P. v. Perry
Filed 8/15/13
P. v. Perry CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCEL
PERRY,
Defendant and Appellant.
A130484
(Alameda County
Super. Ct. No.
C-162408)
This
is an appeal from judgment after a jury convicted defendant Marcel Perry of
vehicle and felony gun possession with various gun- and gang-related
enhancements. The trial court thereafter
sentenced defendant to 55 years and eight months to life in prison. Defendant challenges the judgment on the
grounds that the prosecutor’s excusal for cause of two African-American female
prospective jurors violated his right to a
fair and impartial jury, and that the prosecutor’s insinuation of facts not
in evidence during his cross-examination rendered his trial fundamentally
unfair. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
The
following facts are not in dispute. On
November 20, 2008, at about 5:00 p.m., Vincent Scott, a.k.a. “Pooh,†was
shot to death while driving his vehicle near the intersection of San Pablo
Avenue and Myrtle Street in West Oakland.
Witnesses, including Shalom Bower, Deborah Sherman and Daniel Ramos,
heard about 20 gunshots. Bower and
Sherman saw a silver van with a vanity license plate driving away from the
scene with its tires squealing. Ramos
saw an African-American man in his early 20s holding a large rifle pointed in
the direction of San Pablo and then running down Myrtle. Ramos then saw another car crash into a
roll-up door. The driver of this vehicle
was later identified as Scott, a member of the Ghost Town gang with a
reputation in Oakland for violence who was killed by gunshots to the back of
his head.
A
police investigation ensued, yielding the following evidence. A cell phone was found at the crime scene
containing numerous photos of defendant (including photos he took of himself)
and DNA on the earpiece and mouthpiece that matched his DNA. In addition, 27 gun casings were found that
criminalists later determined were mostly fired from the same weapon. Finally, police recovered the silver van with
vanity plates identified by eyewitnesses Bower and Sherman, which was traced to
owner Oscar Harper. While Harper was
confirmed to be out of town on the day in question, his nephew, Jamie Wallace
(a.k.a. “J-Dubâ€), was seen driving the van at about 2 p.m.
On
January 6, 2009, Oakland Police Officer Steve Valle went to the Acorn
Housing Complex to investigate a report from a confidential informant that
defendant and a man named Houston Nathaniel were in the area in possession of
firearms. Officer Valle observed
defendant in video footage from a surveillance camera handing a suspected
firearm to Nathaniel, who then placed the item in his waistband. Officer Valle thus had the two men arrested,
at which time two firearms were found on Nathaniel.
On
April 7, 2009, defendant was interviewed in connection with Scott’s murder
for about five hours by Oakland Police Inspector Gus Galindo. During this interview defendant confessed to
shooting Scott. The next day, defendant
was interviewed by Deputy District Attorney Colleen McMahon, for whom he drew a
diagram showing his location during the shooting.
Trial
began July 21, 2010. Among other
witnesses, Officer Valle testified for the prosecution as an expert on Oakland
gang activities. Officer Valle
identified defendant as a member of the Acorn gang, an “informal†gang with
about 50 to 75 members. In addition to
sharing common symbols and signs, the Acorn gang engaged in a wide variety of
shootings, narcotics and firearm possession, and robbery. Officer Valle further explained that Acorn
had been a rival gang to Ghost Town, Scott’s gang, since June 2006. The territories of these two gangs were just
blocks apart in Oakland.
In
identifying defendant as an Acorn member, Officer Valle pointed to defendant’s
tattoo, his gang moniker (“Woodahâ€), the names of fellow gang members found on
his cell phone call list, and photographs found on his cell phone and at his
home that included photographs of individuals flashing Acorn’s gang sign. Officer Valle believed the murder in this
case was gang-related based upon Scott’s presence in Acorn territory, which
would have been perceived as a showing of disrespect to Acorn by Ghost Town;
the use of a high-powered assault weapon, a commonly used Acorn weapon; and the
crime’s highly visible location in a major West Oakland thoroughfare, which
would have enhanced Acorn’s violent reputation.
Defendant,
testifying on his own behalf, claimed Acorn was a housing project rather than a
gang. Defendant also claimed that, in
the Acorn area at about noon on the day of the shooting, he saw an
acquaintance, Warren Ingram, walking around with an assault rifle, and saw
Scott circling the block a few times.
Defendant insisted that, in the evening, when he learned of the
shooting, he was at his sister’s house.
Ingram later told defendant that he shot Scott. According to defendant, he nonetheless
falsely confessed shooting Scott to Inspector Galindo because he feared what
would happen to his family if he snitched on Ingram (who is now dead, so no
longer a threat). Defendant acknowledged
also telling Inspector Galindo that Jamie Wallace, who was still alive, was the
van’s driver, and could not explain why this disclosure was not
“snitching.†Nor could defendant explain
why his cell phone was found at the crime scene.
Corroborating
defendant’s alibi was 17-year-old T.B., who testified that he saw two people in
a Buick car shoot Scott on the day in question.
T.B. did not know the shooters’ identities, but confirmed defendant was
not one of them. T.B. acknowledged on
cross-examination that he was arrested for robbery on December 4, 2008 and
that, on the same day, he gave a statement to Inspector Galindo about
witnessing Scott’s murder.
On
August 24, 2010, a jury convicted defendant of first degree murder (Pen. Code,
§ 187, subd. (a)), shooting at an
occupied motor vehicle (§ 246), and being a felon in possession of a
firearm (§ 12021, subd. (a)(1)).
for personal use and intentional discharge of a firearm (§ 12022.53,
subds. (b), (c), (d), (g); § 12022.7, subd. (a); § 12022.5, subd.
(a)), and committing the crimes for the benefit of a criminal street gang
(§ 186.22, subd. (b)(4)). Following
a sentencing hearing held on November 19, 2010, the trial court imprisoned
defendant for 55 years and eight months to life. This timely appeal followed.
DISCUSSION
Defendant
raises two primary issues for our review.
First, defendant contends the prosecutor violated his
and to a trial by jury by using the People’s peremptory challenges to exclude a
cognizable group of African-American women.
Second, he contends the prosecutor engaged in prejudicial misconduct in
violation of his constitutional right to due process when questioning him
regarding his meeting with prospective defense witness, Dr. Ron Minagawa,
an expert on Bay Area gang activities, by suggesting facts not in
evidence. We address each issue in turn.
I. The Prosecutor’s Use of Peremptory Challenges.
The
first issue relates to the trial court’s denial of defendant’s motion
challenging the prosecutor’s use of peremptory challenges to exclude from the
jury two prospective jurors, Gloria Johnson and Rhonda White-Warner, who are
both African-American and female.
name="_ftnref2" title="">[2] The relevant law is not in dispute. “[U]se of peremptory challenges to strike prospective jurors
on the basis of group bias — that is, bias against ‘members of an identifiable
group distinguished on racial, religious, ethnic, or similar grounds’—violates
the right of a criminal defendant to trial by a jury drawn from a
representative cross-section of the community under article I, section 16 of
the California Constitution†and “the defendant’s right to equal protection
under the Fourteenth Amendment to the United States Constitution.â€
491, 541, citing Batson v. Kentucky
(1986) 476 U.S. 79, 88 [Batson];
People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [“remov[ing] prospective
jurors on the sole ground of group bias violates the right to trial by a jury
drawn from a representative cross-section of the community under article I,
section 16, of the California Constitutionâ€] [Wheeler].)
When, as here, a defendant
challenges the prosecution’s use of peremptory strikes by way of a so-called
comply with the following procedures.
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.’ [Citation.]†(
v. Williams (2013) 56
Cal.4th 630, 649.) Second, if the
defendant succeeds in making this 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.]’ (
162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted.)†(People v. Williams, supra, 56 Cal.4th at p. 649; see also
1216.)
discrimination is a question of fact.†(
v. Lewis (2008) 43 Cal.4th
415, 469.) As such, on appeal, we
must uphold the trial court’s denial of a Wheeler/Batson
motion “if the ruling is
fairly supported by substantial evidence in the record, giving deference to
the trial court which had the opportunity to observe . . . the juror.â€
(People v. Holt (1997) 15 Cal.4th 619, 651; see also
p. 649.) “ ‘We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great deference to
the trial court’s ability to distinguish bona fide reasons from sham excuses.’
[Citation.] As long as the court ‘makes a sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal.’ [Citation.]†(People v. Williams, supra, 56 Cal.4th at p. 650.)
Here,
the trial court denied defendant’s Wheeler/Batson
motion at the first stage, finding that he failed to make a prima facie showing
that the totality of the relevant facts gave rise to an inference of
discriminatory purpose.
name="_ftnref3" title="">[3] Nonetheless, even in the absence of burden
shifting, the prosecutor chose to go forward with an offer of permissible
race-neutral justifications for the challenged strikes, which the trial court
accepted as proof of the lack of purposeful racial discrimination. (See People v. Williams, supra, 56 Cal.4th at p. 649.) Putting aside this particular nuance of the
find no grounds for disturbing the trial court’s decision to deny defendant’s
motion given the substantial evidence supporting the prosecutor’s race-neutral
justifications for striking prospective jurors Ms. Johnson and
Ms. White-Warner.
Specifically,
with respect to Ms. Johnson, the prosecutor explained that he excused her
from the jury pool based upon the following facts: her cousin was incarcerated on drug charges
in North Carolina and she had visited him there; she expressed on a jury
questionnaire her beliefs that African-Americans are subject to different
treatment and that “without money there is no justice;†and she stated during
voir dire her belief that prisons are not good places and that, should
defendant end up incarcerated, two lives would be lost rather than one (the
victim’s and defendant’s), a fact that will likely remain on her mind should
she be on the jury.
title="">[4] Given these circumstances, the prosecutor
explained, he was concerned about Ms. Johnson’s expressions of sympathy
and her dislike of prisons. The record
of Ms. Johnson’s voir dire is in all significant regards consistent with
the prosecutor’s explanation. As such,
because the prosecutor’s stated reasons for excusing Ms. Johnson are
reasonably grounded, not in purposeful discrimination, but rather in the common
trial strategy of avoiding jurors who might improperly decide a defendant’s
guilt based on sympathy or aversion to imprisonment, there are no grounds for
reversal in her case. (
v. Lewis, supra, 43 Cal.4th
at p. 469 [“The credibility of a prosecutor’s stated reasons for
exercising a peremptory challenge ‘can be measured by, among other factors
. . . how reasonable, or how
improbable, the explanations are; and by whether the proffered rationale has
some basis in accepted trial strategy’ â€].)
Moreover,
we reach a similar conclusion with respect to the challenge to
Ms. White-Warner, a program manager for the HIV/AIDS Ministry Project at
the Allen Temple who had conducted creative writing workshops for female
inmates at Santa Rita. The prosecutor
explained his decision to excuse Ms. White-Warner as follows. First, he noted that Ms. White-Warner
described herself as “an activist of sorts,†who saw the need for “radical
healing†and “increased dialogue†between the police and the African-American
community in Oakland. Second, he pointed
to “[w]hat she does for a living, she is a minister†with a degree in
restorative justice.
name="_ftnref5" title="">[5] According to the prosecutor, based on these
facts, “I don’t think there could be potentially a juror who would be more
sympathetic towards a defendant.†Again,
the record supports the adequacy of the prosecutor’s explanation. No more is required.
[“ ‘All that matters is that the prosecutor’s reason for exercising the
peremptory challenge is sincere and legitimate, legitimate in the sense of
being nondiscriminatory. “[A] ‘legitimate reason’ is not a reason that makes
sense, but a reason that does not deny equal protection’ â€];
v. Guerra (2006) 37 Cal.4th
1067, 1101 [same].) Accordingly,
because defendant has again failed to provide any ground for reversing the
trial court’s denial of his Wheeler/Batson
motion, we proceed to the final issue.
II. The
Prosecutor’s Conduct during Defendant’s Cross-Examination.
Defendant’s
second contention is that the prosecutor engaged in prejudicial misconduct when
questioning him regarding his pre-trial interview with prospective defense
witness, Dr. Minagawa, an expert on Bay Area gang activities. The relevant facts are as follows.
During
defendant’s cross-examination, the following colloquy occurred with the
prosecutor regarding an interview he had in prison with Dr. Minagawa:
PROSECUTOR: Now, Mr. Perry, I want to show you a photograph of some
guy. I think you met with him about
a month ago, a guy named Ron Minagawa; is that right?
DEFENDANT: Yeah.
[¶] . . . [¶]
PROSECUTOR: Interviewed you in jail?
DEFENDANT: Yep.
PROSECUTOR: Talked about you and your life?
DEFENSE COUNSEL: Objection. May we approach?
COURT: Sure. [Discussion
held off the record.]
PROSECUTOR: Mr. Perry, with respect to the questions about your
meeting with Ron Minagawa, I don’t want to hear about the content of your
conversations, okay?
COURT: You said you don’t?
PROSECUTOR: I do not.
PROSECUTOR: You know he was hired as a gang expert, correct?
DEFENDANT: Yes.
PROSECUTOR: You know that Officer Valle was a gang expert for the
Prosecution, right?
DEFENDANT: Yes.
[¶] . . . [¶]
PROSECUTOR: You talked to him, right?
DEFENDANT: Yes.
PROSECUTOR: How long did you talk to him for? A couple of hours?
DEFENDANT: No. Probably about
an hour.
PROSECUTOR: He was hired to provide an opinion that you are not part of a
gang. You understand that, right?
DEFENDANT: Right.
PROSECUTOR: He was hired, after he talked to you, to come in and testify
to that. Do you understand that?
DEFENDANT: Yep.
PROSECUTOR: You know he is not coming in here to testify, right?
DEFENDANT: Right.
PROSECUTOR: You know what perjury is?
DEFENDANT: No.
PROSECUTOR: Lying under oath?
DEFENDANT: (No response.)
PROSECUTOR: Do you understand that Dr. – I think he is a doctor –
Dr. Minagawa would not come in here and perjure himself? Do you understand that?
DEFENDANT: Yes.
PROSECUTOR: He wasn’t going to come in here, your expert hired by your
attorney to come in here and say you are not in a gang. Do you understand that?
DEFENDANT: Yep.
Later,
after defendant was excused as a witness and the jury dismissed for the day,
defense counsel approached the bench and requested a limiting instruction “to
the effect that any testimony regarding Dr. Minagawa should not be
considered evidence in the case.â€
name="_ftnref7" title="">[7] In doing so, defense counsel described
himself as “somewhat offended by the reference to Dr. Minagawa, because,
to me, if the Court allows that kind of evidence to come in, it has a very
chilling effect on me in terms of hiring an expert in the future, because I
must consider when I hire an expert, is the hiring of the expert, all by
itself, likely to be used in some fashion as evidence which is contrary to the
interest of my client.†Defense counsel
also explained that, contrary to the prosecutor’s implication, counsel declined
to use Dr. Minagawa as an expert witness because his opinions were “very
vague, opinions, very generalized,†and thus of limited value. The prosecutor’s implication that
Dr. Minagawa’s opinions would have been unfavorable to the defense was
therefore unfair, “whether it is or isn’t [true].â€
The
prosecutor responded that his questioning regarding Dr. Minagawa was
proper as relevant to defendant’s state of mind and to his credibility in
denying gang membership. The prosecutor
also noted that Dr. Minagawa was a hired defense expert, not defendant’s
treating psychologist, rendering any claim of privilege invalid.
The
trial court, in ruling on the proposed limiting instruction, first pointed out
to defense counsel “you didn’t even object.â€
The trial court also rejected any claim that a psychotherapist privilege
was violated, or that the hearsay rule was implicated, noting the prosecutor
did not ask about the substance of defendant’s conversation with
Dr. Minagawa. The trial court then
ultimately declined to give the proposed instruction based upon the absence of
prosecutorial misconduct or any other legal ground requiring it.
Putting
aside defendant’s apparent waiver of this issue by failing to provide a timely
objection setting forth relevant grounds for his request (People v. Green (1980) 27 Cal.3d 1, 27), we affirm the trial
court’s decision to reject the limiting instruction for the following
reason. Given the overwhelming evidence
in the record of defendant’s guilt and the relative insignificance of the
Dr. Minagawa-related evidence, even if the trial court erred by refusing
to give the proposed limiting instruction, any such error must be deemed
harmless. In particular, as the People note, defendant
was subjected to a lengthy cross-examination, with the challenged portion
constituting a relatively small percentage of his total time on the stand. Second, there was a wealth of other evidence
in the record proving Acorn was a criminal gang to which defendant belonged,
including photographs of defendant and other gang members flashing Acorn’s gang
sign found on his cell phone recovered from the murder scene and at his home. Third, and more importantly, the jury was instructed prior to
deliberations that attorneys’ statements and questions are “not evidence,†and
that the jury must not “assume to be true any insinuation suggested by a
question asked a witness.†We presume
the jury followed these clear instructions and, accordingly, conclude any
misconduct was not prejudicial. (
1234.)
Finally, with respect to defendant’s related claim that the
prosecutor’s questions rendered his trial fundamentally unfair by introducing
before the jury facts not in evidence, we note that prosecutorial misconduct
must rise to the level of reprehensibility or deception to warrant reversal on
appeal. (People v. Hill (1998) 17 Cal.4th 800, 822-823.) Here, while we agree with defendant the
prosecutor’s questions were inappropriate given their dubious relevance to the
purported issue of defendant’s state of mind, we nonetheless conclude there is
no such reprehensibility or deception reflected in the record.
counsel advised the court before trial that Dr. Minagawa would testify
about defendant’s relationship with the Acorn gang (which defendant denied was
a gang), based on his prison interview with defendant. However, defense counsel later decided not to
call Dr. Minagawa as a witness.
These circumstances gave the prosecutor a good faith basis to draw the
conclusion that Dr. Minagawa was not able to provide under oath an opinion
favorable to defendant’s case.
defendant’s request for a limiting instruction must stand. (See
People v. Mooc, supra, 26 Cal.4th at pp. 1233-1234 [no prejudicial
prosecutorial misconduct where the prosecutor had a good faith belief that a
factual basis existed for his insinuations to an adverse witness on the stand,
even though there was no actual basis in the record]. Cf. People
v. Daggett (1990) 225 Cal.App.3d 751, 757-758 [prosecutor engaged in
prejudicial misconduct by suggesting a child sexual abuse victim must have
learned about certain sexual activities from defendant after the prosecutor
successfully moved to exclude contrary evidence that the victim had been
molested by another]; People v. Varona
(1983) 143 Cal.App.3d 566, 570 [prosecutor engaged in prejudicial misconduct
where “the prosecutor
not only argued the ‘lack’ of evidence where the defense was ready and willing
to produce it, but he compounded that tactic by actually arguing that the woman
was not a prostitute although he had seen the official records and knew that he
was arguing a falsehoodâ€].)
DISPOSITION
The
judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Unless otherwise stated, all statutory
citations herein are to the Penal Code.
Two African-Americans remained
on the jury, one as second alternate and one as juror number 12. A third African-American was subject to a
peremptory challenge by the prosecutor, however defendant has not challenged this
strike.
