P. v. Ary

Filed 5/29/08 P. v. Ary CA1/2

Opinion following remand by Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

James Ary, Jr. was convicted of first degree murder (Pen. Code, 187)^[1], carjacking ( 215), robbery ( 211) and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The jury found true the special circumstances that the murder occurred during the commission of a carjacking, a robbery and while lying in wait. ( 190.2, subds. (a)(15), (a)(17).) It also found true a firearm use allegation. ( 12022.5, subd. (b)(1).)

Ary was sentenced to life without the possibility of parole. A consecutive, determinate sentence of 16 years and four months was also imposed.

In an earlier opinion (People v. Ary (2004) 118 Cal.App.4th 1016) we held that Ary was deprived of his constitutional right to a fair trial because the trial court did not order a competency hearing pursuant to section 1368. We remanded the matter for a retrospective competency hearing. That hearing has been held. At its conclusion, the trial court found that Ary was competent to stand trial. This finding has not been challenged. We now consider the remaining issues raised by Ary on appeal.

These issues are: (1) whether the trial court erred in denying Arys motions under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky

(1986) 476 U.S. 79 (Batson), and (2) whether the trial court erred in ordering the disclosure of defense investigative reports of interviews of prosecution witnesses.

Although we conclude the trial court erred in ordering the disclosure of this material, we find this error was not prejudicial. Accordingly, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Just before midnight on August 14, 1997, Ronnie Ortega, a native of Guatemala who worked as a chef at San Pablo Casino, was shot and killed while stopped at a stoplight at an intersection just off San Pablo Avenue.

A witness to the shooting saw two teenagers standing at a bus stop near the intersection. He saw and heard an older man across the street from the teenagers yelling to them that he wanted to get a Cadillac. The witness identified defendant as the older man he saw. He also identified defendant as the person who shot Ronnie Ortega at the stoplight.

A second witness, who lived near the 7-Eleven, testified at trial that he was walking away from the store when he heard a gunshot. He ran away from the shot, and as he did so he heard more shots. He saw the shooter firing at someone in a dark colored car stopped at a red light. When he first saw the shooter, he was in front of the left rear wheel of the car and was running beside the drivers side of the car, firing his gun. This witness saw the shooter try to open the door of the car from the outside, and then reach through the drivers window to unlock the door. The shooter grabbed the driver, said, [g]et out of the car mother fucker, and then threw him on the ground. He kicked the driver three times and then got in the car. Two other men ran toward the car, tried to get in the passenger side and could not because the door appeared to be locked. The shooter drove away and the two men ran off in the other direction. The witness could not identify the shooter.

Reynaldo Ortega died as a result of seven gunshot wounds to the left side of his face, the left side of his chest and the left arm. The wounds were consistent with close range gunshots. Five projectiles were removed from his body during an autopsy. One of the projectiles was associated with a gunshot wound that entered the left abdomen and traveled through the body from left to right in an upward direction. This was consistent with the victim sitting in the drivers seat and the projectile passing through the closed drivers seat window while the victim leaned to his right away from the gun.

Cerbrena Crenshaw, an acquaintance of defendants, testified that on the night of the shooting, defendant came to her apartment. He seemed to be mad or disturbed about something. He was mumbling and Crenshaw could not understand exactly what he was saying. He asked her for bullets for a .38 caliber gun. He told Crenshaw that he had handled his business and he had to smoke a mother fucker. He said the man had a nice car. He also said they went down there to get a car and made a comment like, Motherfuckers around here keep insulting my intelligence.

Several days after the murder, acting on tips received, the police interviewed a fifteen-year-old named Darius Mason. Mason said he and a friend, Worsten Andrews, had talked to defendant about getting a car to do some robberies. Mason told the police that defendant had been the person who shot Ortega.

On August 17, police officers arrested defendant. The police also arrested Worsten Andrews. In an interview with the police, Andrews, like Mason, said that defendant was the person who shot Ortega. Andrews explained that he, Mason and defendant planned to commit a carjacking and as they were walking, defendant became separated from them. When Ortegas car pulled up at a traffic light, defendant went to the side of the car and shot at it.He and Andrews ran away and defendant drove off in the car.

Both Mason and Andrews testified at trial. At the time of trial, Andrews was 19 years old. He had pled guilty to manslaughter, attempted carjacking, assault with a deadly weapon and burglary resulting from his involvement in Ortegas murder. He was sentenced to 11 years and 6 months in prison. Mason was fifteen at the time of Ortegas murder and eighteen at the time of trial. He was in custody at the California Youth Authority, after having admitted the allegations of murder, robbery and carjacking with regard to Ortegas murder.

Andrews testified that during the evening of August 14, 1997, he and Mason drank and smoked marijuana together. At some point, defendant joined them in Masons apartment, where the three of them continued to drink and smoke marijuana. Andrews and Mason discussed the need to get some money and eventually they made a plan to steal a car so they could commit robberies. They decided to go to a nearby area known as Hilltop and steal a car. Andrews saw Mason with a gun on their way to Hilltop. He did not know if it was defendants gun and he did not see defendant give the gun to Mason. After an unsuccessful attempt to hotwire a car, they attempted to carjack a car. By this time, Mason had given Andrews the gun. Andrews pointed it at a woman whose car they intended to carjack and when she screamed, Andrews tried to strike her in the head. The gun went off and Mason and Andrews ran back to Masons apartment.

When they returned to the apartment, they and the defendant decided to try again to steal a car. Mason gave the gun, which belonged to defendant, back to defendant. Andrews was not sure whether defendant asked for the gun. He testified, on cross-examination, that he did not remember if Mason gave the gun back to defendant. He recalled that at some point the gun was on a table in the apartment. At some point, there was a fight in the apartment, and Mason brandished the gun. Defendant took it away from him. Andrews testified that he understood that defendant carried a gun for protection because a gang known as 14, the Northern Mexican Gang, was looking for him.

Andrews, Mason and defendant left the apartment and walked to a nearby 7-Eleven to buy more alcohol. Andrews testified that a week before the trial, he spoke to the district attorney and a police officer about the murder. He might have said that, before going to the 7-Eleven, defendant might have said, Let me show you how its done? He could not recall whether defendant had actually made this statement.^[2]He did remember defendant calling Mason a stupid. He also recalled defendant saying, Lets go to the store.

The three men stopped at a bus stop across the street from the 7-Eleven while defendant spoke to a friend who was driving by. Andrews and Mason crossed the street, and defendant continued to speak to his friend.

Andrews observed defendant on the other side of the street gigglin and laughin to hisself. I guess it was behind the conversation he was having in the car. Defendant then began to follow the two men across the street. Half-way across, he stopped at the center island and began to push the walk button. Andrews and Mason began to tease defendant for doing this. The light turned red and a car stopped at the light. As defendant started to walk across the street, the car kind of rolled. Defendant put his hand on the car, stepped over to the drivers side and began to argue with the driver. Andrews could not hear the driver, only defendant. He testified that he did not remember telling the defense investigator that he believed the driver yelled fuck you or that defendant told the driver to get out of the car. Andrews saw the man kind of bend down. And thats when we started hearing the gunshots. He also testified that he didnt see the man bend down until after the interior lights of the car came on. On cross-examination, Andrews stated that he saw the driver bend down and reach as if toward the floorboard before the shots went off. He also testified that when he saw the man inside the car bending over, the light inside the car was on. The light was on inside the car when defendant walked up to it. From a position at the drivers window, defendant began firing a gun into the car.

Mason and Andrews ran over to the car. The passenger side of the car was locked and they couldnt get in it. The driver had either fallen out of the car or been pulled out of it. Defendant drove off in the victims car, honking the horn as he did so. Andrews and Mason ran after him but he kept on driving. Later that evening, they met up with defendant. They discussed the homicide, and Andrews and Mason were kind of joking around. Defendant, however, was more or less just quiet, sitting there eating. They cleaned the car out and Andrews and Mason drove it before leaving it on the street near a school in Richmond.

Mason also testified at trial. He was equivocal about his agreement to testify truthfully as a condition of his plea. He stated that he was a liar and that he made up stories. He also claimed that his testimony at the preliminary hearing was only somewhat truthful and that he had been manipulated and coerced by the police after his arrest to make certain statements.

Mason testified that he and Andrews had gone to Hilltop to steal a car and that he found a gun in the couch at his house and took it with him. He knew it was defendants gun. He gave the gun to Andrews when he asked for it. He did not recall defendant saying something like [l]et me show you how its done after he and Andrews were unable to steal a car. At the preliminary hearing, Mason testified that defendant was angry at Andrews for the failed carjacking and that defendant had said he was fixing to do it.

Mason testified it was dark when the shooting occurred. He and Andrews were standing on the sidewalk when they saw defendant shoot Ortega. Mason denied that they had any plan to steal a car at this point. Immediately before the shooting, defendant was crossing the street toward Mason and Andrews. He stopped to push the walk button and Andrews and Mason laughed about this.

Mason did not notice the car that stopped at the red light. He did not hear any conversation. Mason testified on cross-examination that although he heard gunshots he did not see defendant shooting into the drivers side of the car, because Andrews was in front of him. He did not hear any conversation between defendant and the driver before the shooting. After the shooting, he and Andrews ran up to the car but could not open the doors, so they ran off. They later met defendant at Masons apartment.

Defendant testified that he killed Reynaldo Ortega. His defense was that he had been exposed to numerous incidents of violence while growing up in North Richmond and was afraid of people trying to kill him. He testified that he saw a close friend shot and killed. He was robbed at gunpoint and hit with a gun during the robbery. In 1993, he was shot by a friend after they argued about a card game. A psychologist who examined defendant testified that defendant became paranoid after he was shot and was afraid people were going to kill him.

A year later, he shot a man in the stomach and was sent to prison. After he returned from prison, he was afraid that a gang in Richmond wanted to kill him. Several people warned him to watch his back. He bought a gun to protect himself.

Two of defendants friends, Little Pete and Butter, were shot to death in the summer of 1997.

On the night Ortega was killed, he was at a friends apartment drinking and playing dominoes. He had his gun with him. He put the gun on a table. He felt he needed protection from the 14s, a gang in Richmond. He did not discuss stealing a car with Andrews or Mason. He remembered Mason taking his gun from the table, although he didnt see him take it. He assumed hed taken it because hed had problems on the street before. He recalled that Mason returned his gun, although he could not recall whether he handed it to him. He took the gun back from Mason when he used it to break up an argument. He put it in his pocket at that point. He was drunk at this point. He did not recall either of them telling him about going to Hilltop. They left the apartment to get some more alcohol. On the way to 7-Eleven, he stopped to talk to some people in a car who called his name. After these people drove away, he started walking toward 7-Eleven, where he thought Mason and Andrews were. He heard them calling his name. He began to walk toward them. He remembers pausing on the concrete island and thinking about the people he was talking to in the car earlier and that made me aware that -- that I could have been blown away at that time. While he stood there he was not aware of Mason and Andrews yelling to him. He began to walk towards them. His hands were in his pockets, on the gun. As he was doing so, [a] car pulled up. And when the car pulled up, I seen a man reached over. And at that point -- I feared for my life at that point. He thought the man was reaching for a gun. He was not trying to take the mans car. Defendant began shooting. He pulled the trigger several times. The gun jammed and he saw the man falling out of the car. He did not remember how the man fell out. The car was rolling, and he tried to stop it. The car came to a stop and he was seated in the drivers seat. He was in shock. Mason and Andrews came up. He came to his senses. There were cars behind him so he drove off. He didnt recall honking the horn. He dropped the gun off at a friends house and then went back later and retrieved it. Mason and Andrews drove the car around and when they got to San Pablo they left the car on the street. He denied asking Cerbrena Crenshaw for bullets and denied saying that he had smok[ed] a mother fucker and gotten a nice ride.

A jury trial commenced on September 13, 2000. On December 11, 2000, the jury found defendant guilty of first-degree murder, carjacking, robbery and of being a felon in possession of a firearm. The jury found true three special circumstances and a firearm use allegation. Defendant was acquitted of two counts involving a separate attempted carjacking incident.

The prosecution sought the death penalty. The jury deadlocked in the penalty phase and, on January 24, 2001, the court declared a mistrial. The prosecution elected not to retry the penalty phase.

On June 14, 2001, the trial court sentenced defendant to life without parole and imposed a consecutive, determinate sentence of 16 years and four months.

This timely appeal followed.

III. DISCUSSION

A. Jury Selection

During jury selection, Ary twice moved for a mistrial pursuant to Wheeler, supra, 22 Cal.3d 258 and Batson, supra, 476 U.S. 79. The first such motion came after the prosecutor used a peremptory challenge to exclude an African-American potential juror, Ms. L-T. The trial court found no prima facie case of discrimination. A short time later, Ary again brought a Batson-Wheeler challenge, this time to the exclusion of an African-American

potential juror, Mr. R. The trial court found a prima facie case of discrimination as to this juror. After the prosecutor stated his reasons for excusing Mr. R., the court denied the motion.

On appeal, Ary contends that the courts finding of a prima facie case of discrimination as to Mr. R. constituted a finding of a prima facie case as

to Ms. L-T., despite the courts earlier ruling to the contrary. Ary argues that the prosecutor was, therefore, required to justify the exercise of its peremptory challenge as to Ms. L-T. and his failure to do so was reversible error. Ary also argues that the

prima facie case as to Mr. R. was not rebutted and that the court erred in denying his motion. We reject both these arguments.

1. Background

a. Juror L-T.

Ms. L-T. described herself in her jury questionnaire as a 52-year-old African-American woman who had just begun a new job as a human resources administrator for the Oakland Unified School District. Ms. L-T. had been an educator since 1970 and had a post-graduate degree in counseling. She had

also attended law school at night for one semester in 1971. She owned her own home and described herself as happily married. Her

husband was a longshoreman and she had one adult daughter who worked as an auditor for the IRS.

She listed many close friends or family members who worked in law enforcement, specifying on her jury questionnaire a contra costa judge -- oakland police dept; Ala County juvenile hall. She also noted that a close friend was an investigator for the Alameda County Public Defenders Office and that she had given money in the past to the Oakland Black Police Officers. In 1975, her brother was convicted of selling drugs and served eight years in federal prison.

She responded that it would be hard to return a guilty verdict without regard to the consequences. She had served on a jury in the past in a case involving a robbery. The jury found the defendant guilty.

In the section of the questionnaire seeking information regarding Ms. L-T.s Experience Regarding Race or Ethnic Matters, Ms. L-T. stated that she did not think the police treated all ethnic groups in Contra Costa County the same, that she had

never felt fearful of a person of another race, that she had had negative or unpleasant experiences with southern whites in the 1960s and that she did not think prejudice against Hispanics and African-Americans was a thing of the past. She had no problem with inter-racial relationships although she wrote that she dislike[s] marriages between black wealthy males and white women. She believed black people are convicted disproportionately of crimes and that racial prejudice is not as much of a problem anymore. She also stated that white people think blacks tend to be more violent than whites and that the media overemphasizes the criminal behavior of blacks. She identified herself as moderately against the death penalty and moderately against the penalty of life in prison without the possibility of parole. She stated that it would be difficult for her to impose the death penalty because it is disproportionately handed to people of color.

She stated that she had reservations about sitting as a juror in this case. She explained on her questions that she had these reservations because of Institutional Racism. The lack of options for the defendant -- The possible lack of finances to provide the best defense including lawyers and other pertinent resources. She also stated that The defendant should be tried by his peers: age, ethnicity; economic level; educational level; and community neighbors. This is what I believe -- I did not see this in todays panelists. Finally, when asked if she believed she could be an impartial juror, she wrote, I cant answer -- I just dont know -- It is late! Do I trust the judicial system? SOMETIMES! Do I think all defendants should be tried by their intelligent peers -- Yes! Do I think the person who is alleged to have caused Mr. Ortegas death should be tried -- Yes! This is just difficult for all concerned. For me, this is more than about Ortega and the defendant. This is about the state of affairs for all black men, especially those between the ages of 19 and 35. Will I look at the defendant and see my 15 year old grandson? I dont know! We all have a tuff job in this country. Politicians are not addressing the real issues and nor will this trial. It is larger than Ortega and the defendant.

During voir dire, the court asked Ms. L-T. about the statements in her juror questionnaire that she was moderately against the death penalty and moderately against life in prison without the possibility of parole because the death penalty is disproportionately handed to people of color. Ms. L-T. explained that she didnt see that theres a big difference between the death penalty and life in prison without the possibility of parole. When asked whether she would be able to return a verdict of death, Ms. L-T. replied sitting in this chair right now, I dont know what the factors of the case would have to be for me to lean to death. I dont care what the legislation says. [] I do know that moderately, which is the reason I said that, That I know there certainly would be some crimes out there that would be committed that I can see myself listening to all of the facts, passing judgment, and saying without any question in my mind that the facts are true and this person did these things. [] I dont know if this case is going to be of that level. She went on to explain that those things that affect me with that decision [imposing a death verdict] has more to do with crimes against children, killing and raping kids and whatever. And thats not what this case is about. [] I mean, you said the special circumstances of this case. And theyre not the type of special circumstances where I think I could hear the facts and without a reasonable doubt could vote for the death penalty, all right.

She was asked if she could listen to all the factors in aggravation and mitigation and if she found the factors in aggravation whether she could come back with a verdict of death. She responded I dont think so. She also stated that if the case involved something with children, she could return such a verdict.

She was also asked about statements she made in her questionnaire about her belief that African Americans suffer the death penalty . . . in greater proportions than other races and if there was any other reason she could not come back with a death verdict. She responded, It might, morally, for me. I mean, to pass judgment on someone, for whatever reason, to pass judgment, to say that, I along with 11 other people, have your life in my hands, and I believe that you need to die, is such a difficult decision and question that I know whether I say yes or no to the death penalty, that it will be a decision that would go to my own grave. That I did, in fact, cause someone else to either spend the rest of their life in prison or to go to the death chamber. She stated she probably could envision returning a verdict of death after considering factors in mitigation and aggravation.

The court also questioned Ms. L-T. about her concern with what she referred to as institutional racism. Ms. L-T. explained that she was generally referring to people of color and poor people. The People asked her whether her concerns about the sociological or political issues surrounding people of color in America today will be a reason why you would not impose the death penalty in this case? For instance, that its composed disproportionately of people of color, so, were going to make up that disposition of the proportion of the death penalty in this case by not doing it in this case, whether or not the circumstances in aggravation substantially outweigh circumstances in mitigation. Do you think you would do that? Ms. L-T. stated Its not that I would do that, but those are my life circumstances that would participate in my thinking of how I am going to vote. Later she stated that she did not know if she could put these considerations aside. I know that all of it is relevant to what were doing.

After further jury voir dire, Ms. L-T. spoke to the court and counsel outside the presence of the other potential jurors. She stated, After I thought about the questions that the prosecuting attorney was asking me, I thought it was important for me to just say that I believe that its my civic duty to serve, and that in the questions he was asking me, Im not sure that I gave the answer that would show that I am a reasonable, understanding person that can take evidence and make a decision. [] And I dont know why its important for me to let him know that. But, you know, because when we got into the social and cultural and all of the institutional, racism, whatever, whenever -- when he was asking me that, Im not sure that he asked me the questions that I could then respond the way -- what am I saying? I guess what Im trying to say is that I am a reasonable person. And just by the mere fact of my position in society as an assistant superintendent in human resources, I dont want him to think basically that Im a -- well, I dont -- not a racist, but that Im not of good caliber.

b.Peremptory Challenge of Juror L-T.

The People exercised its fourth peremptory challenge to excuse Juror L-T. Defendant argued that, under Batson-Wheeler, a prima facie case had been made out that the Peoples motion to excuse Ms. L-T. is not race neutral. Its based on the fact that shes an African American female. The court stated that it did not believe that simply because you make a showing that the person is an African American, that that rises to a level of a prima facie case. The defendant asked to supplement the record and did so with the following statement: She is the only juror in the box currently who is of African American heritage. She indicated in her answers to this court, I believe, that she could be fair. [] Shes an intelligent juror. She indicated that she understood her duties, all of them. That she understood the concepts and precepts of law that the Court instructed her on. And she said under oath that she could follow them. [] The District Attorney, in his questioning of this jury, did not raise, in my mind, any reason to suggest that she was anything but a qualified and impartial juror. [] And so on the face of it, you have a jury venire that is not representative of my clients racial heritage. The whole system, from the start of this case down to today, we have one black juror in the box who has passed the hardship screen and the cause screen. [] And Im not aware of any reason why Mr. Jewett would have challenged her, other than the color of her skin, to deprive Mr. Ary of a jury that has someone on there who represents his background.

The court then ruled that defendant had failed to make out a prima facie case. I think all youve established so far is that its an African American person. And I dont think that thats the standard. I think there has to be more than the basis for the exclusion was based on race, some affirmative showing, other than just: The person is black.

c. Juror R.

During voir dire, the trial court questioned Mr. R. about his wifes work as a court reporter. Mr. R.s wife had been a court reporter for eleven years. During that time, she had worked on cases involving murder, but none involving the death penalty. Mr. R. stated that nothing about his wifes work would influence him in any way. After explaining that he did not put certain information on the jury questionnaire because I could be verbal, he added that serving in this case right here . . . is very sticky. It is the closest I ever got to a jury. I mean, its something like this, and its very, very sticky as far as me trying to make a decision for another persons life. [] I dont believe that -- I dont believe I could actually do it really. After pointing out that Mr. R. had described himself on his jury questionnaire as strongly in favor of life without possibility of parole while not indicating any opposition for the death penalty, Mr. R. stated I am very strongly for the death penalty, but in some cases, some people just do not deserve to be in prison for the rest of their life it they get caught stealing a bicycle and if its a third strike. He acknowledged [t]his is a very serious case. Its just sticky, your Honor.

The trial court explained at great length a jurors duty in weighing the evidence and the factors in aggravation and mitigation before reaching a verdict. The court also stated only you know your own state of mind, whether you fit into this all, or whether you could do your job or not, whether or not one side or the other may not get what theyre entitled to because of your own personal feelings. Mr. R. stated when asked if he could do it that he could. When asked if he had any reservations, Mr. R. said, No. I could do it.

With regard to his background, Mr. R. at one time considered working in law enforcement but did not because he had glaucoma. He had not thought about his views on the death penalty before coming to court. He stated he could weigh it out and come back with a verdict of death if necessary.

The People asked Mr. R about his comment that he didnt fill out parts of the questionnaire because he was more verbal. Mr. R. stated that he thought the law could be better than what it is . . . [i]f everyone would just, you know, get along with one another. When asked why he thought the case was sticky he replied [b]ecause I like sleeping at night. He explained, I want to make sure that we are sitting in the room and coming back with a verdict, if we got the death penalty on it, on anybody, and if he gets it, its going to be right. And not go down the road, ten years later, we find out something that could have been brought to the table that it wasnt brought to the table. When asked whether he could impose the death penalty if warranted by the evidence, he replied I can come back with a verdict. The People asked about Mr. R.s response to the question that deals with whether or not you think a police officer can lie. You mentioned the O.J. case. [] Okay. Weve had a few jurors a[t] least come through who have expressed some concern about a[n] almost institutionalized racism, a certain bias that might exist in the system itself. Mr. R. agreed that he shared that point of view. He also agreed with the People that racial considerations are completely irrelevant to a determination that a jury might have to make in this case.

d. Peremptory Challenge to Juror R.

After the People challenged Mr. R., the defense asserted a Batson-Wheeler objection on the ground that Mr. R. was the second African-American juror challenged by the prosecution and that no reason appeared for excusing him other than his race. The court held that a prima facie case had been made out. The People identified a number of issues about which it had a concern and which formed the basis of its decision to excuse Mr. R. [M]y peremptory was because I scored him moderate to moderately high, based upon his questionnaire. [] This was the juror who when he was here . . . [made] statements like, I didnt fill it out because Ive got a lot to say. And he called the question of jury service here a sticky issue. The People also explained that Mr. R. also said he doesnt think he could impose the death penalty. He also made a comment about how everybody makes mistakes. He also acknowledged a belief that he has about institutional racism. [] And I think he acknowledged that in the context, in response to a question on the questionnaire. [] And, again, I dont have it in front of me, but I believe it was a question about whether or not police officers lie. And to my knowledge, hes the only one who cited the O.J. case as an example of why police officers lie. And thats why I followed up with him on institutional racism.

The trial court denied the motion, concluding that the People had given sufficient reasons, other than based on race, on why this juror should be peremptorily challenged.

2. Analysis

a. Controlling Law

[T]he use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article 1, section 16 of the California Constitution. (People v. Alvarez (1996) 14 Cal.4th 155, 192; see also Wheeler, supra, 22 Cal.3d at p. 272.^[3]) This discriminatory use of peremptory challenges similarly violates the defendants federal constitutional right to equal protection. (Batson, supra, 476 U.S. at pp. 84-89.)

We presume the People use their preemptory challenges in a constitutional manner. (Wheeler, supra, 22 Cal.3d at p. 278; People v. Alvarez, supra, 14 Cal.4th at p. 193.) For this reason, the defendant bears the burden of establishing a prima facie case of purposeful discrimination. (People v. Arias (1996) 13 Cal.4th 92, 134-135; People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Alvarez, supra, 14 Cal.4th at p. 193.) To do so, the defendant must raise this issue in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, . . . he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood [or reasonable inference] that such persons are being challenged because of their group association . . . . [Citations.] (People v. Box (2000) 23 Cal.4th 1153, 1187-1188.)

If the trial court concludes that defendant failed to establish a prima facie case of purposeful discrimination, we review the record on appeal to determine whether there is substantial evidence to support the ruling. (People v. Griffin (2004) 33 Cal.4th 536, 555.) Further, if the trial court expressly rules that a prima facie case was not made, but allows the prosecutor to state his or her justifications for the record, the issue of whether a prima facie case was made is not moot. [Citations.] Rather, when the appellate court is presented with such a record, and concludes that the trial court properly determined that no prima facie case was made, it need not review the adequacy of counsels justifications for the peremptory challenges. (People v. Box, supra, 23 Cal.4th at p. 1188.)

Should the defendant establish a prima facie case, the burden then shifts to the People to provide the court with non-discriminatory reasons for the allegedly discriminatory peremptory challenge. In so doing, [t]he 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. (People v. Gutierrez, supra, 28 Cal.4th at p. 1122.)

After the People proffer a race-neutral explanation for the challenged strike, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. (Johnson v. California, supra, 545 U.S. at p. 168.) The trial court does so by determining whether substantial evidence exists to support the prosecutor's assertion of a nondiscriminatory purpose . . . . This is a purely factual question. (People v. Ervin (2000) 22 Cal.4th 48, 75.) The trial courts focus is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. (People v. Reynoso (2003) 31 Cal.4th 903, 924, italics omitted.) Thus, the issue comes down to whether the trial court finds the prosecutors race-neutral explanations to be credible. (Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) On appeal, we must determine whether substantial evidence supports the trial courts conclusion. (People v. McDermott (2002) 28 Cal.4th 946, 970.)

b. Prima Facie Case as to Prospective Juror L-T.

Ary first argues that when the trial court found a prima facie case as to prospective Juror R., it necessarily also found a prima facie case as to earlier excused prospective Juror L-T. He contends that the People were, therefore, required to justify their exclusion of this juror and that the failure to do so constitutes reversible error. We disagree.

Wheeler motions are separate and discrete and . . . resolved definitively and independently of each other. (People v. Irvin (1996) 46 Cal.App.4th 1340, 1351; see also People v. Alvarez, supra, 14 Cal.4th at pp. 198-199).) Therefore, the courts resolution of the motion as to Ms. L-T. adjudicated the issue of whether a prima facie case had been made out, unless and until defendant renewed his Wheeler claim as to this juror. Thus, in Irvin, the court held that the trial courts finding of a prima facie case as to one Wheeler motion was not binding on the trial court with regard to the remaining motions. The court explained that once a prima facie showing has been refuted, it is incumbent on the moving party to make a new prima facie showing with regard to any subsequent Wheeler motion pertaining to a different juror of the identified group from the venire. . . . [] The rationale behind requiring a prima facie showing to be made anew is the requirement that in making a prima facie showing the defendant must focus on the particular circumstances of the specific peremptories in question. (Ibid.)

Therefore, the trial courts conclusion that defendant failed to make out a prima facie case as to Juror L-T. was not altered by its finding that the particular circumstances of the peremptory challenge to Juror R. did make out a prima facie case. Certainly, nothing in the record indicates the trial court was asked to, or did, revisit its earlier finding that defendant failed to make out a prima facie case as to Juror L-T.^[4] Therefore, the courts finding as to Juror R. stands on its own, and is not an implicit finding as to Juror L-T.

In making his case to the contrary, defendant relies principally on People v. Gonzalez (1989) 211 Cal.App.3d 1186, People v. Fuentes (1991)54 Cal.3d 707, and People v. Williams (1997) 16 Cal.4th 153. These cases do not support defendants argument that, when a court finds a prima facie case as to one juror, that finding operates as an implicit finding of a prima facie case as to an earlier challenged juror. People v. Gonzalez, supra, 211 Cal.App.3d 1186, 1195, concerns a single motion under Wheeler brought by the defendant on the ground that the prosecution was systematically excluding people with Hispanic surnames. The defendant described two prospective jurors who had been excluded and the court requested explanations as to those two jurors before denying defendants motion. The Court of Appeal held that the prosecutors justification was insufficient and reversed the trial court. In reaching this conclusion, the Gonzalez court explained that, generally, [i]f a single peremptory challenge of a prospective juror in the subject cognizable group is not justified, the presumption of systematic exclusion is not rebutted. (Id. at p. 1193.) We do not read this statement -- made in the context of a single Wheeler motion -- to suggest that a prior challenged peremptory, as to which the court has found no prima facie case, must nevertheless be justified if the court later finds a prima facie case as to a different juror. This issue was simply not before the Gonzalez court.

Defendant gives People v. Fuentes, supra, 54 Cal.3d at page 715, a similarly strained reading. The Fuentes court did indeed state that every questioned peremptory challenge must be justified. However, the questioned peremptory challenges to which the court was referring were peremptories identified in the motion before the court. It is simply not the case that the Fuentes court was referring to prior questioned peremptory challenges. Similarly, the references in People v. Williams, supra, 16 Cal.4th at page 187, to each of the disputed peremptory challenges and any of the challenges are references to disputed challenges brought before the court in a single Wheeler motion, not in consecutive motions.

In his reply brief, defendant cites one other case in support of this argument, People v. McGee (2002) 104 Cal.App.4th 559 (McGee). McGee, however, was disapproved by our Supreme Court in People v. Avila (2006) 38 Cal.4th 491, 549 (Avila). Moreover, it is factually inapposite. In McGee, the defendant made a Wheeler motion after the People exercised five of its six peremptory challenges to excuse African-American potential jurors. The trial court denied this motion. (McGee, supra, 104 Cal.App.4th at p. 569.) After the People excused a sixth African-American prospective juror, the defendant renewed his Wheeler motion. (Ibid.) He argued at that time that the Peoples use of six of his first seven peremptory challenges to reject African-Americans demonstrated a pattern of race-based exclusion. (Id. at pp. 569-570.) The trial court found that a prima facie showing of impermissible discrimination had been made, but limited that finding -- and the concomitant requirement that the prosecutor provide a race-neutral explanation for the peremptory challenge -- to the most recent juror who had been excused . . . . (Id. at p. 570.) The court held that this was error. The court did so because the Wheeler challenge before the trial court was to the exclusion of all six African American jurors, and the trial court, therefore, was required to seek a race neutral explanation as to each of the challenged jurors. The Avila court disapproved of this conclusion, which in any event, is not applicable to this case. (Avila, supra, 38 Cal.4th at p. 549.) Here, defendants two Wheeler motions were limited to the two individual jurors concerned. Defendant did not, as the defendant in McGee did, base his Wheeler motion on the exclusion of the current challenged juror and prior jurors.

Therefore, we reject defendants argument that, when a trial court finds a prima facie case as to one or more questioned peremptory challenges it impliedly finds prima facie cases for any previous Wheeler motions it has denied.^[5]

c. Juror R.

Defendant also argues that the People failed to rebut the prima facie case of discrimination as to Juror R. because one of the Peoples proffered explanations for excusing Juror R. was that he acknowledged a belief that he has about institutional racism and this explanation was a proxy for a discriminatory motive. We disagree.

As we earlier noted, after the People proffer a race-neutral explanation for the challenged strike, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. (Johnson v. California, supra, 545 U.S. at p. 168.) The trial court does so by determining whether substantial evidence exists to support the prosecutor's assertion of a nondiscriminatory purpose. . . . This is a purely factual question. (People v. Ervin, supra, 22 Cal.4th at p. 75) and one we review on appeal under the substantial evidence standard of review. (People v. McDermott, supra, 28 Cal.4th at p. 970.)

In justifying the exclusion of Juror R., the People referred to Juror R.s repeated description of jury service as a sticky issue, his statement that he did not think he could impose the death penalty, his belief that everyone makes mistakes, and his view that police officers can lie, as demonstrated by the O.J. case, an explanation the prosecutor referred to as a belief in institutional racism.

These race-neutral justifications are supported by the record. Juror R. was evidently concerned about his ability to impose the death penalty. He stated, Serving in this case right here . . . is very sticky. It is the closest I ever got to a jury. I mean, its something like this, and its very, very sticky as far as me trying to make a decision for another persons life. [] I dont believe that -- I dont believe I could actually do it really. Even after the People reminded Juror R. that, in his jury questionnaire he had stated he was strongly in favor of life without possibility of parole Mr. R. stated I am very strongly for the death penalty, but in some cases, some people just do not deserve to be in prison for the rest of their life it they get caught stealing a bicycle and if its a third strike. He acknowledged [t]his is a very serious case. Its just sticky, your Honor.

After the trial court explained a jurors duties, and asked Juror R. again if he could do it. When asked if he had any reservations, Mr. R. said, No. I could do it.

As for Juror R.s view about the possibility of a police officer lying, Juror R. explained that he thought jury service was sticky because I like sleeping at night. He explained, I want to make sure that we are sitting in the room and coming back with a verdict, if we got the death penalty on it, on anybody, and if he gets it, its going to be right. And not go down the road, ten years later, we find out something that could have been brought to the table that it wasnt brought to the table. When asked whether he could impose the death penalty if warranted by the evidence, he replied I can come back with a verdict. The People asked about Mr. R.s response to the question that deals with whether or not you think a police officer can lie. You mentioned the O.J. case. [] Okay. Juror R. stated that he agreed with the People that racial considerations are completely irrelevant to a determination that a jury might have to make in this case.

It is clear from the record that Juror R. was ambivalent about serving on a capital jury and had concerns about the veracity of police officer witnesses and the judicial system in general. Defendant, however, argues that the Peoples use of the phrase institutional racism in describing Juror R.s belief that police officer may testify untruthfully, was a proxy for a group bias. We disagree.

The People may not exercise a peremptory challenge for a reason that is a mere surrogate[] or prox[y] for group membership. (People v. Alvarez, supra, 14 Cal.4th at p. 197, citing U. S. v. Bishop (9th Cir. 1992) 959 F.2d 820, 826.) However, a defendants express distrust of the criminal justice system and its treatment of African-American defendants--a view not restricted to African-American persons. is not a proxy for group membership. (People v. Cornwell (2005) 37 Cal.4th 50, 70.) Our courts have repeatedly upheld peremptory challenges made on the basis of a prospective jurors negative experience with law enforcement. (People v. Turner (1994) 8 Cal.4th 137, 171, overruled on other grounds in People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5; see also U. S. v. Vaccaro (9th Cir. 1987) 816 F.2d 443, 457, overruled on other grounds in Huddleston v. United States (1988) 485 U.S. 681; Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099; Jones v. Gomez (9th Cir. 1995) 66 F.3d 199, 201-202.)

Here, Juror R.s comments amounted to an unfortunate, but not uncommon, distrust of the criminal justice system, a distrust that is not confined to African-American persons. These views were of legitimate concern to the People, who were seeking the death penalty and, therefore, were a legitimate rationale for exercising a peremptory challenge. (See People v. Mayfield (1997) 14 Cal.4th 668, 725.)^[6]

B. Disclosure of Andrews and Mason Statements

Defendant contends the trial court ordered the defense to disclose to the People statements made by co-defendants Andrews and Mason to a defense investigator. He argues this order was erroneous and prejudicial. He also argues that, in the alternative, if counsel waived any objection to producing this discovery, her performance was ineffective.

1. Factual Background

In preparation for trial, defendants attorney and an investigator interviewed Worsten Andrews and Darius Mason, both of whom were with defendant on the night of the murder. After Andrews testified on direct examination, defense counsel questioned Andrews about statements he made in interviews he gave to the defense investigator. Specifically, Andrews was asked about photographs defendants attorney and defense investigator showed him of the intersection where Ortega was killed. At no time during the trial with this or any other witness did the defendant offer any statement contained in these reports, or the reports themselves, into evidence.

During the defense cross examination, the People asked for the reports and defense counsel stated, as you know, the law allows you to have these reports only after the witness has testified.

Some time later, the trial court clarified its ruling on the issue of whether and when defense investigative reports regarding interviews with Andrews and Mason should be disclosed to the People: Its my understanding under the law that youre not entitled to that discovery until after the cross-examination, at which time you are entitled to it, at which time you may request a reasonable continuance to review the report which the Court will grant so that you may have adequate time to do it. [] But I dont believe shes under an obligation to give you that material after -- until after cross-examination. May be a courtesy. May often be done. But as she said, this is a capital case, and sometimes hardballs played. [] My ruling is: It doesnt have to be given to you [until] after the examination of the witnesses on [cross] by the defense.

The People then made a motion under section 1054 for all reports defense counsel has with respect to Darius Mason who is my next witness. The People argued that Mason, like Andrews, was a defense witness because he would have been called by defendant if the People had not called him first. After some discussion, the trial court observed that defense counsel had represented to me she did not necessarily intend to call these witnesses. I have to go to based upon her representation. The court then ruled that [y]ou get the discovery after the cross-examination. Courts ruling will stand.

Following the cross-examination of Andrews, defense counsel provided the People with three investigative reports. On rebuttal, the People asked Andrews numerous questions about the statements he had made to the defense investigator regarding the events that led up to Ortegas murder.

On cross-examination, Mason was asked briefly about an interview he participated in with defendants attorney and defense investigator Hicks. Mason was asked if he recalled telling Ary about an unrelated murder and whether Ary was shocked by these murders. He was also asked about some photographs he was shown by Hicks. He testified that he had been asked to make some marks on the photographs to show where he had been standing before the Ortega murder occurred. He testified generally about his recollection of where he had been standing when the murder occurred. He was also stated that he somewhat recalled telling Hicks and defendants attorney each time we interviewed you that you saw James Ary walk up to the car and empty his gun into it, into the drivers area.

After Mason was cross-examined, the defense provided the People with investigative reports and notes regarding interviews of Mason. The People made no reference to the interviews of Mason in their redirect examination of Mason.

During the defense case in chief, the defense investigator, Hicks, was called. Hicks testified about interviews he conducted with several witnesses to the crime other than Andrews and Darius Mason.

After the defense rested, the People proposed to call investigator Hicks in rebuttal. The People stated that they wished to ask Hicks about certain statements by Andrews and Mason recorded in his interview notes which were inconsistent with statements made by Andrews and Mason at trial. The trial court stated I will not allow any of this evidence to come in, until we have a full hearing on every statement that you wish to get in in these reports. The next day, defense counsel argued that the People should not be permitted to present these statements in rebuttal, because they should have been presented in the case-in-chief. In addition, defense counsel argued that the documents should not have been turned over at all because she did not expressly impeach Andrews with his statements to the defense investigator and only briefly addressed Masons statements to the investigator.

The trial court stated, apparently to the People, You are entitled to it [reports utilized for the purpose of examining the witness]. [] The question now is whether or not you can use it, which is another issue. The court ultimately permitted the People to call investigator Hicks. Hicks testified about a number of statements made by Andrews and Mason in pretrial interviews.^[7]

Defendant contends the trial court erred when it ordered the defense to turn over its investigators notes of these pretrial interviews to the People and to permit the People to question Hicks about these statements. He argues that this disclosure was not authorized by section 1054.3 or by any other statutory or constitutional provision. We agree.

Preliminarily, we note that the defense did not waive its objection to the production of this material. Although at various times during the trial the defense stated its understanding that the People were entitled to these materials, it did so in the context of trial court orders that it surrender the materials following cross-examination of the witnesses.

Our starting point in considering the propriety of the courts order is section 1054.3, which provides that [t]he defendant and his or her attorney shall disclose to the prosecuting attorney: [] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. (b) Any real evidence which the defendant intends to offer in evidence at the trial.

Under section 1054.3, therefore, defendant was required to disclose only those materials pertaining to witnesses it intended to call in its case in chief. Mason and Andrews were not defense witnesses because defendant did not intend to call them in his case in chief. Therefore, discovery of these interviews could not be compelled under section 1054.3.

We reject the Peoples argument that Mason and Andrews were in fact defense witnesses because their testimony was helpful to the defense and because the defense had put out a removal order for them. The trial court explicitly found, when the People made a motion for the interviews of Mason and Andrews under section 1054.3, that neither was a defense witness. We agree with this conclusion. Neither of these witnesses was named or called by the defense. While they may have been helpful to some aspect of defendants case, the defense would have no reason to call as a witness two codefendants who cut deals to put this man to death. Although the defense attorney put out removal orders for both men, she did so in an excess of caution. Nor are we persuaded to adopt a contrary view by later comments