P. v. Williams

Filed 12/30/08 P. v. Williams CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of San Bernardino County, Stephen G. Saleson, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Frederick Dion Williams of 17 counts, consisting of two counts of first degree residential robbery (Pen. Code,  211; all further statutory references are to this code unless otherwise specified), three counts of kidnapping to commit robbery ( 209, subd. (b)(1)), one count of first degree burglary ( 459), four counts of making criminal threats ( 422), four counts of assault with a firearm ( 245, subd. (a)(2)), one count of a felon in possession of a firearm ( 12021, subd. (a)(1)), one count of evading an officer (Veh. Code,  2800.2, subd. (a)), and one count of street terrorism ( 186.22, subd. (a)). The jury found true that all but the last count were committed for the benefit of a street gang ( 186.22, subd. (b)(1), that a gang member personally used a handgun in committing the robbery and kidnapping ( 12022.53, subds. (b), (e)(1)), that a person other than an accomplice was present during the burglary and that defendant personally used a gun in committing 10 of the counts. ( 12202.5, subd. (a).) Defendant pleaded guilty to two prior convictions ( 667.5, subd. (b).) He was sentenced to 101 years plus three life terms.

Defendant appeals on three grounds: (1) Because he made a prima facie showing that the prosecution wrongfully excluded the only African-American from the jury panel, the court improperly denied his Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 165 [125 S.Ct. 2410, 162 L.Ed.2d 129]; Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson)); (2) the court erred in admitting certain statements because he was not given his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]); and (3) his motion for mistrial should have been granted because false, misleading accusations against him were improperly admitted, denying him a fair trial.

We disagree with each contention and affirm.

FACTS

Larry Moore told James Thomas he had a laptop and big screen television for sale. Thomas had a friend, Jabari Grant, who was interested in buying them. Moore and Thomas agreed Moore would take the equipment to Grants house in Victorville. One evening Thomas, his girlfriend, Norma Valdez, their four children, and Thomass brother, Richard Woodard, drove to Victorville and met Moore, who was seated in the drivers seat of his car; defendant was in the passenger seat. The two groups then drove to Grants house.

After Thomas and Grant looked at the equipment, which was in Moores car, Grant declined to purchase it. Grant then took Thomas into his house and paid him $100 for his effort; the two returned outside where Grant gave Moore $20 for gas. At that point Moore pointed a gun at Thomas; defendant got out of Moores car and pointed a gun at Grant. Defendant searched Thomas and Grant and took the $100 Grant had paid Thomas.

Defendant and Moore ordered Thomas, Grant, and Woodard into the house at gunpoint. Thomas and Woodward were forced to lay face down on the floor while Moore and defendant took Grant around asking where various items were located, threatening to kill Grant if he did not respond or called the police. Moore then took the items, which included clothing, computer and electronic equipment, approximately $2,000 in cash Grant had brought to buy the television and computer, and Grants identification and keys, and gave them to defendant to put in the car. On one trip defendant approached Valdezs car and pointed the gun at it, telling Valdez not to call the police or write down the license plate number or he would hurt her. One of the children found someone to call the police.

As defendant and Moore were driving away, Sergeant John Mattke arrived. He tried to block the car but they evaded him. Mattke and several other officers gave chase through a residential area where defendant was driving over 70 miles per hour, running stop signs, while Moore threw items from the car. Defendant lost control of the car and stopped, and Moore fled, throwing away two guns. A deputy eventually shot and killed him. Search of the area revealed two guns, and a wad of cash was found on Moores person.

The interview of defendant conducted by Detective Jeremy Martinez was recorded on tape and played to the jury at trial. Defendant said he accompanied Moore to Grants house to sell the television and some guns but they were informed when they arrived that Grant had no money. Moore was angry and pulled his gun, ordering Grant and Thomas into the house and forcing them to lie down. Defendant went into the house to try to get Moore to leave and did not take anything. He admitted being in the car but denied having a gun. Defendant said he was a member of the 456 Piru street gang and signed a gang identification card. Two gang experts testified defendant was a member of the gang and that the crimes had been committed for its benefit.

Additional facts are set out in the discussion.

DISCUSSION

1. Wheeler/Batson Motion

Defendant contends the court erred in denying his Wheeler/Batson motion on the ground he had made a prima facie showing of discrimination when the prosecution excused an African-American woman from the jury panel. We are not persuaded.

a. Voir Dire of Juror 174 and Motion

Prospective juror number 174 was an African-American woman, living in Apple Valley, and was married with three children, two of whom were married and a teenager living at home. Formerly in the nursing profession, she had operated a day care facility from her home but was now retired and cared for her disabled husband, a retired government worker. She had never served on a jury. Having heard the questions to other prospective jurors, she had nothing to add about herself. Additionally she had nothing to say that could reveal any bias or prejudice . . . . She believed people could see events in two different ways and neither version would be a lie. She also agreed that once she had deliberated and reached a decision she could remain firm in it even if other jurors disagreed.

In response to a question about whether any of her family members had been exposed to gang activity she replied, most of our children know somebody . . . in a gang, but that dont mean they have to familiarize themselves with the gang. She denied that that knowledge [a]ffected [her or her childrens] outlook on the community . . . or raise[d] strong feelings about the case. She also denied that she would have strong emotional reactions or opinions that would cause her to be unfair to either side based on the evidence of guns, gangs and violence. In response to a hypothetical question she said she understood circumstantial evidence but would have to see how reasonable [an] explanation [for it] would be for her to evaluate it.

After the prosecution exercised a peremptory challenge to juror 174 and defendant asked to approach the bench, the district attorney remarked, If you say the W word, Im going to kill you. Defendants lawyer objected under Wheeler, stating we have hardly any black people on the jury. I dont think she said anything that would preclude her from being off [sic] the jury. And we dont have any members of race that are here. He acknowledged that there had been one other African-American prospective juror who was properly disqualified due to strong religious affiliations.

The court found there certainly . . . ha[d] been no pattern of disqualifying African-Americans and there was no reasonable inference that [juror] . . . 174 was discharged simply because of her being African-American. It invited, although did not require, the prosecution to state its reasons for disqualification, which it declined to do. At that point defendants lawyer reiterated that he did not hear [juror 174] saying anything, that she was anything more than a fair person. And shes the only person from this whole pool, other than the one other individual, that even made it up to the box [that is] the same race [as] my client. The court affirmed denial of the motion based on lack of making a prima facie case.

b. Applicable Law

A prosecutor may not use peremptory challenges to strike prospective jurors on the basis of . . . bias against members of an identifiable group distinguished on racial, religious, ethnic or similar grounds . . . . (People v. Lewis (2008) 43 Cal.4th 415, 469.) Doing so violates both the United States and California constitutions. (People v. Cornwell (2005) 37 Cal.4th 50, 66.)

A court faced with a defendants motion to attack such challenges should use the following procedure: First, determine whether the defendant has made 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.] (Johnson v. California, supra, 545 U.S. at p.168, fn. omitted; see also People v. Avila (2006) 38 Cal.4th 491, 541.)

A defendant has the burden of persuasion to prove the existence of purposeful discrimination. [Citation.] (People v. Avila, supra, 38 Cal.4th at p. 548.) He meets this burden when he produces evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Citation.] (Ibid.) We review a finding no prima facie case has been made for substantial evidence. (People v. Griffin(2004) 33 Cal.4th 536, 555.) In examining a defendants evidence the court looks at whether a particular prospective juror has been challenged because of group bias. [Citation.] (People v. Avila, supra, 38 Cal.4that p. 549.) [A] single discriminatory exclusion may . . . violate a defendants right to a representative jury. [Citations.] (Ibid.) There is a presumption a prosecutors peremptory challenges are constitutional (id. at p. 541) unless that presumption is suspended when the defendant makes a prima facie showing of the presence of purposeful discrimination . . . . (Id. at p. 552.)

c. No Prima Facie Case

The essence of defendants argument in support of his motion was that juror 174 was African-American. His only other claim was that there was nothing showing she would be anything other than fair or that would preclude her from being a good juror.

The mere fact that a peremptory challenge is used to excuse a prospective juror who is a member of a particular race is not sufficient to sustain defendants burden of persuasion. (People v. Box (2000) 23 Cal.4th 1153, 1188-1189 [two challenged jurors who were same race as defendant by itself not enough]; see also People v. Crittenden (1994) 9 Cal.4th 83, 119 [excusal of sole African-American from jury did not show group bias].) Even removal of all members of one group by itself does not suffice. (People v. Young (2005) 34 Cal.4th 1149, 1172, fn. 7; People v. Adanandus (2007) 157 Cal.App.4th 496, 503-504 [motion based on claim three stricken African-American jurors not sufficient as matter of law]; accord People v. Box, supra, 23 Cal.4th at pp.1188-1189 [same].)

We acknowledge that the issue is whether this particular prospective juror was improperly challenged, not whether there was a pattern of removal based on group bias. (People v. Avila, supra, 38 Cal.4th at p. 549.) But a challenge to only one African-American juror (other than the other one here whom both parties agree was properly excused) is rarely enough to show impropriety. (People v. Bell (2007) 40 Cal.4th 582, 598.) [I]n drawing an inference of discrimination from the fact one party has excused most or all members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the partys challenges. Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.] (Id. at p. 598, fn. 3.)

That defendants lawyer believed juror 174 would be fair, based on her responses, is not enough to show she was excused based on her race. This comment is far too vague and generalized to support his burden to show an improper challenge.

In People v. Adanandus, supra, 157 Cal.App.4th 496, the basis for the Wheeler/Batson motion was essentially the same as that offered here. When the prosecution excused three African-American jurors, the defendant objected based on race and that any of those three persons would be good jurors. (Id. at p. 503.) The court treated this as the equivalent of a motion based on race alone and held it did not meet defendants burden. (Id. at pp. 503-504.) It further held that independent review showed no inference of discrimination (id. at p. 504), in which instance we must affirm (People v. Guerra (2006) 37 Cal.4th 1067, 1101, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151). Our independent review of the record, which is required and not based on impermissible speculation and after the fact justification, reveals there is no inference of discrimination in the case before us.

In answer to the prosecutions question about whether anyone in her family had been exposed to gang activity she stated that most of our children . . . know somebody in a gang, but that dont mean they have to familiarize themselves with the gang. She denied that that knowledge [a]ffected [her or her childrens] outlook on the community . . . or raise[d] strong feelings about the case.

This response alone suffices to show a reason to challenge other than race. First, in a gang case, it is reasonable for a prosecutor to be wary of someone with family members who know a gang member. (See People v. Watson (2008) 43 Cal.4th 652, 674 [substantial exposure to gangs is sufficient race-neutral reason]; People v. Williams (1997) 16 Cal.4th 153, 191 [defendant alleged member of Bloods gang; prospective juror who went to school with members of Bloods gang properly excused despite statement defendants gang membership wouldnt mean a thing]) That the prosecution prefaced this question with a comment that exposure to gangs was kind of [a] fact of life these days does not somehow overcome this reason, as defendant suggests.

Second, although we are reading only a cold record, as the Attorney General points out juror 174s response is tinged with a touch of defensiveness that knowing a gang member does not mean familiarity. That, also, is a proper ground for excusing juror 174. (People v. Fiu (2008) 165 Cal.App.4th 360, 398-399 [prospective juror may be excused based upon bare looks and gestures, hunches, and even arbitrary reasons]; People v. Williams, supra, 16 Cal.4th at p. 191 [basis for peremptory challenge may range from the obviously serious to the apparently trivial from the virtually certain to the highly speculative]; People v. Turner (1994) 8 Cal.4th 137, 170, disapproved on another ground in People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5 [body language suffices].)

Third, juror 174 stated that once she had deliberated she could remain firm in her decision even if other jurors disagreed. The prosecution could be concerned she might not engage in the deliberative process.

We reject defendants claim this case is comparable to People v. Allen (1979) 23 Cal.3d 286. There the court found the defendant had made a prima facie case of group bias but it was based on the prosecutions challenge of every African-American, 14 in all, from a jury even though several would likely otherwise have been favorable to the prosecution. (Id. at p. 294.)

Defendant argues the prosecution asked juror 174 only desultory questions, a factor that may be used to make a prima facie showing of group bias. (People v. Allen, supra, 23 Cal.3d at p. 294.) But the record shows voir dire of this prospective juror was no more desultory than others and the subject nature of the questions was comparable.

Defendant also criticizes the failure of the prosecution to offer a race-neutral reason for excusing juror 174. But, as the trial court stated, without defendant making a prima facie case for group bias, the prosecution is not required to state its reasons. (People v. Avila, supra, 38 Cal.4th at p. 541.)

Finally the original reporters transcript attributed the prosecutions comment about killing defense counsel for us[ing] the W word to the judge. Defendant relied on this erroneous attribution to argue the trial courts misunderstanding of the law and insensitivity to the principles underlying Wheeler and Batson. Because the assertion is based on an incorrect factual assertion, we disregard it.

In sum, the totality of the circumstances does not give rise to an inference that juror 174 was excused based on group bias.

2. Miranda Claim

Defendant claims his statements to Officer Martinez should have been excluded because he was not given his Miranda rights by the first officer to whom he spoke and police did not scrupulously honor his invocation of those rights. We disagree.

a. Motion to Suppress and Testimony

When defendant made a motion in limine to exclude the statements, the court conducted an Evidence Code section 402 hearing. It generated the following testimony:

Between 11:30 p.m. and midnight the night of the incident defendant was at the police station. At about 2:15 a.m. Detective Jon Minard, who was investigating the officer involved shooting of Moore and not the robbery, spoke to defendant as a witness to the shooting. Minard denied knowing defendant was a suspect, although he was handcuffed in the interview room. Minard told defendant he was only investigating the shooting and did not read defendant his Miranda rights. The interview lasted about 45 minutes. Defendant never refused to speak with Minard or asked to leave or for a lawyer.

At about 4:00 a.m. Detective John Wickum attempted to interview defendant about the robbery. When he gave defendant his Miranda rights defendant said he understood them and told Wickum he did not want to speak to him. Wickum then stopped talking to him.

About 6:00 a.m. defendant knocked on the door of the interview room and asked Martinez for water. As he was drinking it defendant asked Martinez if anyone was going to talk to him. Martinez said he had been told defendant had asserted his Miranda rights. Defendant denied having said that and or being given his rights. Defendant told Martinez that if someone wanted to talk to him, he would gladly do so.

Martinez read defendant his Miranda rights, which defendant agreed to waive; defendant then proceeded to speak with Martinez. Martinez denied making contact with defendant or seeking to obtain a statement from him.

Thereafter Martinez told Minard some of the information he had obtained from the interview, specifically that defendant said Moore had had two guns. Minard then spoke again with defendant, confirmed Martinez had been given him the Miranda warning, and conducted a second interview based on what Martinez had told him.

After the hearing the prosecution acknowledged the first interview by Minard was not admissible due to the failure to give the Miranda warning. It also agreed Minards second interview could not come in because it referred to the first. Defendant objected to introduction of the statements to Martinez because, based on all the circumstances, they were not voluntary. He also argued the detectives were on the same team and knowledge that defendant asserted his right not to speak to one of them is imputed to the others.

The court denied the motion finding that Wickum gave defendant his Miranda warning, which defendant acknowledged he understood. When asked whether he wanted to talk to Wickum, defendant equivocally said, No. The court found by a preponderance of the evidence that defendant contacted Martinez by asking for water and then indicating he wanted to talk to someone. Although Martinez knew defendant had already been given his Miranda warning, he did so again and defendant [c]learly said he understood his rights. Further, defendant clearly, in a knowing, voluntary and intelligent fashion . . . waived his rights and agreed to speak to . . . Martinez. That agreement was unequivocal.

The court also found by a preponderance of the evidence that at no time during the interview was there any undue influence or coercion used to obtain defendants statement. When the judge listened to the tape of the interview, defendant sounded clear in his thinking and his responses, having the clear presence to minimize his involvement in the crime and maximize the involvement of . . . [Moore] . . . . [] And the Court could find no conceivable reason to believe that [defendant] was exercising other than a voluntary, knowing and willing desire to speak and to speak appropriately and clearly and on his own behalf to . . . Martinez . . . .

b. No Miranda Violation

In asserting his Miranda rights were violated, defendant focuses on the initial interview by Minard about the police shooting of Moore, where no Miranda warning was given, in connection with the fact he was in custody at the police station, in handcuffs, for several hours. He asserts that this gave him the false impression he was required to speak with police, or, at minimum, created confusion about the nature and scope of [his] Miranda rights once Wickum read him the warning. He maintains that his lengthy incarceration, apparently without food or water, plus use of multiple interrogators exacerbated the situation. From this he concludes that any waiver preceding his interview with Martinez was not freely given.

In reviewing Miranda issues on appeal, we accept the trial courts resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained. [Citations.] (People v. Smith (2007) 40 Cal.4th 483, 502.) The prosecution must show by a preponderance of the evidence that under the totality of the circumstances the defendants statements were voluntary. (People v. Holloway (2004) 33 Cal.4th 96, 114.) Here to, we independently review the record, deferring to any factual findings if supported by substantial evidence. (Ibid.) These include whether there were false promises or coercion by the police, the duration and location of the interrogation, and the defendants age, education, and mental health. (People v. Williams (1997) 16 Cal.4th 635, 660-661; see also People v. Thompson (1990) 50 Cal.3d 134, 166-167.)

The court, after listening to the Martinez interview, found defendant clearly and voluntarily waived his rights. After our review of the transcript we defer to those findings. There was no evidence of coercion or false promises. Further, nothing in the record supports defendants factual arguments. After defendant spoke with Minard, he was given Miranda warnings twice by two different detectives. There is no evidence that he was confused about those rights just because they were not read to him by Minard. In addition, as the court noted, defendant had two prior convictions and therefore had experience with law enforcement.

Defendants being in handcuffs carries no weight in these circumstances. In addition, we reject his conclusory assertion that use of several officers to interrogate him somehow made his waiver involuntary. As for the claim defendant was apparently without food or water, when he asked for water, Martinez brought it to him. Further, near the end of the interview, Martinez asked if he wanted more water and defendant declined. There is no information that he wanted food or that it was withheld. Rather, at the end of the interview Martinez told defendant to knock on the door if he wanted anything.

Finally, mere time in custody without more does not mean his statements were coerced. (See, e.g., People v. Maestas (1987) 194 Cal.App.3d 1499, 1505 [statements by a defendant in custody for over seven and a half hours not coerced; bulk of that time not spent in interrogation].) Here, defendant had been in custody only six to six and a half hours and Martinezs interview lasted less than 10 minutes.

Considering the totality of the circumstances, the evidence supporting the courts factual findings, the courts credibility determinations, and our independent review of the record, we conclude defendant waived his Miranda rights and spoke to Martinez knowingly, intelligently, and voluntarily.

3. Motion for Mistrial

After Grant testified, the prosecution called Carlos Flores, an investigator with the district attorneys office, who had Grant served with a subpoena for trial. After the subpoena was served, Grant called Flores, who taped their conversation. The transcript of the tape was given to the jury and the tape was played. During the conversation Grant told Flores he had grown up in the defendants neighborhood and knew defendants gang. He said the gang members knew him and his family and he was afraid to testify for fear gang members would hurt him and his family. He stated he would rather be found in contempt and go to jail than testify and subject he and his family to retaliation. He also said he did not remember anything, and that if he was forced to testify he was being made a victim all over again. He referred to defendant as a two time loser, a two time offender[ and] a murderer.

After the tape was played, based on Grant calling defendant a two time loser and a murderer and on the totality of the statements, defendants lawyer moved for a mistrial. He argued the tape should not have been admitted because it was inflammatory.

The court denied the motion on several grounds. First, the defense did not object before the tape was played. Second, the court had already ruled that defendants two prior convictions would be admitted. Third, the testimony was relevant as to Grants state of mind and admissible under at least Evidence Code section 1250 and also section 780, subdivisions (g), (h), and (i). Before defendant cross-examined Flores, the court advised the jury that defendants prior convictions did not relate to murder.

Defendant now argues the challenged statements have no basis in fact and Grant made them without any personal knowledge. He challenges their relevance and reiterates they were inflammatory and would have been excluded had Grant made them during his direct testimony. Finally, he claims the courts statement to the jury failed to cure the prejudice because it referred only to the murder comment.

In reviewing denial of a motion for mistrial we use a deferential abuse of discretion standard. (People v. Williams (2006) 40 Cal.4th 287, 323.) A mistrial should be granted only when the defendants chances of receiving a fair trial have been irreparably damaged . . . . (Ibid.) The court did not abuse its discretion in denying the motion.

First, as the court ruled, defendant did not make a timely objection. Thus the claim was forfeited. (People v. Christopher (2006) 137 Cal.App.4th 418, 424, fn. 6.) Further, [e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witnesss fear is likewise relevant to [his] credibility and is well within the discretion of the trial court. [Citations.], [Citations.] (People v. Gonzalez (2006) 38 Cal.4th 932, 946.)

Additionally, since Grant did testify his personal knowledge about what he told Flores was subject to cross-examination. And defendants two prior convictions were grounded in fact and the court had already ruled they would be admitted. The statement he was a murderer was not true, but the court advised the jury that was incorrect and that instruction was sufficient.

As to the inflammatory nature of the statement, the actual crimes defendant committed were egregious enough to convict him without any reference to murder. The record does not support a finding that defendants chance of a fair trial was irreparably damaged.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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