P. v. Candler
Filed 2/6/13 P. v. Candler CA2/4
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opinion has not been certified for publication or ordered published for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 FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
REGINALD
MARK CANDLER,
Defendant and Appellant.
B235849
(Los Angeles County
Super. Ct. No. MA052393)
APPEAL from a
judgment of the Superior Court of
County, Christopher G. Estes, Judge. Affirmed.
A. William
Bartz, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Eric E.
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
INTRODUCTION
Reginald Mark Candler
appeals from a judgment entered following a jury verdict finding him guilty of
in possession of a firearm. He contends
the judgment should be vacated because the trial court erred in declaring a
mistrial after excusing two jurors for cause, and the retrial violated the
double jeopardy provisions of the federal and California constitutions. He also contends the judgment should be
reversed because the court erred in denying his Batson/Wheeler motion,
challenges to excuse three prospective African-American jurors. Finding no error, we affirm.
After
appellant was charged in a three-count information with various firearm
offenses, a jury trial commenced June 23, 2011.
On July 5, 2011, while the jury was deliberating,
the trial court granted a defense motion for mistrial over appellant’s
objection. The retrial commenced August
30, 2011. The jury found appellant guilty of possession
of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)) and of possession of a firearm by a
felon (Pen. Code, § 12021, subd. (a)(1)).
It acquitted him of the remaining count (discharge of a firearm with
gross negligence). In a
three prison prior convictions. He was
sentenced to state prison for a total of six years, and assessed various fines
and fees. He timely appealed.
DISCUSSION
Appellant
contends his retrial was barred by the double jeopardy provisions of the
reversed because the trial court erred in denying his Batson/Wheeler
motion.
A.
1. Relevant
Proceedings
During jury
deliberations in the first trial, the court was informed that one juror had
looked up the definition of two words in a dictionary and that another juror
had used the internet to research juror responsibilities. In response, the judge sent a written
instruction, admonishing the jurors that they “‘must not independently
investigate the facts or the law’†and that they were “not to discuss any information
obtained in the dictionary or the internet.â€
The judge also indicated to the parties that he would conduct a further
inquiry into the misconduct.
Defense
counsel agreed that further inquiry was needed.
She also stated that the court’s instruction would not cure the jurors’
misconduct and that she would be requesting a mistrial.
After the
judge conducted the inquiry by questioning the two jurors, the judge asked
[her] motion for mistrial based on jury misconduct.†Defense counsel responded in the
affirmative. The judge then asked
appellant whether he understood that there would be “no double jeopardy when I
grant a defense mistrial.†Appellant
responded, “Right.†The judge asked
defense counsel whether she agreed, but defense counsel and appellant conferred
before counsel could answer. After this
conference ended, the judge asked counsel whether she was still bringing the
motion. She answered, “I’m still
bringing it.†Appellant requested more explanation
about double jeopardy, and defense counsel again conferred with him. After this discussion, appellant stated he
did not understand the double jeopardy issue.
After further discussion with defense counsel, appellant stated that he
objected to his counsel’s motion for mistrial.
The trial court granted the defense motion for mistrial over appellant’s
objection.
2. Applicable
Law
The Double
Jeopardy Clause of the Fifth Amendment
of the federal constitution provides that no person shall “be subject to the
same offense to be twice put in jeopardy of life or limb.†Article I, section 15 of the California
Constitution similarly provides that “Persons may not twice be put in jeopardy
for the same offense . . . .†Thus,
“once a criminal defendant is placed on trial and the jury is duly impaneled
and sworn, a discharge of the jury without a verdict is equivalent to an
acquittal and bars retrial unless (1) the defendant consents to the discharge
or (2) legal necessity requires it.†(
24 Cal.3d 324, 329, citing Curry v.
Superior Court (1970) 2 Cal.3d 707, 712-713.) A defendant consents to discharge of a jury
and retrial if, inter alia, he moves for a mistrial or states that he has no
objection to a mistrial. (
1172, 1175 (Brandon).) Moreover, as a matter of trial tactics,
defense counsel may move for a mistrial over the defendant’s objection. (Ibid.
[defendant had no meritorious double jeopardy defense to retrial where trial
counsel moved for mistrial over defendant’s objection], citing
508, 512-515 [mistrial granted at request of defendant’s counsel authorized
retrial]; accord, People v. Hambrick
(2012) 96 A.D.3d 972 973 [947 N.Y.S.2d 139] [although defendant personally
disagreed with request for a mistrial, “defendant’s personal consent to a
mistrial was not necessary, and his counsel’s decision to move for a mistrial
was binding on the defendantâ€].)
Finally, a claim that a prosecution violated a defendant’s
constitutional rights against double jeopardy is not cognizable on appeal
unless the defendant has entered a plea of once in jeopardy, or the claim is
part of one alleging ineffective assistance of counsel. (People
v. Scott (1997) 15 Cal.4th 1188, 1201.)
3.
The resolution
of the double jeopardy claim is controlled by our prior decision in
moved repeatedly for a mistrial. As this
court explained in Brandon, the law
does not require that the right to proceed to a conclusion with the same jury
be personally waived by an accused:
“trial counsel [has] the right to make that decision as a matter of
trial tactics . . . even over [the defendant’s]
objection.†(Brandon, supra,
40 Cal.App.4th at p. 1175.) Defense
counsel’s request for a mistrial is deemed to be the defendant’s consent. Although appellant objected below to the
motion for mistrial, his counsel’s request is thus “deemed to be appellant’s
consent.†(Ibid.) Because appellant is
deemed to have consented to the discharge of the first jury, the retrial was
not barred by the double jeopardy provisions of the federal and California
constitutions. Similarly, as appellant
had no meritorious double jeopardy defense to the second trial, his counsel was
not ineffective for failing to enter a plea of once in jeopardy. In short, the trial court did not err in
granting the defense motion for mistrial, and the second trial was not barred
by appellant’s constitutional right against double jeopardy.
B.
1.
During the retrial, after the
prosecutor used his peremptory challenges to excuse three prospective
African-American jurors, defense counsel made a Batson/Wheeler
motion. The trial court determined that
the defense had made a prima facie case that the jurors had been excused
because they belonged to an identifiable group.
The court asked the prosecutor to explain why he excused the three
prospective jurors, identified as Juror Nos. 6333, 2334, and 8237.
The prosecutor explained that Juror
No. 6333 had a nephew who had been convicted of a crime. The juror believed that his nephew had been
“railroaded,†that his conviction was racially-based, and that the punishment
he received was unfair.
As for Juror No. 2334, the prosecutor
explained that the juror was a counselor who worked with parolees. The prosecutor believed the juror might be
sympathetic to appellant because she worked with people in situations “where
the defendant could be . . . in the future.†The prosecutor also noted that the juror
stated her sister had been a defendant in a criminal case.
Finally, as to Juror No. 8237, the
prosecutor noted that the juror had said her husband’s cousin had been
convicted of a crime involving a shooting and was currently in prison. The prosecutor was concerned that she would
sympathize with appellant.
The trial court gave defense counsel
the opportunity to comment on each of the prosecutor’s proffered reasons for
excusing the jurors. Counsel declined to
do so. The court then denied the
defense’s motion, stating:
“The court has heard the explanations by the
prosecutor. . . . [T]he explanations are
consistent with the court’s notes, and as to each of the three, the court does
believe those are neutral explanations for the challenges.â€
2. Applicable
Law
“The purpose
of peremptory challenges is to allow a party to exclude prospective jurors
who[m] the party believes may be consciously or unconsciously biased against
him or her. [Citation.] However, the use of peremptory challenges to
remove prospective jurors from the panel solely on the basis of group bias
violates the right of the defendant to a jury drawn from a representative
cross-section of the community.
[Citations.]†(
13, 17-18, italics & fn. omitted.)
“[A] peremptory challenge may be predicated on a broad spectrum of
evidence suggestive of juror partiality[,] . . . rang[ing]
from the obviously serious to the apparently trivial, from the virtually
certain to the highly speculative.†(
Trial courts
engage in a three-step process to resolve claims that a prosecutor used
peremptory challenges to strike prospective jurors on the basis of group bias
-- that is, bias against “‘members of an identifiable group distinguished on
racial, religious, ethnic, or similar grounds.’†(People
v. Avila (2006) 38 Cal.4th 491, 541.)
“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.’ [Citation.] Second, once the defendant has made out a
prima facie case, the ‘burden shifts to the State to explain adequately the
racial exclusion’ by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether
the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]â€
(Johnson v. California, supra,
545 U.S. at p. 168, fn. omitted.)
The appellate court reviews the trial court’s ruling on the question of
purposeful racial discrimination for substantial evidence, presumes that the
prosecutor used peremptory challenges in a constitutional manner, and gives
deference to the trial court’s conclusions, as long as the “court makes ‘a
sincere and reasoned effort to evaluate the nondiscriminatory justifications
offered.’†(People v. Avila, supra,
38 Cal.4th at p. 541, quoting People
v. Burgener (2003) 29 Cal.4th 833, 864.)
C.
After examining the record, we
conclude that the trial court made “a sincere and reasoned effort†to evaluate
the prosecutor’s proffered reasons for excusing the three African-American
jurors. Here, “[t]he prosecutor’s stated
reasons for exercising each peremptory challenge [was] neither contradicted by
the record nor inherently implausible.â€
(People v. Ward (2005) 36
Cal.4th 186, 205.) Juror No. 6333’s
belief that his nephew was “railroaded†by the criminal justice system was a
sufficient race-neutral reason for the prosecution to excuse him. (See, e.g., People v. Douglas (1995) 36 Cal.App.4th 1681, 1690 [“use of peremptory
challenges to exclude prospective jurors whose relative and/or family members
have had negative experiences with the criminal justice system is not
unconstitutionalâ€].) The prosecutor’s
excusal of Juror No. 2334 because she was a counselor who worked with parolees
was also legitimate. (See, e.g.,
396, 411-412 [occupation can be a permissible, nondiscriminatory reason for
exercising a challenge].) Finally, as to
Juror No. 8237, the prosecutor had a valid race-neutral reason for excusing her
-- the fact that she had a family member in prison for a crime involving a
shooting. (See, e.g.,
1039, 1052-1053 [prosecutor properly challenged juror whose uncle had been
convicted of murder].) In addition,
there was no evidence suggesting the prosecutor’s proffered reasons were
pretextual. In short, the trial court
did not err in denying the Batson/
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
v. Kentucky (1986) 476
U.S. 79, 85 (
Wheeler (1978) 22 Cal.3d 258, 276 (Wheeler), overruled in part by
168.
appellant’s crimes are not relevant on appeal, we omit a Statement of the
Facts.
