Opinion
F070004
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER LYNN BURDEN et al., Defendants and Appellants.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant Jennifer Lynn Burden. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Allen DeGough. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF154702A, BF154702B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant Jennifer Lynn Burden. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Allen DeGough. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellants, Jennifer Lynn Burden and Allen DeGough, were convicted of multiple drug-related offenses following a joint trial by jury. Burden was granted probation for a period of three years, with terms requiring the completion of a drug treatment program. DeGough was granted three years' probation on the condition that he serve one year in county jail, and otherwise received concurrent sentences. The issues on appeal pertain to jury selection and sentencing.
Burden seeks to have her case remanded to the trial court with instructions that it hold a resentencing hearing as authorized by Proposition 47, which allows for the redesignation of certain felony drug convictions to misdemeanors and provides a mechanism for resentencing. To obtain relief under Proposition 47, eligible parties must file an application pursuant to Penal Code section 1170.18. As will be explained, this cannot be accomplished on direct appeal. Such requests must be presented in the first instance to the trial court that entered the judgment of conviction. We therefore affirm the judgment against Burden without prejudice to her ability to pursue any remedies to which she may be entitled under Proposition 47.
DeGough challenges the trial court's denial of a Wheeler/Batson motion made at the time of jury voir dire. He maintains the prosecutor used a peremptory challenge to exclude an African-American prospective juror on the basis of race. DeGough's second claim, which is appropriately conceded by the People, assigns error to the trial court's failure to dismiss a conviction of simple drug possession as an included crime within a contemporaneous conviction of possession for sale. The error warrants modification of the judgment by striking both the conviction and sentence on the lesser-included offense. Finding no other grounds for reversal, we affirm DeGough's judgment as modified.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
FACTS AND PROCEDURAL HISTORY
Burden and DeGough were charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1); simple possession of methamphetamine (id., former § 11377, subd. (a), count 2); possession of drug paraphernalia (id., former § 11364.1, subd. (a), count 3); and, as to DeGough only, willful destruction of evidence (Pen. Code, § 135, count 4). The matter was tried before a Kern County jury in July 2014. Background information concerning the Wheeler/Batson issue is provided in our Discussion, post.
This case arises from the execution of a search warrant at a house in Bakersfield. The trial evidence showed that Burden and DeGough occupied the home at the time of the search. Police discovered and seized methamphetamine, a glass pipe, various packaging materials, a digital scale, and approximately $2,100 in cash. During the search, DeGough was seen attempting to flush methamphetamine down a toilet.
The jury acquitted Burden of possession for sale as alleged in count 1, but convicted her on counts 2 and 3. DeGough was found guilty as charged. As to Burden, the trial court suspended the imposition of sentence and ordered her to complete three years of probation with drug treatment pursuant to Proposition 36 (see Pen. Code, § 1210.1, subd. (a)). As to DeGough, with respect to counts 1 and 2, the trial court granted probation for a period of three years. Among other terms and conditions of probation, DeGough was ordered confined to the county jail for one year. Probation was denied as to counts 3 and 4, and concurrent sentences of 180 days in jail were imposed for each conviction. Burden and DeGough filed timely notices of appeal.
DISCUSSION
I. Wheeler/Batson motion
A. Background
Jury selection began with 12 prospective jurors in the jury box, drawn from a venire of approximately 60 individuals. The jury pool was comprised of men and women whose ethnic and racial backgrounds are, for the most part, indiscernible from the record. DeGough's claim involves an African-American man who sat in "seat number six" during voir dire. We will refer to this person as Juror No. Six.
Juror No. Six was added to the box after another prospective juror was excused for harboring bias based on a negative family experience with drug addiction. Juror No. Six stated that he graduated from high school in 1975, was married, and had been steadily employed for approximately 30 years. He disclosed no overt biases during questioning by the trial judge, the prosecutor, and two defense attorneys.
The prosecutor repeatedly asked prospective jurors about their opinions regarding the "War on Drugs" and legalization of illicit substances for recreational use. At one point, the prosecutor asked if anyone in the box believed the War on Drugs was a waste of time. Juror No. Six allegedly nodded his head, and the prosecutor asked him to explain his views on the subject. He replied: "I just think that it's been an ongoing—this has been ongoing for years, you know, and I'm not saying it's a losing cause. I'm just saying it's been an ongoing battle for years and tax dollars are being spent. They're being spent. [¶] And I don't know—looking at it statistically-wise, I don't know if it's made a difference or if it has not made a difference, but I do know that it is and has been an ongoing battle." Juror No. Six clarified that he did not believe it was a waste of time to prosecute drug offenses.
The prosecution used its fifth peremptory challenge to excuse Juror No. Six. This prompted an unreported chambers conference, during which Burden's trial counsel made a Wheeler/Batson motion that was summarily joined in by DeGough. Following the conference, the trial court made a record of its ruling: "I do not find a prima facie case.... And there are other African-Americans [in the jury pool] at this point in time. [¶] I cannot find a prima facie case that the excusal of juror number six ..., no inference can be drawn that it was for purposes of discrimination."
When the defense was given the opportunity to document its position, Burden's counsel asserted that the voir dire responses provided by Juror No. Six "didn't indicate any good reason why he should be excluded." The trial court responded, "I can't draw any inference in regard to that." The prosecution declined to offer a specific explanation for its challenge, but stated that "[t]he reasons for dismissal were not race-based in any form."
DeGough revisits this issue on appeal, contending the evidence before the trial court demonstrated a prima facie case of race-based discrimination by the prosecutor. Adopting the argument advanced by Burden's trial counsel, DeGough submits that Juror No. Six's "characteristics and his answers to questions during voir dire provide no basis upon which to differentiate him from the jurors of other races accepted by the prosecutor or from the community as a whole." Thus, according to DeGough, "there was at least a reasonable inference that [Juror No. Six] was excluded due to his race."
B. Analysis
A so-called Wheeler/Batson motion refers to the rule established by its namesake cases that peremptory challenges based on a prospective juror's race or membership in a similar cognizable class are prohibited under the state and federal Constitutions. (People v. Avila (2006) 38 Cal.4th 491, 541.) In this context, African-American individuals are members of a cognizable group. (People v. Motton (1985) 39 Cal.3d 596, 605.) Although DeGough is Caucasian, a defendant need not be of the same race as the prospective juror to object to a prosecutor's unlawful peremptory challenge. (People v. Burgener (2003) 29 Cal.4th 833, 863.)
"There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination." (People v. Bonilla (2007) 41 Cal.4th 313, 341.) To rebut this presumption, the party alleging discrimination must successfully complete a three-step procedure. (Ibid.) "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.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.'" (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
The trial court below concluded that the first step was not satisfied, i.e., that the defendants failed to establish a prima facie case of group discrimination. The focus of the prima facie inquiry is on the moving party's contentions and the record of voir dire. (People v. Wimberly (1992) 5 Cal.App.4th 773, 781.) Similarly, the standard of review requires us to consider the jury selection proceedings as a whole to determine whether substantial evidence supports the ruling. (People v. Jenkins (2000) 22 Cal.4th 900, 993-994; People v. Howard (1992) 1 Cal.4th 1132, 1155.) "Because of the trial judge's knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we must give 'considerable deference' to the determination that appellant failed to establish a prima facie case of improper exclusion." (Wimberly, supra, at p. 782; cf. Uttecht v. Brown (2007) 551 U.S. 1, 9 ["Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors."].)
DeGough relies heavily on the fact that Juror No. Six was one of only two or three African-Americans in the entire venire. However, it is settled that an inference of discrimination requires more than the excused juror's membership in a cognizable class that is underrepresented in the jury pool. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 470 ["racial identity, standing alone, is not dispositive"].) In People v. Harris (2013) 57 Cal.4th 804, where a prosecutor dismissed the only two African-American women who had been called to the jury box, the California Supreme Court noted that "the small number of African-Americans in the jury pool makes 'drawing an inference of discrimination from this fact alone impossible.'" (Id. at p. 835.) The same was true in People v. Clark (2011) 52 Cal.4th 856, 905, where the prosecutor challenged four out of five African-American prospective jurors. Another example is People v. Bell (2007) 40 Cal.4th 582, 597-598, which involved the use of peremptory challenges to exclude two of only three African-American prospective jurors.
Overruled on an unrelated point in People v. Sanchez (2016) 63 Cal.4th 665, 686, footnote 13. --------
While the dismissal of some or all members of a cognizable group is relevant to the Wheeler/Batson analysis, other probative circumstances must exist. Commonly considered factors include the nature of the questioning by the prosecutor, the racial or ethnic background of the defendant and the victim, and the similarity of challenged jurors based on characteristics other than group membership. (People v. Harris, supra, 57 Cal.4th at pp. 834-835.) "A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (People v. Scott (2015) 61 Cal.4th 363, 384.)
DeGough's argument concerning the allegedly unremarkable nature of Juror No. Six's voir dire responses is not compelling. Attorneys have the right to excuse a prospective juror "based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (People v. Lenix (2008) 44 Cal.4th 602, 613.) Here, the prosecution made a focused effort to identify people who held nonconservative views on recreational drug use and laws prohibiting the same. Nearly all prospective jurors who entered the box, both before and after Juror No. Six was excused, were subjected to some form of questioning on those topics. Juror No. Six's responses apparently stood out to the prosecutor, since she later referenced them when questioning a different panel member about the enforcement of drug laws. Prior to excusing Juror No. Six, the prosecution used a peremptory challenge to remove a prospective juror who had said that drugs are not "worth the time and money to prosecute," and should instead be legalized and regulated.
The totality of the circumstances suggests a race-neutral basis for excluding Juror No. Six, as do the different racial backgrounds of Juror No. Six and DeGough (People v. Scott, supra, 61 Cal.4th at p. 384) and the presence of additional African-American prospective jurors when the peremptory challenge was exercised (see People v. Buchanan (2006) 143 Cal.App.4th 139, 148-149). Given the factors we have discussed and the lack of countervailing circumstances to raise an inference of group bias, we conclude there is substantial evidence to support the trial court's finding that a prima facie case of racial discrimination was not made. II. Proposition 47
Burden was convicted and granted probation in this case on July 29, 2014. On November 4, 2014, California voters approved Proposition 47, also known as The Safe Neighborhoods and Schools Act. The statutes enacted by the passage of Proposition 47 classify as misdemeanors certain drug-related offenses that were previously defined as felonies or wobblers, i.e., crimes punishable as either felonies or misdemeanors at a court's discretion. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) As relevant here, the legislation amended Health and Safety Code section 11377 such that possession of a controlled substance in violation of subdivision (a) of the statute, which was previously a wobbler offense, is now generally treated as a misdemeanor. (Former Health & Saf. Code, § 11377, subd. (a); People v. Lynall, supra, at pp. 1108-1109.)
Proposition 47 created a resentencing provision, Penal Code section 1170.18, pursuant to which any person currently "serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the [Act] had [the Act] been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case." (Pen. Code, § 1170.18, subd. (a).) Eligible parties may also petition for the redesignation of their felony drug convictions to misdemeanors. (Id., subd. (f).) "Petitions can only be filed by persons convicted of the offenses downgraded by Proposition 47 ..., and relief will be denied if they also have convictions for serious, violent, or specified sex-related felonies. ([Id.], subd. (i).) Even then, the court has the discretionary power to deny a petition if 'resentencing the petitioner would pose an unreasonable risk of danger to public safety,' a conclusion the court may draw from the petitioner's 'criminal conviction history,' 'disciplinary record and record of rehabilitation while incarcerated,' and '[a]ny other evidence the court ... determines to be relevant.' (Id., subd. (b).)" (People v. Curry (2016) 1 Cal.App.5th 1073, 1078.)
Relying on the provisions of Penal Code section 1170.18, Burden alleges that she is entitled to have her case remanded to the trial court for resentencing on count 2. She specifically argues that remand is appropriate since the judgment is not yet final. In People v. Bradshaw (2016) 246 Cal.App.4th 1251, this district observed that "[s]everal cases have held Proposition 47 does not provide for automatic resentencing of a defendant currently serving a felony sentence and is not automatically applicable to those whose judgments are not yet final." (Id. at p. 1257, citing People v. Scarbrough (2015) 240 Cal.App.4th 916, 924-925, People v. Shabazz (2015) 237 Cal.App.4th 303, 307, 312-314, People v. Noyan (2014) 232 Cal.App.4th 657, 672.) We expressly agreed "with the reasoning and conclusion of these opinions, which limit defendants to the statutory remedy, set forth in [Penal Code] section 1170.18, of petitioning for recall of sentence (id., subd. (a)) or applying for designation of felony convictions as misdemeanors (id., subd. (f)), as appropriate, in the trial court once the judgment is final [citations]." (Bradshaw, supra, at p. 1251.) Burden has given us no reason to depart from precedent on this issue and did not file a reply brief after the Attorney General cited and relied upon many of the same cases discussed in Bradshaw. We therefore conclude that, to avail herself of the benefits of Proposition 47, Burden's only option is to petition the trial court for relief once the judgment has become final. (People v. Scarbrough, supra, at pp. 925, 929-930; People v. Shabazz, supra, at pp. 313-314.) III. DeGough's conviction of a lesser-included offense
"In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged.'" (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) However, "a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses." (Ibid.) If a charged crime necessarily involves the commission of a lesser offense, the defendant cannot be convicted of both the greater and lesser offense. (People v. Milward (2011) 52 Cal.4th 580, 585.)
DeGough alleges, and respondent concedes, that he was erroneously convicted of simple possession of methamphetamine under count 2 because that crime was necessarily included in the count 1 offense of possession for sale. It is true that possession of methamphetamine is a lesser-included offense of possession of methamphetamine for the purpose of sale. (People v. Oldham (2000) 81 Cal.App.4th 1, 16.) We accept the concession of error and modify the judgment against DeGough by striking the count 2 conviction and sentence.
DISPOSITION
The judgment against Jennifer Lynn Burden is affirmed. As to Allen DeGough, the count 2 conviction for possession of methamphetamine is reversed and we modify his judgment by striking from it the count 2 conviction and sentence. As modified, the judgment against Allen DeGough is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment that reflects the modification and forward a copy to the appropriate agencies.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.