika
during the party to tell her the dome light in her car was on.
In
addition, the prosecutor presented testimony from Tamika’s mother Charlene who
described an incident that occurred in June 2006. Tamika called saying appellant was very
drunk. He accused Tamika of cheating and
threatened to take Jasmine from her.
The
prosecutor also presented evidence from appellant’s former girlfriend, Donisha
Day who said that in January 2000, appellant came to her apartment about 1:30
in the morning, accused her of cheating, and threatened her with a gun.
Finally,
the prosecutor presented evidence that appellant had a cocaine problem in the
past. This testimony was provided by a
relative of Tamika who said he asked appellant why he had beaten Tamika. Appellant did not deny the act, but explained
that he was now “off that candy.†When
the relative asked appellant “what candy?†appellant replied cocaine.
Appellant
now contends the trial court erred when it allowed the prosecutor to present
this evidence of his prior misconduct.
We turn
first to the testimony provided by Tamika’s sister Nicole who described four
instances where appellant stalked Tamika.
Section
1101, subdivision (a), states the general rule that character evidence is
inadmissible to prove a defendant’s conduct on a specific occasion. But section 1101 is subject to several
exceptions one of which is set forth in section 1109, subdivision (a)(1). As is relevant section 1109 states: “in a criminal action in which the defendant
is accused of an offense involving domestic violence, evidence of the
defendant’s commission of other domestic violence is not made inadmissible by
Section 1101 . . . .â€
The term “domestic
violence†is defined as “abuse committed against an adult . . . who is a spouse
. . . cohabitant . . . or person with whom the suspect . . . has had a dating
or engagement relationship.†(Pen. Code,
§ 13700, subd. (b).) Appellant’s
murder of his wife Tamika plainly “involve[ed] domestic violence†within the
meaning of section 1109, subdivision (a)(1).
Furthermore, case law holds that stalking is an act of domestic violence
within the meaning of section 1109. (
1138, 1142.) Therefore, evidence that
appellant stalked Tamika on several prior occasions was admissible under
section 1109.
The same
section authorized the admission of the evidence from appellant’s former
girlfriend Day. Because appellant and
Day had a dating relationship, evidence he had abused Day previously by
threatening her with a gun was admissible under section 1109.
The trial
court properly admitted the testimony from Tamika’s mother Charlene under
section 1101, subdivision (b) which authorizes the admission of evidence of
prior misconduct “when such evidence is relevant to establish some fact other
than the person’s character or disposition.â€
(People v. Ewoldt, supra, 7
Cal.4th at p. 393, fn. omitted.) That is
the situation here. The fact that
appellant accused Tamika of cheating and threatened to take Jasmine from her
provided strong evidence of his motive to beat and kill Tamika. As another court stated when faced with a
similar facts, “Evidence tending to establish prior quarrels between a
defendant and decedent and the making of threats by the former is properly
admitted . . . to show the motive and state of mind of the defendant.†(People
v. Cartier (1960) 54 Cal.2d 300, 311; see also People v. McCray (1997) 58 Cal.App.4th 159, 172.)
Finally,
evidence that appellant had taken cocaine was admissible to explain why Tamika
would continue to associate with appellant after
he had beaten her. In effect
appellant blamed his attack on his cocaine problem and indicated the problem
would not recur because he was no longer taking the drug. A reasonable inference is Tamika stayed with
appellant because he claimed he had reformed.
We conclude
the trial court properly admitted the evidence appellant has identified.
Appellant
contends that even if the court had a legal justification for admitting the
evidence in question, the court should have excluded it under section 352. We disagree.
The trial court is granted broad discretion to determine whether
evidence is more prejudicial than probative and its ruling will be reversed on
appeal only where the court abused its discretion. (People
v. Lee (2011) 51 Cal.4th 620, 643.)
We find no abuse here. Each item
of evidence was relevant on an issue that was disputed at trial. Evidence of appellant’s stalking behavior,
his prior threat against Day, and the prior threats described by Tamika’s
mother Charlene were all relevant as evidence of motive and to demonstrate
appellant’s state of mind. Appellant’s
prior cocaine use, and the fact that he allegedly had stopped using the drug
helped explain why Tamika would stay with appellant even though he had beaten
her. While appellant’s prior misconduct
placed him in a bad light, none of the incidents described was prejudicial as
that term is defined, i.e., “‘evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual . . . .’†(People
v. Karis (1988) 46 Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) On these facts, we conclude the trial court
did not abuse its discretion when it admitted the evidence appellant has
identified.
Appellant’s
last argument on this issue is that the trial court’s admission of the evidence
violated his due process rights. As a
general rule application of the ordinary rules of evidence do not implicate
federal due process. (
1102-1103.) We see no reason why that
general rule should not apply here.
C. Intimate Partner Battering Syndrome
Over
appellant’s objection, the trial court allowed Rhonda Leipelt, a sergeant with
the Redwood City Police Department, to testify as an expert witness about
intimate partner battering syndrome and its effects. Leipelt stated that when one spouse beats
another, the goal of the batterer is to gain control over the victim. The victim will not leave the batterer
because she loves him and thinks she can handle him. Over time, the victim will tend to
underestimate the danger of the abusive environment and to overestimate her
ability to control her partner. The
majority of times, the situation will continue until the victim reaches a
breaking point. Some major life event
like the death of a family member or close friend will cause the victim to
reassess her life and “find the courage to leave on behalf of the others [who]
may be hurt in the process.â€
Appellant
now contends testimony from Leipelt concerning intimate partner battering
syndrome and its effects should have been excluded because it was “irrelevant
with regard to the murder charge . . . .â€
As is
relevant here, section 1107, subdivision (a) states, “In a criminal action,
expert testimony is admissible . . . regarding intimate partner battering and
its effects, including the nature and effect of physical, emotional, or mental
abuse on the beliefs, perceptions, or behavior of victims of domestic violence
. . . .†The statute makes intimate
partner battering syndrome testimony “relevant to explain that it is common for
people who have been physically and mentally abused to act in ways that may be
difficult for a layperson to understand.â€
(People v. Riggs (2008) 44
Cal.4th 248, 293.) The trial court is
granted broad discretion to determine whether expert testimony should be
admitted and its ruling will be reversed on appeal only where the court abused
that discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1303.) We find no abuse here.
The
evidence that was presented showed appellant abused Tamika physically and
emotionally over a long period of time.
But the evidence also showed that despite this abuse, Tamika stayed with
appellant. The trial court reasonably
could conclude that the jurors might be confused by why a woman would stay with
a man who abused her, and that they would benefit from hearing an expert
explain that such conduct is predictable and is consistent with the conduct of
others who have experienced similar abuse.
We conclude the trial court did not abuse its discretion when it
admitted the evidence in question.
Appellant
contends that the trial court should not have admitted the evidence because
Tamika “acted in a way that was not at all difficult to understand – i.e., fed
up with appellant’s conduct, she sought to divorce him.†While Tamika did begin taking steps to
divorce about 10 days before she was murdered, that did not explain why she had
not done so earlier despite years of abuse.
The trial court reasonably could conclude the testimony was helpful to
explain why Tamika delayed acting as the jurors might otherwise have expected.
D. Wheeler
Motion
So many
prospective jurors were assigned to the courtroom in which appellant was to be
tried that there were not enough seats to accommodate them. Accordingly, the parties stipulated to a
procedure under which each side would be allowed to excuse five potential jurors
before the voir dire even began. After
the prosecutor used one of his challenges to excuse J.S., an African American
man, the defense objected under Wheeler
complaining that J.S. was the only African American on the panel. The prosecutor denied J.S. was the only
African American on the panel. The court
said it was unsure whether defense counsel was correct, but even if she was,
the court ruled defense counsel had failed to make a prima facie case of
discrimination based on “a single challenge to a single prospective juror
self-identifying as black.â€
Notwithstanding
this ruling, the court allowed the prosecutor to explain his challenge. As is relevant here, he said he was concerned
about J.S. because his questionnaire indicated he had been wrongfully stopped
by the Oakland police. As the prosecutor explained, “My concern . . . is that,
especially recently, he says he was profiled.
And the Oakland Police Department just doesn’t have a good reputation. .
. . [¶] . . . And I would be hard-pressed to argue with him if he says he
was profiled.â€
Appellant
now contends the trial court erred when it denied his Wheeler motion.
The
California and federal Constitutions forbid a prosecutor from excluding
prospective jurors for a racially discriminatory purpose. (People
v. Zambrano (2007) 41 Cal.4th 1082, 1104, overruled on another point in
421, fn. 22.) A three-step procedure is
used to determine whether a prosecutor is exercising his challenges in an
improper manner. “‘“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.’â€â€™â€ (
Here, the
trial court ruled appellant failed to make out a prima facie case of
discrimination. Appellant argues this
finding is “moot†because the prosecutor went on to explain his reasons for
excusing J.S. as a juror. This is
incorrect. Our Supreme Court addressed
this issue in People v. Taylor (2010)
48 Cal.4th 574, and its ruling was unequivocal, “we reject defendant’s argument
that, because the trial court asked the prosecutor to state her race-neutral
reasons for excusing T.B., we should proceed immediately to the third step of
the Batson analysis—determining
whether the record supports the prosecutor’s race-neutral explanations—without
first determining whether defendant established a prima facie case of
intentional discrimination.†(
Therefore,
we turn to whether the trial court’s finding that appellant had failed to make
out a prima facie case is supported by the record. We evaluate that question under the standard
recently set forth by our Supreme Court in Taylor,
i.e., we must “undertake an independent review of the record to decide ‘the
legal question whether the record supports an inference that the prosecutor
excused a juror on the basis of race.’â€
(Taylor, supra, at p. 614,
grounds in People v. McKinnon (2011)
52 Cal.4th 610, 637-368.)
Here, the
only reason cited by defense counsel in support of his Wheeler motion was that J.S. was the sole African-American on the
panel.
Many courts
have ruled this type of showing is inadequate to establish a prima facie
case. For example, in
526, the prosecution used peremptory challenges to strike two African Americans
and the defendant’s attempt to make out a prima facie case was “limited to his
statement that ‘there were only two blacks on the whole panel, and they were
both challenged by the district attorney.’â€
(Id. at p. 536.) The Rousseau
court ruled that statement was insufficient to establish “a prima facie
showing of systematic exclusion.†(
Our Supreme Court followed Rousseau
in People v. Wright (1990) 52
Cal.3d 367, 399, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459, and found that the
defendant failed to establish a prima facie case “solely by his observation
that one prospective juror peremptorily challenged by the prosecutor was
Black.†Similarly, in
the Supreme Court found the defendant’s showing “completely inadequate†where
he showed only “that the prosecutor had challenged the only two Black
prospective jurors.†(
of the reason for her objection inadequate to establish a prima facie case.
Furthermore
and importantly, the questionnaire J.S. submitted discloses several obvious
race-neutral reasons for excusing him as a juror. First, as the prosecutor later explained,
J.S. was asked whether he had any bad or unpleasant experiences with a law
enforcement officer. J.S. replied that
he had been “pulled over on my way to work (profiled).†Given that much of the testimony at trial
would be presented by law enforcement personnel, it would be reasonable for the
prosecutor to be leery of a juror who had a bad experience with a police
officer.
Second, the
juror questionnaire stated, “The Court will instruct you not to read, view,
listen to, or discuss any news coverage of this case with anyone, including
family members. Will you be able to
follow that instruction?†J.S. answered
“No.†If this response was honest, it is
clear why a prosecutor would not want J.S. as a juror. If the response was an honest mistake caused
by inattention, it would also be reasonable to question whether J.S. would be a
good juror.
Third, the
questionnaire stated, “The victim’s two children, now ages 11 and 13 will
testify in this case. Is there anything
about that fact alone that would substantially interfere with your ability to
be a fair and impartial juror in this case?
If yes, please explain.†J.S.
responded, “I don’t believe children should be under pressure of court.†J.S.’s response strongly indicates that he
could not be fair and impartial because Quincy, Jr. and Deon would be
testifying in the case. This alone is an
adequate race-neutral basis for removing J.S. as a juror.
In sum, the
record contains ample grounds for removing J.S. as a juror and legally
insufficient grounds to make out a prima
facie case. We do not hesitate to
conclude the trial court correctly denied appellant’s Wheeler motion.
E. Sufficiency of the Evidence
Appellant
contends the evidence that was presented at trial was insufficient to support
his conviction of first degree murder.
Our role
when evaluating this type of argument is “a limited one.†(People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“‘The proper test for determining a claim of insufficiency of evidence
in a criminal case is whether, on the
entire record, a rational trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light
most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence. [Citation.] [¶] ‘Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder. [Citations.]’†(Ibid.,
quoting People v. Jones (1990) 51
Cal.3d 294, 314.)
Here,
appellant was convicted of first degree murder that is defined as a killing
that is “willful, deliberate and premeditated.â€
(Pen. Code, § 189.) In
our Supreme Court surveyed a prior cases involving the sufficiency of evidence
to support findings of deliberation and premeditation and identified three
categories of evidence that could support such findings: (1) planning activity,
(2) motive, and (3) manner of killing. (
show that this court sustains verdicts of first degree murder typically when
there is evidence of all three types and otherwise requires at least extremely
strong evidence of (1) or evidence of (2) in conjunction with either (1) or
(3).†(Id. at p. 27.)
All three
types of evidence are present here.
Planning is shown by the facts that surround the murder itself. Quincy, Jr. testified that he was awoken by
his mother’s scream and, when he looked into his parents’ bedroom, he saw his
mother on the bed with appellant standing over her and holding her down by her
wrists. Appellant calmly told Quincy,
Jr. to shut the door. Later, Quincy, Jr.
heard banging and thumping coming from his parents’ bedroom. The process of premeditation and deliberation
does not require an extended period of time.
(People v. Koontz (2002) 27
Cal.4th 1041, 1080.) The jurors here
reasonably could conclude that appellant decided to kill Tamika after
encountering Quincy, Jr. and that he willfully and deliberately carried out
that plan.
Motive is
shown by appellant’s prior violent history, his extreme jealousy, and by the
fact Tamika had recently decided to divorce him. A reasonable inference from the evidence is
that Tamika’s decision to leave appellant caused appellant to become angry and
culminated in his decision to murder her.
The method
of killing also showed deliberation. A
reasonable interpretation of the evidence is that appellant stabbed Tamika
repeatedly but then did nothing and simply left her to die in a pool of blood. In People
v Lasko (2000) 23 Cal.4th 101, 112-113, our Supreme Court stated
premeditation was shown by the defendant hitting his victim in the head with a
bat and then not calling for medical care.
The same situation is present here.
In sum, we
conclude appellant’s first degree murder conviction is supported by substantial
evidence.
F. Cumulative Error
Appellant
contends that even if none of the errors he has articulated are prejudicial
individually, when viewed cumulatively, they compel a reversal of his
conviction. We have rejected each of the
arguments appellant has advanced. There
is no error to cumulate.
III. DISPOSITION
The
judgment is affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
name="_ftn1" title="">[1] Because the victim and many of the witnesses share the same
last name, we will refer to them by their first names.
name="_ftn2" title="">[2] Unless otherwise indicated, all further section references
will be to the Evidence Code.
