P. v. Simpson

Filed 6/3/08 P. v. Simpson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Convicted of resisting an executive officer and misdemeanor battery against a peace officer, defendant Harold Simpson appeals, arguing that the trial court erred in: (1) denying his Wheeler/Batson^[1]motion; (2) admitting evidence of a prior conviction for resisting an executive officer; (3) failing to give a unanimity instruction; (4) denying his Marsden^[2]motion; (5) imposing the upper term for resisting an executive officer; and (6) denying him presentence custody credits. Finding no such error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2006, Sacramento County Sheriffs Deputy Kari Bloss, who was working as a deputy/officer for the Rancho Cordova Police Department, responded to a call that someone had fired 10 to 12 shots from an automatic weapon near the Gold Run Apartments. Deputy Bloss spoke with the person who had placed the call, who told her it sounded like the shots came from a neighboring apartment complex, which was separated from the Gold Run Apartments by a cinder block wall. Deputy Bloss looked around the wall and saw four people standing around a green car, with no one else in the area. The witness told her no one had left the area since the shots were fired. Deputy Bloss jumped over the wall at the same time her partner, Deputy Shannon Schumaker, arrived in another patrol car.

As she came over the wall, Deputy Bloss drew her service weapon but held it pointed at the ground with her finger off the trigger. In a calm tone, she told the individuals to let her see their hands. Two of them complied, one of them started yelling profanities at the officers, and the other (Garron Barnum) ran. Deputy Bloss immediately called on her radio for assistance and told the individuals around the car to get on the ground.

Thereafter, Barnum returned to the scene and tried to advance toward the officers but was held back by his mother, Debrah Simpson, who was also defendants sister.^[3] Around this same time, defendant came running toward Deputy Bloss. She raised her weapon, pointed it at him, and told him loudly to stop, get on the ground, and let her see his hands. Defendant stopped about 5 to 10 feet away from Deputy Bloss but refused to obey her other commands, instead standing in a fighting stance, yelling profanities, and telling her he did not have to do what she told him to do. People from both apartment complexes began to surround the scene, which Deputy Bloss likened to Custers last stand.

Around this time, Deputy Greg Saunders arrived. He found two people near the green car lying on their stomachs and a third on his knees shouting profanities. Defendant, Barnum, and Simpson were backing away toward a maroon Toyota and were still refusing to comply with the officers commands. Simpson was holding defendant back as he yelled and tried to lunge forward.

Deputies Saunders and Schumaker handcuffed the three individuals by the green car. At this point, other officers started arriving. Deputy Saunders and Deputy Bloss moved toward defendant, Barnum, and Simpson, and Deputy Saunders pointed his Taser at defendant and told him to get to the ground. Defendant yelled obscenities and took a fighting stance. Eventually, after another officer detained Barnum, defendant turned his back on the officers and placed his hands on the car but still refused to follow the officers commands to get on the ground. One of the other officers handcuffed defendant, then turned him around to escort him to a police vehicle. At that point, defendant called Deputy Saunders a bitch and spit in his face.

Defendant was charged with one count of resisting an executive officer for resisting Deputies Bloss and Schumaker and one count of battery against a peace officer for spitting on Deputy Saunders. The jury found him guilty of both charges, then, in a bifurcated proceeding, found he had five prior convictions. The trial court imposed the upper term of three years for resisting an executive officer, with five consecutive one-year terms for the prior convictions, for an aggregate prison term of eight years. The court also sentenced him to 241 days in jail for the misdemeanor battery, which was equal to the amount of presentence custody credits to which he was entitled.

DISCUSSION

I

Wheeler/Batson Error

Defendant contends the trial court erred in denying his Wheeler/Batson motion regarding the prosecutors use of a peremptory challenge against an African-American juror. We find no error.

Prospective jurors may not be excluded from jury service based solely on the presumption that they are biased because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citations.] A defendant bears the burden of establishing a prima facie case of Wheeler error. [Citation.] If the court finds a prima facie case has been shown, the burden shifts to the prosecution to provide race-neutral reasons for the questioned peremptory challenges. [Citation.] The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation.] Jurors may be excused based on hunches and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.] (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) Once a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its conclusion. (Id. at p. 1126.)

Here, defendant asserts Wheeler error in the prosecutors peremptory challenge of Juror No. 6 (sometimes referred to as Juror No. 18). According to defendant, the record shows no articulable or legally cognizable basis for the strike, other than race.

Juror No. 6 was an international relations student. After the prosecutor exercised a peremptory challenge to excuse him, defendant made a Wheeler motion, noting that no questions were asked of him by the prosecutor and . . . he seemed to be a favorable prosecution juror.^[4] The trial court found a prima facie case of Wheeler error had been shown and asked the prosecutor to respond to that in terms of justifying his challenges. In explaining why he challenged Juror No. 6, the prosecutor stated, My reason . . . is quite simply when we first came to court this morning and the Court instructed or asked everyone if they had pens or papers and the bailiff was handing them out, [Juror No. 6] was the only one of the 17 to not take a pen or a piece of paper or to write down any sorts of notations or attempt to take notations. [] I become concern[ed] when a juror does certain things. One is show general disregard for court procedures, things as simple as wearing a hat in the courtroom or something along those lines. But when one juror in particular, especially a young man, I believe he is a full-time student, it sounds like he is a college student, and while he says he is trying to get a degree in, I believe, international relations and cultural anthropology, which is admirable, my concern is whether or not hes going to pay appropriate attention and give proper deference to the things that are going on in the courtroom, and thats primarily where my concerns with him lie.

After taking the matter under submission, the trial court ruled the next morning that the District Attorney was not in any respect racially motivated or discriminatory in the exercise of his challenges and his exercise was in good faith.

We find no error in the trial courts ruling. The prosecutors explanation for excusing Juror No. 6 constituted adequate neutral reasons for the peremptory challenge. (People v. Alvarez (1996) 14 Cal.4th 155, 197.) The question was not whether the prosecutor had a good reason for challenging the prospective juror, only whether the reason the prosecutor offered was legitimate, i.e., not a mere surrogate or proxy for group membership. (See ibid.) Moreover, substantial evidence supports the trial courts finding that the prosecutors reasons for excusing Juror No. 6 were genuine. (See ibid.) Because the prosecutors neutral explanations indeed related to [the] individual [juror] and related directly to this case, the superior courts finding of genuineness was supported by substantial evidence. (Id. at p. 198.)

Defendant argues that the prosecutors reason for challenging Juror No. 6 closely resembles a reason that was found to be pretextual in McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1223. He is mistaken. In McClain, one of the reasons the prosecutor gave for excusing a juror was that her body language was unacceptable because she had her elbow on her chair. (Ibid.) The appellate court concluded that [t]his explanation, without more, cannot be considered a reasoned explanation, and because the prosecutor did not explain the significance of [the juror]s body language, [s]triking [the juror] on the sole basis that she had her elbow on her chair [wa]s patently frivolous and nonsensical. (Id. at pp. 1223, 1224.)

In contrast to McClain, here the prosecutor explained exactly why he found the fact that Juror No. 6 did not request a pen or paper significant, and that explanation demonstrated that the prosecutors reasoning was neither patently frivolous or nonsensical. Accordingly, McClain is inapposite, and we find no merit in defendants claim of Wheeler/Batson error.

II

Evidence Of Conduct Underlying Prior Conviction

Before trial, the prosecutor moved in limine for permission to impeach defendant -- if he testified -- with two prior felony convictions, one of which was for resisting an executive officer. Defense counsel asked the court to sanitize that conviction by describing it as a crime of moral turpitude, because the jurors would be prejudiced by the fact that its the same charge. The court granted that request, without prejudice to the People insofar as they wish to move pursuant to [Evidence Code section] 1101, depending on the status of the case and whether there is a genuine basis to proceed to a 1101 exception to put that in.

Defendant did testify in his own defense. On direct examination, defense counsel asked defendant if he was personally looking for a confrontation with law enforcement that morning. When defendant said he was not, defense counsel asked him why [he] didnt want to get into an altercation with law enforcement. Defendant responded, I dont try to get into confrontations with law enforcement. They are here to do their job and I respect they got to do they [sic] job. But if I go around looking to get into confrontation with law enforcement, Im going to be locked up.

On cross-examination, the prosecutor confirmed defendants testimony that he do[es]nt try to get into confrontations with law enforcement officers and that he know[s he is] going [to] get locked up if [he] do[es]nt listen to what the officers [say]. Later, outside the presence of the jury, the prosecutor renewed his motion to impeach defendant with his prior conviction for resisting an executive officer. The prosecutor argued that based on various aspects of defendants testimony, including his assertions that he does not try to get into a confrontations with law enforcement, its appropriate to impeach with the PC 69. Defense counsel opposed the admission of the prior conviction under Evidence Code section 352 as prejudicial and very time consuming.

After taking the matter under submission, the trial court allowed the prosecutor to question defendant about the prior conviction for resisting an executive officer. The court concluded that evidence of the prior incident would be admissible under subdivision (b) of Evidence Code section 1101 on the issue of intent. The court also concluded the evidence has some impeachment value as well, obviously, noting that the door has been opened and [i]t was opened by the defendant himself. The court did not allow the prosecutor to ask about the conviction itself, however. Instead, the court allowed the prosecutor to inquire of the defendant about whether he had earlier had a problem with law enforcement where he sought to deter them from performing their duties without reference to the 69 PC by name or label and without reference to the conviction.

Subsequently, the prosecutor asked defendant if he had an occasion in [his] past where [he] personally ha[d] actually interfered with police officers performing their lawful duties, and defendant responded, Yes, sir, one time.

On appeal, defendant contends the trial court erred in admitting the prior conviction to prove his intent.^[5] At no point, however, does he confront the alternate basis the court gave for admitting the evidence -- impeachment -- and therein lies the flaw in his assertion of error. Given defendants own testimony that he does not try to get into confrontations with law enforcement, the evidence that he had, on a prior occasion, interfered with police officers performing their lawful duties was relevant for impeachment purposes. The restrictions in Evidence Code section 1101 on the use of evidence of specific instances of prior misconduct do not apply to evidence offered to support or attack the credibility of a witness. (People v. Kennedy (2005) 36 Cal.4th 595, 620; Evid. Code, 1101, subd. (c).) Accordingly, defendant has failed to show any error in the admission of this evidence.

III

Unanimity Instruction

Defendant contends the trial court erred in failing to instruct the jurors that they were required to agree unanimously on the particular act that constituted resisting an executive officer. We find no error.

It is well established that the entire jury must agree upon the commission of the same act in order to convict a defendant of the charged offense. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1517.) When a defendant is charged with a single [crime] but the evidence reveals more than one [criminal] act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.] The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500; see Cal. Const., art. I, 16.) Even when the defendant does not request a unanimity instruction, such an instruction must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)

[N]o unanimity instruction is required, however, where the acts proved constitute a continuous course of conduct. [Citation.] This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. (People v. Napoles (2002) 104 Cal.App.4th 108, 115.)

The first exception applies here. The information alleged that defendant violated Penal Code section 69 by unlawfully attempt[ing] by means of threats and violence to deter and prevent . . . DEPUTIES K. BLOSS and S. SCHUMAKER, who were then and there executive officers, from performing a duty imposed upon such officers by law, and . . . knowingly resist[ing] by the use of force and violence said executive officers in the performance of their duty. Defendant contends the jury was presented with two distinct sets of acts upon which they could have based their conclusion that [he] obstructed deputies Bloss and S[c]humaker in the performance of their duties: The initial confrontation when [defendant] first approached the parking lot, . . . and the subsequent purported conduct of [defendant] in the area of the maroon Camry. The evidence, however, does not support defendants characterization of these incidents as two distinct sets of acts, nor did the prosecutor argue to the jury that they were distinct.

Deputy Bloss testified that defendant initially came running toward her at a full sprint, stopping about 5 to 10 feet away from her. Despite her commands to him to stop and get on the ground, defendant refused to comply, instead acting very aggressive, standing in a fighting stance, yelling profanities, and threatening to kill her. When other deputies arrived, defendant backed away toward this burgundy car but still refused to comply with Deputy Blosss commands.

Deputy Saunders, who arrived when defendant was already in the vicinity of the maroon Toyota, testified that a woman was trying to hold back defendant, who was yelling unintelligible words and was lunging forward. Deputy Schumaker testified that defendants demeanor was [e]xtremely belligerent and assaultive the entire time.

In closing argument, the prosecutor drew no distinction between defendants actions. Instead, he argued that Deputy Bloss could explain to you why at every step of the way [defendant] was interfering with her and Deputy Schumakers ability to investigate this shooting call.

A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791.) Here, there was no basis in the evidence or the argument for the jurors to disagree which act defendant committed. What was presented to them was a continuous course of conduct by which defendant resisted Deputies Bloss and Schumaker. Accordingly, the trial court did not err in failing to give a unanimity instruction on the charge of resisting an executive officer.

IV

Marsden Motion

Following receipt of the jurys verdicts, but before the bifurcated trial on defendants prior convictions, defendant made a Marsden motion, complaining that his attorney had not subpoenaed to testify every person who was there that day, including all of the police officers. Defense counsel explained that defendant wanted [him] to call all the other police officers who were at the scene because they did not hear any threats . . . allegedly made by [defendant], but he decided not to call them because he came to the conclusion that that would not be beneficial for the simple reason that . . . Officer Bloss and Officer Schumaker . . . were the only officers on site [who] w[ere] there when these threats were made. The trial court denied the Marsden motion on the ground that defense counsel had properly represented [defendant] and continues to.

On appeal, defendant contends the trial court erred in refusing to appoint him a new attorney. We disagree.

Under Marsden and its progeny, substitute counsel should be appointed when, and only when, . . . in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. (People v. Smith (1993) 6 Cal.4th 684, 696.) We review, under the deferential abuse of discretion standard, the trial courts decision denying a Marsden motion. (People v. Jones (2003) 29 Cal.4th 1229, 1245.) The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)

Defendant complains that, contrary to defense counsels assertions to the trial court, other officers were present when defendant allegedly made threats to Deputy Bloss in the vicinity of the maroon car. In his view, for this reason counsels performance in not calling these witnesses on [his] behalf was deficient.

Even if defense counsel was mistaken, however, and other officers who could have testified but did not were present when the alleged threats were made, it does not prove an abuse of discretion in the denial of defendants Marsden motion. Defendant points to nothing in the record suggesting the testimony of the other officers would have been favorable to him. Defendant baldly asserts [t]hese [other] deputies would have contradicted Bloss testimony that [defendant] threatened and was continuing to resist after he had moved or been moved to the vicinity of the maroon vehicle, but he cites to no evidence to support this assertion. For all we know, their testimony might have been adverse to defendant, or at best might have been like that of Deputy Saunders, who testified only that he never heard defendant threaten Deputy Bloss or Deputy Schumaker.

On the record before us, defendant has not shown that defense counsels failure to call the other deputies as witnesses was so deficient that the trial court was bound to determine that defense counsel was not adequately representing defendant. Accordingly, defendant has failed to demonstrate an abuse of discretion in the denial of his Marsden motion.

V

Imposition Of Upper Term

The trial court imposed the upper term of three years for resisting an executive officer because [t]he crime involved the threat of bodily harm and the defendant had a serious and continuing involvement in the criminal justice system and prior performance on parole has been unsatisfactory. Defendant contends this violated his federal constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. He is mistaken.

Following Cunningham, our Supreme Court held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816.) Under Black, the prior conviction exception includes not only the fact that a prior conviction occurred, but also the number and relative seriousness of the convictions. (Id. at pp. 818-820.)

The trial courts reliance on defendants serious and continuing involvement in the criminal justice system to impose the upper term was permissible under Black. Indeed, defendant does not argue otherwise. Instead, he simply asserts that Black was wrongly decided. We, however, are bound by Black. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, defendants challenge to imposition of the upper term fails.

VI

Presentence Credits

At sentencing, the prosecutor argued that because the battery was a separate and distinct course of conduct, and because defendant was entitled to 241 days in presentence custody credits, the court should sentence defendant to 241 days in county jail on that charge and give him credit for time served, with no credit applying to the sentence on the felony charge of resisting an executive officer. Defense counsel requested that no time be placed on the misdemeanors. If its going to be an eight-year sentence, we ask that all the time be placed on [the] felony and if there is any sentence on a misdemeanor that it be done concurrently. The trial court agreed with the prosecutor and ruled that defendants presentence custody credits would be entirely attributed to [the battery].

On appeal, defendant contends the trial court erred when it refused to award presentence credits. The People, on the other hand, argue that since defendants presentence custody credit was applied to his service of the consecutive misdemeanor term imposed on [the battery], [he] is not entitled to presentence credit on the principal felony term imposed on [resisting an executive officer].

The People are correct. Although the trial court did not expressly state that it was imposing a consecutive jail term on the battery charge, it is clear that that is what the trial court intended to do. The prosecutor argued for a consecutive sentence on the ground that the battery charge was based on different conduct toward a different victim than count one -- specifically, the spitting on Deputy Saunders. In sentencing defendant to 241 days in jail on count two -- which also amounted to the total amount of presentence custody credits to which defendant was entitled -- the trial court stated that it had a particular recollection of the factual basis for that, the victim having testified directly, Rancho Cordova Police Officer Deputy Saunders.

Thus, defendants aggregate sentence in this case was eight years in prison and a consecutive 241-day term in jail. The court did not deny defendant any custody credits to which he was entitled, but simply applied them to the consecutive jail term, consistent with the dictates of Penal Code section 2900.5. (See Pen. Code, 2900.5, subd. (b) [Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed].) Accordingly, we reject defendants claim of error.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND , P.J.

BLEASE , J.

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^[1]Wheeler/Batson refers to People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69], which prohibit the use of peremptory challenges to remove prospective jurors based solely on a presumption of bias from the prospective jurors membership in an identifiable group.

^[2]People v. Marsden (1970) 2 Cal.3d 118.

^[3] We will refer to Debrah Simpson as Simpson and to defendant as defendant.

^[4] Defendants Wheeler motion also rested on the prosecutors peremptory challenge of another African-American (Juror No. 12), but defendant does not challenge the trial courts denial of that aspect of his motion on appeal.

^[5] In fact, as we have noted, the trial court did not admit, and the prosecutor did not elicit, evidence of the prior conviction, but rather, evidence of the conduct underlying that conviction.