P. v. Calderon

Filed 2/6/08 P. v. Calderon CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. John Vernon Meigs, Judge. Affirmed.

Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

We affirm Antonio Aquino Calderons murder conviction for stabbing Humberto Gomez to death.

I

Calderon and others fought Gomez and his friend Alex Negrete near a Jack-in-the-Box on Century Boulevard in Inglewood. (We call appellant Calderon because his attorney captions the briefing as People v. Antonio A. Calderon.) The street fight ended with Calderon stabbing Gomez in the chest. The stab wounds killed Gomez. Calderons main issue on appeal is about racial bias during jury selection, which puts race into issue. It appears the combatants in this case were all Hispanic.

Count one of the information charged Calderon, Jose Luis Sanchez, Juan Avila, and Daniel Calderon with the murder of Humberto Gomez. (Pen. Code, 187, subd. (a).) The information alleged Calderon personally used a knife in the commission of the offense. (Pen. Code, 12022, subd. (b)(1).) Count two of the information charged the four men with assault with a deadly weapon by means likely to inflict great bodily injury to Alex Negrete. (Pen. Code, 245, subd. (a)(1).) Before the trial, the court granted Calderons motion to dismiss count two. (Pen. Code, 995.)

Calderon and Juan Avila were tried together. The jury could not reach a verdict and the trial court declared a mistrial. The jury deadlocked 11 to 1 in favor of guilt for Calderon, but split 10 to 2 in favor of a not guilty verdict for Juan Avila. The prosecution retried Calderon alone. The trial was in the Inglewood courthouse. This jury found Calderon guilty of second degree murder and found true the allegation he had personally used a deadly weapon in the offense. The court sentenced Calderon to 15 years-to-life plus an additional year for the weapons use enhancement. Calderon appeals.

II

Calderons first and main issue is a Batson/Wheeler challenge to the selection of his jury. When Calderon raised the Batson/Wheeler issue at trial, the prosecution had used eight of 14 peremptories to excuse African American members of the venire. Calderon argues a statistical disparity established a prima facie case of discrimination based on the race of the prospective jurors. Calderon asserts [h]appenstance is unlikely to produce this disparity. (Miller-El v. Cockrell (2003) 537 U.S. 322, 342.)

Calderon also says the trial court impliedly found a prima facie case of discrimination by asking the prosecutor to explain his last four challenges. Calderon concludes the trial court erred in failing to require the prosecutor to explain the first four peremptories and not just the last four. Calderon also claims the trial court erroneously required him to demonstrate a pattern of discriminatory challenges, when a reasonable inference of discrimination about one juror is all the law requires. (Johnson v. California (2005) 545 U.S. 162.) He claims reversal is required because he was deprived of his rights under the state and federal constitutions to equal protection and to be tried by a representative cross-section of the community. (U.S. Const., Amend. XIV; Cal. Const., art. I, 16; Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.)

With eight peremptory challenges comes the potential for eight appellate issues. Calderon, however, does not challenge the courts rulings on peremptory challenges to the last four prospective African American jurors. Rather, Calderon confines his challenge on appeal to the prosecutions first four peremptory challenges.

A

It is uncertain whether Calderon preserved this Batson/Wheeler issue for appeal. There was a lengthy exchange on this topic in the trial court, where Calderon was imprecise about the focus of his challenge. We recount the situation.

After two days of jury selection, the court and counsel met midmorning on a Friday to discuss evidentiary issues and pretrial motions. The court had excused the jury for that day. The jury was to return the following Monday. So there was no press of jurors in the hallway and no looming sense of urgency. Counsel and the court had time to sort through pending issues. When counsel asked how many of these matters the court wanted to take up that day, the court said I would like to hear them all now.

Calderons counsel said, I would like to start with a Wheeler motion. This caught the court and prosecutor by surprise. Through counsel, Calderon described his Batson/Wheeler motion. The court had followed the jury selection closely and had taken detailed notes, plainly, for it immediately began filling in facts and correcting Calderons misstatements. After reviewing this jury selection, the court announced, Now, in exercising challenges, I certainly didnt notice anything that appeared to me that the challenges were being made based on race. (Italics added.)

The court continued to inquire. It asked Calderons counsel for more specificity. Calderons counsel responded, and the dialogue continued for another dozen transcript pages.

The issue is whether Calderon at this point was challenging the prosecutors first four strikes, the last four, or all eight. Calderon raised a generalized objection, which the court rejected. The court invited Calderon to continue arguing, and in response Calderon was indefinite as to the number of strikes he thought the court should examine. Calderons first rejoinder related to three strikes against African American men, as well as to an unspecified number of strikes to numerous African American women. In another rejoinder, Calderons counsel referred to nine out of the 14 challenges that we have had . . . . In the next rejoinder, Calderons only mention of a number was four. Then Calderon again mentioned four challenges. Then Calderon mentioned seven in a row.

At this point the court responded, So Im assuming that until [the prosecutor] made the seventh challenge you didnt feel there was a pattern. The court then turned to the prosecutor and asked, as to that last juror . . . , what was the basis of that challenge? The prosecutor explained the basis for his last challenge, which is not at issue in this appeal.

Then the court asked the prosecutor about his penultimate challenge. The prosecutor gave his reasons, which again are not at issue in this appeal. Then the court asked the prosecutor about his reasons for his third-to-last challenge. The parties discussed this challenge again, one not at issue in this appeal. Then the court asked the prosecutor about reasons for his fourth-to-last challenge, and the prosecutor responded. This strike also is not an issue in this appeal.

At the conclusion of the prosecutors fourth explanation the court said Okay. [] The court is satisfied certainly as to the last four challenges. The one that preceded the defense motion and the three that preceded that[,] that there were legitimate reasons that were based on other than race for the People to exercise a peremptory challenge. So the motion under Wheeler will be denied.

At this vital moment, Calderons input was concise and conclusive: Thank you. After hearing about the last four strikes, Calderon raised no objections to the first four strikes, or indeed any other issues relating to Batson/Wheeler or jury selection. Calderon seemed satisfied with the scope of the courts inquiry. The court moved on.

Were this forfeiture issue decisive, we would have to decide whether Calderon truly had preserved review of the first four strikes. This issue is not decisive, as will appear, and so we proceed on the assumption of no forfeiture.

B

We reject Calderons argument that the trial court used an incorrect legal standard to evaluate the Batson/Wheeler motion.

Proper Batson/Wheeler analysisinvolves three steps. 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. 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. Third, if a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful discrimination. (Johnson v. California, supra, 545 U.S. at p. 168, internal citations and quotation marks omitted.)

Calderon says that, at the first step of this analysis, the court incorrectly demanded a pattern of racial exclusion in this case. (See People v. Arias (1996) 13 Cal.4th 92, 136 [a Wheeler violation does not require systematic discrimination].)

The trial court did not commit this error. The courts comments in context show that it found Calderon had not established a prima facie case that the totality of the relevant facts gave rise to an inference of discriminatory purpose. In essence, Calderon lost his motion at step one.

The court and counsel considered Calderons motion. The judge rejected his Batson/Wheeler suggestion of race-based jury selection: Now, in exercising challenges, I certainly didnt notice anything that appeared to me that the challenges were being made based on race. (Italics added.) After directly rejecting Calderons prima facie case, the trial judge added, So perhaps, Ms. Allen [attorney for Calderon], youll need to specify which challenges you believe were made on race because I dont think there has been a pattern established. These statements were proper. While not essential, a pattern can be probative. To be sure, the ultimate issue to be addressed on a Batson/Wheeler motion is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. But in drawing an inference of discrimination from the fact one party has excused most or all members of a cognizable group, a court finding a prima facie case is necessarily relying on an apparent pattern in the party's 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. (People v. Bell (2007) 40 Cal.4th 582, 598 fn. 4 [internal quotation marks and citations omitted].) The trial courts comments thus showed sensitivity to the law, not ignorance of it. Calderon has not shown the trial court applied an incorrect legal standard.

Calderon also suggests the trial court impliedly found a prima facie case as to the last four challenges. This is incorrect. When a trial court asks the prosecutors to justify their challenges, this can imply a finding of a prima facie case of discrimination in the absence of a contrary comment by the trial court. (See, e.g., People v. Arias, supra, 13 Cal.4th at p. 135 [When the trial court solicits an explanation of the challenged excusals without first indicating its views on the prima facie issue, we may infer an implied prima facie finding.].) If, on the other hand, the trial court asks for an explanation but expresses doubt or reservations whether a prima facie case has been made out, then the courts expression of doubt negates any inference that it made an implied finding either way about the existence of a prima facie case. (Id. at pp. 135, 134 [no implied finding of a prima facie case where court said I have questions about their making a prima facie showing, but I want you to go on.].) Here the court asked the prosecution to explain its decisionmaking only after the court stated flatly, Now, in exercising challenges, I certainly didnt notice anything that appeared to me that the challenges were being made based on race. I certainly didnt notice is not doubt or reservation. It is flat rejection.

At the outset, the trial court said there was nothing to the Batson/Wheeler claim. At the end, the trial court concluded there was nothing to the Batson/Wheeler claim. In the middle, the trial court said there was nothing to the Batson/Wheeler claim. The trial court ruled there was nothing to the Batson/Wheeler claim. The trial court used the correct law to make these decisions.

C

Calderon claims the trial court erred by failing to make the prosecutor justify the first four strikes. The trial court, however, effectively flunked Calderon at the first step of the three-step Batson/Wheeler analysis. There was no need to go further. Calderon complains about this ruling, but to no avail. He fails to establish error. We reject his attack.

Calderons Batson/Wheeler argument is strictly statistical. But his briefing does not give the basic statistical data to fuel this type of statistical inference. We do not know how large the jury pool was in the courtroom that day, how many eligible African Americans there were in that pool, or how many African Americans finally ended up on the jury. We do not know what percentage of African Americans the prosecution struck, nor do we know what percentage of non-African Americans the prosecution struck. So no one can say whether there was a large or small or even any disparity between the rate at which the prosecution struck African Americans compared to the rate at which the prosecution struck non-African Americans. (Compare Miller-El v. Cockrell, supra, 537 U.S. at p. 331 [A comparative analysis of the venire members demonstrates that African Americans were excluded from petitioners jury in a ratio significantly higher than Caucasians were. Of the 108 possible jurors reviewed by the prosecution and defense, 20 were African American. Nine of them were excused for cause or by agreement of the parties. Of the 11 African American jurors remaining, however, all but 1 were excluded by peremptory strikes exercised by the prosecutors. On this basis 91% of the eligible African American jurors were removed by peremptory strikes. In contrast the prosecutors used their peremptory strikes against just 13% (4 out of 31) of the eligible non-African American prospective jurors qualified to serve on petitioners jury.].)

Calderon relies only on the fact that the prosecutor used eight of 14 strikes against African Americans. But that lone datum cannot establish a valid statistical inference of discrimination. If you reach into a jar 14 times and pull out eight green balls and six non-green balls, does that prove you are aiming to pick green balls instead of choosing at random? It depends on the population of balls in the jar. If the jar contains a very low percentage of green balls, odds are you are consciously selecting greens. You are discriminating. But if the balls in the jar are mostly green, drawing eight green balls in 14 draws could be blind chance. In Inglewood, it is possible that the jury pool had a higher percentage of African Americans than jury pools elsewhere. Eight out of 14 cannot create an inference one way or the other without data on the universe of candidates. Calderon did not put those data in the record. Had this information helped his argument, presumably Calderon would have made this record.

Calderon notes there were only two African Americans in the box after the prosecutor struck the 14 strikes. This was partly due to the fact that Calderon himself struck three African Americans. Calderon cannot fault the prosecution for his own strikes. Effectively, then, the prosecutor left five African Americans on the jury at the time of Calderons motion. Without data on the total pool, we cannot begin to make a valid statistical inference about prosecutorial discrimination. Neither can Calderon.

Another way to think about this situation is to imagine two different Inglewood courtrooms. In one, 12 jurors are in the box, and a large number of prospective jurors sit in the courtroom audience. The prospective jurors in the audience are overwhelmingly not African American. In the other courtroom, the audience of prospective jurors overwhelmingly is African American. The prosecutors action of using eight of 14 strikes against African Americans in the box could have very different meaning in these two different rooms. Information that African Americans were very scarce in the audience would tend to make the prosecutions actions appear more discriminatory. Information that African Americans were very numerous in the audience would tend to negate that inference of discrimination.

The trial judge was sitting in the actual Inglewood courtroom in which Calderons prosecutor used the 14 challenges. The trial judge watched this conduct carefully, saw the jury pool, and said, I certainly didnt notice anything that appeared to me that the challenges were being made based on race. Calderon gives us no reason to disturb this finding on appeal.

In sum, we have no valid reason for overturning the trial courts denial of Calderons Batson/Wheeler motion. We find no error.

III

Calderon also appeals from the trial courts refusal to give a jury instruction he requested. The pertinent facts begin with the police arriving at the fight scene near the Jack-in-the-Box. Two officers got out of the car with guns drawn. The officers ordered the two groups of men to stop fighting and to come to the car. Calderon, his brother Daniel, Juan Avila, and Pete stopped fighting and walked over to the car. Negrete noticed his friend Gomez had blood on his chest. Gomez told Negrete he would be okay and that he wanted to leave. They took a few steps in the opposite direction when the officers repeated their order to come to the patrol car. Gomez and Negrete then walked over and placed their hands on the patrol car as ordered. Then Gomez wobbled, staggered, fell, and died.

Based on this evidence, Calderon requested a special instruction regarding Negretes and Gomezs attempted flight from the scene as it might bear on Negretes believability as a witness. Calderon suggested the evidence that Gomez and Negrete were attempting to leave showed their guilty knowledge that they started the fight. Calderon argued he needed the instruction to bolster his defense theory that he was guilty only of voluntary manslaughter based on unreasonable self-defense or provocation/heat of passion.

Calderon proposed the following special instruction: The flight, or attempted flight, of a person immediately after the commission of a crime is a fact which, if proved, may be considered by you in light of all other proved facts in deciding the question of the believability of the person. The weight to which such circumstance is entitled is a matter for the jury to determine.

The court commented it had no sua sponte duty to instruct on the significance of the absence of flight and no duty to so instruct if requested by the defense. This seems kind of like that. On steroids. Im not going to give it.

Calderon claims this was error. He argues he was entitled to an instruction pinpointing his theory of defense. (People v. Mincey (1992) 2 Cal.4th 408, 437; People v. Sears (1970) 2 Cal.3d 180, 189-190.)

No authority dictated Calderons instruction. Penal Code section 1127c does not apply. It concerns jury instructions about flight, but it applies only where evidence of flight of a defendant is relied upon as tending to show guilt . . . . That section requires the court to instruct the jury that flight is not sufficient in itself to establish [a defendants] guilt. This language would tend to protect a fleeing defendant. Here the supposed flight was not by defendant Calderon but rather by Humberto Gomez and Alex Negrete. Gomez and Negrete were not defendant[s]. The statutory terms do not apply. Moreover, the instruction Calderon proposed omitted the protection for the fleeing person that section 1127c includes. Calderons proposed instruction thus was partial and faulty. Penal Code section 1127c was not authority for Calderons proposed instruction.

Calderon also seeks authority for his proposed instruction from People v. Henderson (2003) 110 Cal.App.4th 737, 741-744. The Henderson decision does not apply for two reasons. First, the comments from Henderson on which Calderon relies are dicta. Hendersons holding was that the trial judge had no duty sua sponte to craft a flight instruction for the defense on that cases facts. (Id. at p. 744.) That holding does not assist Calderon. Second, the Henderson case supposed a properly formulated instruction. (See id. at p. 742 [The instruction goes on to limit the jurys use of the evidence in that it advises the jury that flight alone cannot support a finding of guilt.].) Calderons proposed instruction left out this language.

In addition, we are wary of joining with Henderson in any respect. Drawing a possible inference of a guilty mind from flight is a matter of common sense. Attorneys are always free to argue common sense inferences from the proof in their closing argument. Judges, on the other hand, rightly can aspire to keep jury instructions plain, simple, and impartial. (See People v. Mincey, supra, 2 Cal.4th at p. 437 [trial court must refuse an argumentative instruction, that is, an instruction of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence].)

Calderon rightly argues that he was entitled to an instruction pinpointing his theory of defense. As is pertinent here, Calderons theory of defense was that he was guilty only of voluntary manslaughter based on unreasonable self-defense or provocation/heat of passion. The court indeed gave instructions about voluntary manslaughter based on unreasonable self-defense or provocation/heat of passion. But defendants cannot require a court to give an instruction that would have the court invite the jury to infer the existence of his version of the facts, rather than his theory of defense. (People v. Mincey, supra, 2 Cal.4th at p. 437.)

The trial court did not err by declining to give Calderons faulty instruction.

IV

In imposing sentence the trial court did not orally order Calderon to pay a $20 court security fee. (Pen. Code, 1465.8, subd. (a)(1).) However, the $20 court security fee appears on Calderons abstract of judgment.

Calderon asserts the abstract of judgment must be amended to delete the requirement he pay the $20 court security fee. He points out the crime of which he was convicted occurred on May 31, 2003 and the statute imposing a $20 court security fee on every conviction for a criminal offense (Pen. Code, 1465.8, subd. (a)(1)) went into effect months later on August 17, 2003. (Stats. 2003, ch. 159 (A.B. 1759) 25, 27.) Accordingly, Calderon argues to impose the fee in his case would violate Penal Code section 3s presumption against retroactivity, as well as state and federal constitutional prohibitions against ex post facto laws.

The California Supreme Court rejected these arguments in People v. Alford (2007) 42 Cal.4th 749, 753-759. Accordingly, we find no error.

V

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILEY, J.*

We concur:

PERLUSS, P. J.

WOODS, J.

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* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.