P. v. Taylor

Filed 1/29/08 P. v. Taylor CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

After a jury trial, appellant Jerry Thomas Taylor, Jr. was found guilty of driving a vehicle while under the influence of drugs or alcohol causing injury (Veh. Code,  23153, subd. (a)); possession of a controlled substance, methamphetamine (Health & Saf. Code,  11377, subd. (a)); and the misdemeanor offense of being under the influence of a controlled substance, methamphetamine (Health & Saf. Code,  11550, subd. (a)). The jury also found that appellant personally inflicted great bodily injury upon one of his passengers (Pen. Code,  12022.7, subd. (a)).

On appeal, appellant argues that the prosecutor failed to rebut the prima facie showing that racial bias motivated the use of his peremptory challenges to excuse three minority jurors. He also claims the prosecutor committed prejudicial misconduct in closing argument. We reject both of these contentions and affirm.

II.

Facts and Procedural History

At approximately 8:40 a.m. on December 9, 2004, California Highway Patrol Officer Michael Mirabel was dispatched to the scene of a traffic accident on Pacheco Boulevard in Contra Costa County. An eyewitness to the accident identified appellant as exiting the drivers seat immediately after the accident and putting one of two female passengers in the front seat. Both passengers had sustained injuries.^[1] Based on his investigation, Officer Mirabel concluded that appellants car failed to make the curve, ran off the road, hit a pole, and continued to hit a second pole with the right front of the car. It was raining at the time of the accident.

Officer Mirabel saw appellant at the scene, sitting on the curb. He had a bloody nose. Mirabel spent five to ten minutes with appellant before appellant was taken to the hospital. Based upon Officer Mirabels experience with methamphetamine users, appellant appeared to be under the influence of methamphetamine. His speech was rapid, his movements were jerky, and his pupils were dilated.

Justin Turnbull worked in the building next to the crash scene. He went outside after hearing the crash and saw that appellant, the driver of the car, was bleeding from his nose. Appellant asked for permission to use the washroom in Turnbulls building. Later, Turnbull noticed a piece of dark plastic on a cross-beam in the stairwell leading to the bathroom and told police about it. The police recovered the plastic and saw that it was wrapped around a small baggie containing a white crystal-like substance. The white substance in the bag turned out to be 1.08 grams of methamphetamine. Appellants blood was on the bag.

Appellant was taken to John Muir Medical Center for treatment. At the hospital, he was extremely combative and verbally abusive toward staff. He screamed repeatedly, youre not taking my blood. After being physically restrained, appellants blood was taken. Both methamphetamine and amphetamine were found in appellants blood. A forensic toxicologist testified that the level of methamphetamine found in appellants blood was in the range where it could affect ones ability to drive.

Appellants defense was that he ingested the methamphetamine after the accident, so he was not driving under the influence. In making this argument, counsel relied on the fact that after the accident appellant left the scene with the drugs and he was in the bathroom alone . . . .

On June 2, 2006, a jury found appellant guilty as set out in the introductory section of this opinion. The court denied probation and sentenced appellant to a total term of five years in state prison. The five-year sentence was computed as follows: The court imposed the middle term of two years for driving under the influence causing injury (Veh. Code,  23153, subd. (a)), with a consecutive three-year term for the great bodily injury enhancement (Pen. Code,  12022.7, subd. (a)). A concurrent middle term of two years was imposed for possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)); and a six-month term for the misdemeanor offense of being under the influence of a controlled substance, methamphetamine (Health & Saf. Code,  11550, subd. (a)).

This appeal followed.

III.

Discussion

A. Discriminatory Use of Peremptory Challenges

Appellant first contends the trial court should have granted his Batson-Wheeler motion due to the prosecutors alleged race-based exercise of peremptory challenges. (See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).^[2]) We find no error.

A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue. [Citation.] (People v. Jenkins (2000) 22 Cal.4th 900, 993.)  [T]he trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination. [Citations.] (People v. McDermott (2002) 28 Cal.4th 946, 971.)

The record in this case reveals that the prosecution exercised two peremptory challenges without objection. When the prosecution exercised its third peremptory challenge against Ms. C., an African-American woman, appellant objected and the court asked the prosecutor to justify the challenge. The prosecutor explained that he exercised the peremptory challenge because Ms. C.s son was a cocaine addict and she could be sympathetic towards the defendant . . . . He also explained that Ms. C. had testified that she did not drive and that some knowledge of driving was essential to understanding the anticipated expert testimony in the case. The court denied appellants motion indicating that if the prosecution really believe[s] that someone who doesnt drive would be a less valuable juror in this kind of case, thats a very honest concept, and the court was not inclined to second-guess it.

The prosecution exercised its next peremptory challenge to excuse Mr. T., a minority male juror. The court asked for an explanation for the challenge. The prosecutor explained that Mr. T. was a medical marijuana user, and [t]his is a case about possession of drugs. The court accepted the prosecutors justification, noting Ive tried a lot of cases where the DA knocked off everybody that said they were in favor of medical marijuana, and so I have to take judicial notice of the fact that its not uncommon for prosecutors to do that so therefore I have to find that I think his reasons are given honestly.

The prosecution exercised another peremptory challenge to excuse Ms. B., who appeared to be of Asian ancestry. The court requested an explanation for this challenge. The prosecutor explained that Ms. B. was unhappy with the police when she was a victim of a hit-and-run accident. Ms. B. had indicated her frustration with the police because no one will return calls. He also explained that she wore a hat to court and it was pulled down so I could barely even see her eyes, and . . . theres no hats to be worn in court and to me its somewhat disrespectful to the court. The prosecutor elaborated his belief that the hat was indicative of her attitude towards this proceeding, which I thought was casual and kind of noninterested. In denying the Batson-Wheeler motion, the court agreed with the prosecutor, observing there was an attitude sort of conveyed by Ms. B. who was vigorously chewing gum the whole first hour or so that she was here . . . . The court indicated, I wouldnt have left [Ms. B.] on with the chewing gum and the hat and so forth.

Appellant contends [t]he prosecutors purported justifications for the challenges in question were legally and factually inadequate to rebut the prima facie showing; [and] the trial court failed to discharge its duty to inquire into and carefully evaluate the explanations proffered by the prosecution.

The trial courts ruling on this issue is reviewed for substantial evidence. [Citation.] (People v. McDermott (2002) 28 Cal.4th 946, 971.) We review a trial courts determination regarding the sufficiency of a prosecutors justifications for exercising peremptory challenges  with great restraint.  [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial courts ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.] (People v. Burgener, supra, 29 Cal.4th at p. 864.)

Here, the prosecutor gave detailed, specific reasons for excusing Ms. C., Mr. T. and Ms. B. and the trial court accepted the reasons as genuine and not based on group bias. Because each of the prosecutors stated reasons was inherently plausible and supported by the record, the trial court was not required to make detailed findings. (People v.Reynoso (2003) 31 Cal.4th 903, 923, accord People v. Ward (2005) 36 Cal.4th 186, 200.) Furthermore, nothing in the record indicates that the trial court did not make a sincere and reasoned effort to evaluate the genuineness of the prosecutors proffered explanations. (People v. Burgener, supra, 29 Cal.4th at p. 864.) Moreover, substantial evidence supports the courts conclusion that the prosecutors reasons for excusing the three prospective jurors were legitimate in the sense of being nondiscriminatory, that is, not based on group bias. (People v. Reynoso, supra, 31 Cal.4th at p. 924; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1101.) Accordingly, we reject appellants contention that his Batson-Wheeler motion should have been granted.

B. Prosecutorial Misconduct

Appellant cites to several instances during closing argument where he contends the prosecutor improperly argued that defendant and his attorney concocted a false defense.

During argument, the prosecutor suggested that appellant and his attorney had tried a few different defenses, e.g., appellant was not the driver, appellant was not under the influence, but realized that the prosecution had effectively rebutted each one, leaving the defense with no choice but to fabricate a dishonest defensethat appellant ingested the methamphetamine after the accident. Appellant objects to the following statements made by the prosecutor describing the defense strategy: All right. Well, whats left over? I dont know. Guess Ill have to pick the last sort of hooray, see if I can take a shot down the field, throw up a hail Mary. Oh, used after I was driving. [] Why didnt you hear that from the beginning? Why didnt the defense attorney stand up and say to you

At this point, defense counsel objected to the comments as improper argument. The court admonished the jury to [d]isregard that argument because the order in which a party presents its evidence does not indicate anything . . . .

The prosecutor continued, Ladies and gentlemen, why was it on day 3 of this trial this story started to come out? Defense counsel objected and the court again sustained the objection, indicating the jury was to [d]isregard that argument. The prosecutor continued, apparently well find out what the real story is finally when she [defense counsel] gets up to argue . . . .

Appellant contends the above-referenced statements by the prosecutor were misconduct because they attacked defense counsels personal integrity and suggested she fabricated a defense. A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] (People v. Hill (1998) 17 Cal.4th 800, 832.) It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense, or to imply that counsel is free to deceive the jury, although a prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. (People v. Bemore (2000) 22 Cal.4th 809, 846 [Bemore].)

When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred, keeping in mind that  [t]he prosecution has broad discretion to state its views as to what the evidence shows, and what inferences may be drawn therefrom  [citation], and that the prosecutor may vigorously argue his case . . . .  (People v. Welch (1999) 20 Cal.4th 701, 752.) Second, if misconduct has occurred, we determine whether it is reasonably probable that a result more favorable to the defendant would have occurred absent the misconduct. [Citation.] (Id. at p. 753.) The cases where misconduct and prejudice have both been found arose from extreme instances of prosecutorial misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1220.)

In Bemore, supra, 22 Cal.4th at pages 845-846, the California Supreme Court addressed a claim of prosecutorial misconduct arising from comments in closing argument that the appellant contended had impugned the integrity of his defense counsel, by accusing defense counsel of concocting various defenses as evidence unfolded at trial, and impl[ying] counsel knew such shifting defenses were untrue. (Id. at p. 845.) The court first rejected these claims as waived, because there had not been timely objections to the prosecutors arguments in this regard. (Id. at pp. 845-846.)

The Bemore court also rejected these claims on their merits, noting the prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. [Citations.] (Id. at p. 846.) In finding no misconduct, the court noted the record supports the prosecutors suggestion in closing argument that counsel could not reasonably adhere to prior claims . . . and that incriminating evidence introduced at trial . . . had undermined the defenses original theories. (Id. at p. 847.) The court explained that a prosecutor was entitled to employ[] a rhetorical device calculated to focus the jurys attention on strong circumstantial evidence of guilt and on any corresponding weaknesses in the defense case. (Ibid.)

Similarly, the comments made by the prosecutor in this case urging the jury to view the defense strategies with skepticism, while not exemplary, were not so egregious as to deprive defendant of a fair trial. Secondly, to the extent there was misconduct, there was no prejudice to appellant because the court properly and adequately admonished the jury. (See People v. Cummings (1993) 4 Cal.4th 1233, 1302 [any implication in the argument that defense counsel engaged in deception was removed by the trial courts admonition . . . .].)

IV.

Disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1] One of the passengers testified at trial but claimed she did not remember anything about the accident. The other passenger was served with a subpoena but failed to appear.

^[2] The use of peremptory challenges to remove 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 Constitution ([Wheeler, supra,] 22 Cal.3d [at pp.] 276-277 . . . ) as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution ([Batson, supra,] 476 U.S. at p. 89 . . . ). (People v. Burgener (2003) 29 Cal.4th 833, 863.)