Opinion
C049739
12-4-2006
THE PEOPLE, Plaintiff and Respondent, v. KERRY LEWIS DUNCAN et al., Defendants and Appellants.
Sacramento narcotics officers arrested defendants Kerry Lewis Duncan and Billy Jerome Lacey on October 13, 2004, in the course of an undercover buy-bust operation in Oak Park.
A jury found defendants guilty of selling cocaine base. (Health & Saf. Code, § 11352, subdivision (a) — count one). In bifurcated proceedings, the court found true the allegation that Duncan had suffered two prior convictions within the meaning of section 11370.2, subdivision (c). It also found true the allegation Lacey came within the provisions of the Three Strikes law based on a prior burglary conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12 & 1192.7, subd. (c).) The court sentenced Duncan to 10 years in prison: the middle term of four years on count one; and two consecutive three-year terms pursuant to the section 11370.2, subdivision (c) enhancement. The court sentenced Lacey to eight years in prison: the middle term of four years doubled to eight years for the "strike."
Hereafter, undesignated statutory references are to the Health and Safety Code.
On appeal, defendants argue the denial of their "Batson-Wheeler" motion deprived them of their constitutional right to a jury drawn from a representative cross-section of the community. Specifically, defendants, who are Black, maintain the prosecutor improperly used his peremptory challenges to excuse two potential jurors on the basis of their race. Duncan also contends there is insufficient evidence to support the courts finding that his prior drug-related convictions came within section 11370.2, subdivision (c). We shall affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162 (Johnson) [rejecting "more likely than not" standard for prima facie inquiry under Batson].
FACTUAL AND PROCEDURAL BACKGROUND
The prosecutor exercised peremptory challenges to excuse Mr. Peoples and Mr. Herron as prospective jurors. Both men are Black. We set forth the relevant portions of the voir dire examination and the hearing on defendants Batson/Wheeler motion.
Voir Dire of Mr. Peoples:
During voir dire, the court asked prospective jurors whether they or their family members had "in the past had any drug or substance abuse related problems." Peoples responded that his college roommate at Humboldt State University was arrested for possessing and/or transporting marijuana, and punished with time served.
The court then explored the prospective jurors responses to the questionnaires. Peoples indicated he and his grandmother had been victims of burglary and three of 10 friends he had grown up with had been murdered. He also stated that his brother stole a "stock car" when he was "younger." Peoples told the court he had an older brother who "got in a lot of problems and [Peoples] witnessed a few assaults with him."
Counsel for Duncan questioned Peoples about family or friends with drug addiction. Peoples stated his mother had a drug problem when she was younger, but currently worked in prevention. He acknowledged there was a history of drug addiction in his family. When asked if his mothers addiction was a problem when he was growing up, Peoples responded, "Not really. To be honest with you, we had strong family ties." Peoples stated, "[I]f things werent right at home I could go to my grandmothers house."
Later, after the court questioned more prospective jurors, Peoples raised his hand and volunteered additional facts about his knowledge of drug addiction. He stated, "Obviously my brother Ive been taught it and Ive been told it so I understand the addiction of a lot of different drugs, what the effects are and things like that. [¶] I do have a pretty good knowledge just on a lot of things to do with drug addiction and all that stuff. At the time it wasnt been in my head, but my brothers been in it for 15, 20 years. [¶] Your mother, good mother is going to make sure that you are aware of what the consequences of doing drugs are and things that, you know, what happened when you go to decide whatever youre going to do."
Voir Dire of Mr. Herron:
With respect to Herron, the court repeated its question whether a family member or close friend had ever been the victim of a crime. Herron responded that a cousin had been killed 10 years before in a drug-related incident. He also stated that his daughter had been arrested in Louisiana in a drug-related incident, but not formally charged for eight months. Herron did not feel justice was served in her case. Herron described being cited 15 years before in Sacramento by an undercover officer posing as a prostitute. Finally, Herron mentioned a 1984 incident in which Santa Barbara police had omitted information from a police report as a result of what Herron suspected was racial profiling.
Defendants Motion:
On April 5, 2005, when the jury left for evening recess following jury selection, defense counsel stated off the record that they wanted to bring a Wheeler motion. The court allowed defense counsel to proceed with their motion the following morning.
Counsel for Lacey explained he was not challenging the entire panel. He noted there were only three Black people in the whole panel and argued, "Two of `em made it all the way up into the box here and were summarily dismissed by the D.A. within a short period of each other. And we list systematic exclusion. And there should be a dismissal of the . . . panel for a mistrial." Counsel for Duncan joined in the motion.
After a short discussion on the timeliness of the motion, the court turned to the merits. The court observed there was "an abundant basis for the exercise of a peremptory challenge by the prosecution as to Mr. [Herron]" but did not remember specifics as to Peoples. Because the defense was arguing "the two of them together[] establish[ed] a prima facie case," the court found a prima facie case and required the prosecution to state its reasoning "at least as to Mr. Peoples."
The prosecutor stated there were several things that prompted him to exercise a peremptory challenge against Peoples. "The first was just physical appearance. He was wearing dreadlocks. And its my understanding, my belief that dreadlocks are somewhat associated with a Reggae culture which certainly as a culture has pretty liberal views and I think a lot of times promotes drug use, although maybe specifically marijuana not cocaine base. Certainly drug use in general.
"I [sic] also said that he went to Humboldt State, which just based on reputation alone, my understanding kind of a hot-bed for marijuana use. [¶] Also said that his roommate in college while at Humboldt State was arrested for sale of marijuana, and that that was something that kind of hit pretty close to home for him.
"So we got a number of drug related issues associated with this prospective juror.
"In addition to that, he also said that his brother was a defendant in a stolen car case. Another incident where hes probably in my mind seen the law work in — pretty up close in light of the fact that its his brother.
"Also mentioned three close friends that were victims of murder. Again, would be all examples where hes either seen the system work or not work.
"In addition to that, mention to that, that his mother was a drug addict herself. And that he mentioned several times when he would — not several times, but he did mention one occasion in particular where if things werent all right at home, he was — he would go to his grandmothers house which was very nearby.
"And I got the understanding or my understanding from the way that he was talking and the reasons why things werent all right were because of her addiction. He mentioned several times having knowledge about addiction based on the subsequent turnaround that his mother made.
"And based on the statements and the questions that Ive heard from the defense, I think addiction is going to be something that the defense is gonna try and kind of make an issue in this case. And I dont think that this particular juror is gonna be a juror that I want empaneled with his background on the issues of addiction.
"Thats further bolstered by the fact that he, himself, said that hes talked to his mother a number of times about what addiction is and things of that nature and things that he has a pretty good understanding of what addiction entails. So I would say that those were kind of my biggest reasons for exercising the peremptory against Mr. Peoples.
"As to Mr. [Herron], um, I think there was several things about him that I found that warranted using a peremptory.
"The first one was simply the fact that he mentioned that he got picked up in an undercover sting operation, which is gonna be a situation where you got police officers working in undercover capacity. Thats exactly what we have in this case. . . . [¶] So despite the fact that he thought that he could be fair, in light of the fact that he got himself mixed up in an undercover operation, I found that hard to . . . believe.
"He also mentioned that his cousin had been killed in a drug related incident and that he was some [sic] close to his cousin. [¶] Seems like any time youve got a cousin, family member arguably maybe somewhat of a distant family member, but killed in a drug related transaction of some sort and then here you find yourself on a drug related case, it just kind of makes him kind [of] a wild card. Im not sure, you know, which side of the — the case he would fall down on. But it just seems to me thats maybe a drug type case is not the best type of case for that type of juror.
"The other thing was his daughter. He mentioned, you know, here she is back in Louisiana. She spends eight months in jail according to him, just based on the fact that she opened her mouth or did something along those lines, yet hes — it was his testimony that during voir dire that he didnt have any particularly negative feelings towards the justice system despite the fact at the end of eight months they let her go with no charges being filed. [¶] Sounded to me just walked at the end of eight months and basically just lost eight months of her life and he seemed to put the blame on that incident on her when it certainly seemed to me that if — if you get held for eight months, there certainly ought to be a charge or a preliminary hearing or something that comes of it.
"He mentioned a number of times about having seen up close and personal the effects of drug addiction on people kind of based on his involvement as a . . . I believe he said he worked in the emergency room.
"All of those things in my opinion kind of warranted using a peremptory as to Mr. [Herron]."
Counsel for Duncan argued the prosecutors reference to Mr. Peoples dreadlocks amounted to "racial profiling." He continued, "I believe dreadlocks are something that Africans have. Not very many [W]hite people have them. I think that goes directly to the point of the — the Wheeler Motion." Defense counsel downplayed other facts cited by the prosecution to justify the exercise of peremptory challenges against Peoples and Herron, but did not question the evidentiary support for the prosecutions justification. Counsel for Lacey joined in Duncans argument.
The court denied defendants Wheeler motion, finding the prosecutor articulated a sufficient basis for the exercise of the peremptory challenges against Herron and Peoples.
DISCUSSION
I
The Peremptory Challenges
Defendants challenge the trial courts implied finding that the prosecutors reasons for excusing Peoples were "race neutral." Duncan acknowledges the use of the peremptory challenge against Herron "presents a closer question." Lacey concedes that the exclusion of Herron "may have been proper" based on his statements during voir dire. We conclude the court did not err in upholding the prosecutions use of peremptory challenges against Herron and Peoples.
The Attorney General does not argue on appeal that defendants Batson/Wheeler motion was untimely. Accordingly, we do not address that issue and conclude Laceys claim of ineffective assistance of counsel is moot.
"Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges `for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried, [citation], the Equal Protection Clause [of the United States Constitution] forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the States case against a black defendant." (Batson, supra, 476 U.S. at p. 89 [90 L.Ed.2d at pp. 82-83]; see also Powers v. Ohio (1991) 499 U.S. 400, 405 [113 L.Ed.2d 411, 422] [a defendant of a different race than the challenged juror may object to the use of peremptory challenges as race-based].) Article I, section 16 of the California Constitution guarantees a criminal defendant the right to trial by a jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at p. 272.) Accordingly, the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the California Constitution. (Id. at pp. 276-277.) "Peremptory challenges are permissible only if they are based on specific bias," defined as "`a bias relating to the particular case on trial or the parties or witnesses thereto." (People v. Tapia (1994) 25 Cal.App.4th 984, 1013.)
The three-step procedure for assessing the propriety of peremptory challenges is set forth in Batson. "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.]" (Johnson, supra, 545 U.S. at p. 168 , quoting Batson, supra, 476 U.S. at pp. 93-94 [90 L.Ed.2d at pp. 85-86], and Purkett v. Elem (1995) 514 U.S. 765, 767 [131 L.Ed.2d 834, 839] (Purkett), fn. omitted.)
The prosecutors explanation in step two need not be persuasive or "even plausible." (Purkett, supra, 514 U.S. at pp. 768-769 .) "Thus, even if the State produces only a frivolous or utterly nonsensical justification for its strike, the case does not end—it merely proceeds to step three. [Citation.]" (Johnson, supra, 545 U.S. at p. 171 [162 L.Ed.2d at pp. 139-140].)
In the third step, the court must evaluate the "`persuasiveness of the justification" and "`determine[] whether the opponent of the strike has carried his burden of proving purposeful discrimination." (Johnson, supra, 545 U.S. at p. 171 .) The court has a duty to evaluate the "subjective genuineness" of the race-neutral reasons given for exercising the peremptory challenge. (People v. Reynoso (2003) 31 Cal.4th 903, 924, italics omitted.)
"[T]he trial courts decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal." (Hernandez v. New York (1991) 500 U.S. 352, 364 [114 L.Ed.2d 395, 408-409].) "Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding `largely will turn on evaluation of credibility. [Citation.] In the typical peremptory challenge inquiry, the decisive question will be whether counsels race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutors state of mind based on demeanor and credibility lies `peculiarly within a trial judges province. [Citations.]" (Id. at p. 365 .)
Turning to the case before us, we begin by concluding there were more than enough facts in the record to support the prosecutions use of a peremptory challenge to excuse Herron. We agree with the trial courts initial observation that there was "abundant basis" for the prosecutions excusal of Herron and that "[i]t almost reached the level arguably of excusing him for cause." Based on Herrons personal experience, which included being cited in an undercover prostitution sting operation, and the experiences of his daughter, who was held for eight months without charge in Louisiana, the court could decide the prosecutor was legitimately concerned Herron might retain some level of antipathy toward undercover operations, law enforcement and the criminal justice system in general.
Nor were defendants deprived of their constitutional rights when the prosecutor exercised a peremptory challenge against Peoples. We agree that, standing alone, the prosecutors reference to Peoples dreadlocks may have sent a mixed message that suggested consideration of his race. However, read in its entirety, the prosecutors explanation for excusing Peoples focused on the potential impact of Peoples personal experiences with the drug culture on his view of the prosecutions case. Peoples statements revealed multiple incidents of drug possession and addiction involving people he loved. As voir dire progressed, Peoples interrupted to volunteer that he had "a pretty good knowledge just on a lot of things to do with drug addiction and all that stuff. . . . [M]y brothers been in it for 15, 20 years." On this record, the court could decide the prosecution was legitimately concerned that Peoples life experience, as revealed in voir dire examination, would influence his ability to assess the case objectively.
II
The Enhancement Under Section 11370.2
Duncan argues he is entitled to reversal because there is insufficient evidence to support the courts true finding that he had suffered two prior convictions within the meaning of section 11370.2, subdivision (c), as alleged in the information. There is no merit in Duncans argument because the facts alleged in the information, and found true by the court, come within the meaning of section 11370.2, subdivision (a).
Section 11370.2, subdivision (c) reads in relevant part: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section . . . 11352, . . . , whether or not the prior conviction resulted in a term of imprisonment."
Subdivision (a) of section 11370.2 states in relevant part: "Any person convicted of a violation of, or of a conspiracy to violate, Section . . . 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section . . . 11352, . . . whether or not the prior conviction resulted in a term of imprisonment."
Under California law, the language of the accusatory pleading controls, "not the specification of the statute by number." (People v. Thomas (1987) 43 Cal.3d 818, 831 (Thomas), citing People v. Marshall (1957) 48 Cal.2d 394, 404.) Where the defendant is clearly informed of the nature of the offense, "`even a reference to the wrong statute has been viewed [to be] of no consequence." (Thomas, supra, at p. 826.) "`The defect [is] merely one of artificiality rather than substance." (Id. at p. 827.)
Here, the information charged Duncan in the current offense with unlawfully selling cocaine base in violation of section 11352, subdivision (a). The information also alleged that Duncan was "convicted of the crime of sales of a controlled substance in violation of Section 11352" in 1987 and 1995. There is no claim Duncan lacked notice he was potentially subject to the section 11370.2, subdivision (a) enhancement, based on the current charge of violating section 11352 and the two prior convictions of the same offense. That the information cited the wrong subdivision of section 11370.2 is of no consequence. (Thomas, supra, 43 Cal.3d at p. 826.)
DISPOSITION
The judgment is affirmed. The court is directed to correct the abstract of judgment to show defendant was sentenced to two enhancements under section 11370.2, subdivision (a), and to forward the corrected abstract to the Department of Corrections and Rehabilitation.
We concur:
BLEASE, Acting P.J.
ROBIE, J.