Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 04F05543
MORRISON, J.
A jury convicted Herman Jerome Johnson and David Turan Johnson of felonies and the trial court sent them to prison. On appeal, they make three contentions: 1) the trial court improperly denied a motion for a continuance; 2) the trial court mishandled their motion claiming the prosecutor exercised peremptory challenges in a racially biased manner; and 3) the prosecutor committed misconduct. We shall reject all three contentions and affirm the judgments.
BACKGROUND
On June 21, 2004, at the Madison Inn, a “party” motel, several Russian immigrants were drinking. When they went outside three Black men approached; when one man nodded, another pulled a gun and robbed the immigrants; the third Black man did nothing. David Johnson and Mitchell Green were arrested within the hour; David Johnson was wearing one victim’s watch and another victim’s wallet was in the vehicle. Herman Johnson was found hiding days later.
Mitchell Green was discharged at the preliminary hearing, due to insufficient evidence that he aided the other defendants in the robbery, although he was present.
At trial David Johnson argued that the victims were so intoxicated that they lacked the ability to perceive and recollect what actually happened that night; he also argued no gun was involved. Herman Johnson argued that the witnesses misidentified him in one of two ways: Either the partiers saw him at the hotel and mistook him for a robbery participant, or they mistook him for the robber who signaled the gunman, but instead he was the passive bystander with the robbers, not one of the two robbers—in other words, the victims confused him for Mitchell Green.
The jury convicted David Johnson of two counts of second degree robbery and found he used a firearm in the commission of those offenses. (Pen. Code, §§ 211, 12022.53, subd. (b).) The jury also convicted him of four counts of assault with a firearm. (Id., § 245, subd. (a)(2).) The trial court sent him to prison for 17 years 4 months.
The jury convicted Herman Johnson of two counts of second degree robbery while a principal was armed. (Pen. Code, §§ 211, 12022, subd. (a)(1).) The trial court found he had a strike, a prior robbery conviction. The court sent him to prison for 14 years 4 months.
David and Herman Johnson timely appealed.
DISCUSSION
1. Denial of Continuance
Before jury selection, Herman Johnson moved for a continuance to obtain an expert on cross-racial identification. The motion was denied. He renewed the matter in a motion for a new trial, which was also denied.
Whether to grant a continuance rests within the broad discretion of the trial judge and defendants, as the appellants, bear the burden to demonstrate the trial court abused his discretion. (See People v. Panah (2005) 35 Cal.4th 395, 423.)
“When a continuance is sought to secure the attendance of a witness, the defendant must establish ‘he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.’ [Citation.] The court considers ‘“not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”’” (People v. Jensen (2000) 22 Cal.4th 900, 1037.)
On Tuesday, April 19, 2005, Herman Johnson’s counsel moved for a continuance, stating as follows: He had an understanding with Dr. Blender, an identification expert, that he would be available for the trial, which had been scheduled to begin in mid-March, 2005. Counsel had not subpoenaed Dr. Blender, but had written him a letter asking if he would be available by mid-April; counsel then went on vacation. When counsel returned from vacation on Thursday, April 14, 2005, he found a message from Dr. Blender, stating he would not be available until after May 4, 2005. Counsel asserted that issues about cross-racial identification were significant in this case because the victims were Russian Caucasians and the defendants were Black: In particular, one defense would be that the victims mistook Herman Johnson for Mitchell Green, who had been identified as an active participant in the robbery before trial but exonerated when a victim identified Herman Johnson at the preliminary hearing instead of Green as a participant.
However, Herman Johnson refused to waive time to accommodate counsel’s motion.
The court clarified that the defense would be that Herman Johnson was present but the victims were confused about who did what. The court found the defense could find a new expert on the subject and—based on an offer of proof—found the identification was corroborated. The court encouraged counsel to try to find another expert and denied the motion.
When the trial court suggested counsel try to find another expert counsel conceded, “I think it can be done,” but explained that he already had a relationship with Dr. Blender. The court stated that an expert would not be allowed to testify as to identifications in this case but only about cross-racial identifications in general (see People v. McDonald (1984) 37 Cal.3d 351, 366-369, overruled on other grounds by People v. Mendoza (2000) 23 Cal.4th 896, 914), therefore there was no reason why another expert would not do.
On appeal counsel states, “It was not for appellant (who has, in any event, a history of mental illness) . . . to make the tactical decision about whether to call an expert and the importance of having an expert testify.” The passing claim of mental illness is unsupported and although the decision to call an expert may have been counsel’s, the decision to waive time is not ordinarily counsel’s. (See 5 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Crim. Trial, §§ 317-323 [counsel cannot waive constitutional speedy trial rights, only statutory speedy trial rights, and even that ability is limited].)
The record indicates trial counsel conceded he could have obtained another expert, although that was not his preference, and it might involve some administrative difficulty. At no time later in the trial did counsel report back on his efforts to obtain another expert, therefore it appears he made none. Instead, counsel emphasized the problems with the identifications through cross-examination and argument. (See People v. Sanders (1995) 11 Cal.4th 475, 510 [no prejudice in excluding expert testimony on identifications where “counsel extensively cross-examined eyewitnesses concerning the accuracy and reliability of their testimony,” instructions pointed out factors to consider in evaluating eyewitness testimony, and counsel argued the matter to the jury].)
Thus, counsel did not establish that the continuance was necessary, his client refused to waive time for trial, and counsel had not subpoenaed Dr. Blender or otherwise ensured his availability for trial. In these circumstances we cannot say the trial court abused its discretion in denying the motion for a continuance or the subsequent new trial motion on this point.
2. Jury Selection Issues
Defendants contend the trial court should have granted their Batson-Wheeler motion due to the prosecutor’s alleged race-based exercise of a single peremptory juror challenge. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.) We find no error.
The trial court found defendants established a prima facie case of racial discrimination in the prosecutor’s exercise of a peremptory challenge to juror J, a Black male who had served on two court-martial panels while in the Air Force. In response to the trial court’s invitation, the prosecutor explained that J misspelled words on his questionnaire (including “pshyic” for “psychology”), had a psychology background, seemed “sorry” for people who had been court-martialed and, based on J’s work with mentally ill and homeless people, “seemed liberal-minded in the sense that he would base a decision on emotion because he felt sorry for the people.” In particular, since it was at that point not known whether or not Herman Johnson was going to have a psychologist testify as to the problems with cross-racial identification, the prosecutor was leery of having any jurors with psychology backgrounds serve in this case.
The trial court stated that J was hard to understand due to his mumbling, and the prosecutor at one point said, “I was understanding less and less, and so I just kind of stopped asking him questions.” Because the trial court found J so hard to understand he wanted a readback or transcript of J’s voir dire so the court could consider it before ruling on the defense motion.
The next morning the court had reviewed a transcript of J’s voir dire and realized the problem was not so much J’s mumbling but his syntax. We give an example. When the prosecutor asked J whether knowing the person being court-martialed had made serving on a court-martial “worse or better” he replied:
“More or less like you was saying, and like they was indicating, everybody knew each other. So it wasn’t that you didn’t know what was going on in situations like that. Just more or less, honestly, tell the truth. Didn’t have no choice. It wasn’t make up a situation. The military doesn’t work like that, because there’s only so many people there. You can’t be saying situations -- stuff like you can hear out of the service. You just don’t go for that, because it doesn’t exist, and you can’t say it does.”
When the prosecutor tried to clarify if J meant that more excuses worked outside of the military he seemed to agree and when she asked how he felt about that J said:
“This is much better. The situations is you have more freedom, because like I was indicating there, there you’re there. Get locked up, you’re locked up. And that’s a lock up you don’t want, put in that situation.”
The trial court denied the motion, finding each of the prosecutor’s stated reasons was legitimate and race-neutral; in particular the court mentioned J’s comparisons of serving on court-martial juries with serving on this jury.
In upholding a challenge, a trial court need not agree with the reasons, but must find that they are genuine, specific and free of bias. They can be subjective or trivial, including body language, attitude, lack of attention and so forth. (People v. Arias (1996) 13 Cal.4th 92, 136; Wheeler, supra, 22 Cal.3d at p. 275; People v. Allen (2004) 115 Cal.App.4th 542, 547; People v. Walker (1998) 64 Cal.App.4th 1062, 1067.)
The ultimate issue is the persuasiveness of the reasons in light of the record, that is, whether the record supports the trial court’s finding that the challenge was lawful. (See Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339 [154 L.Ed.2d 931, 951] (Miller-El I); People v. Reynoso (2003) 31 Cal.4th 903, 907-908 (Reynoso).) Formal findings are not needed:
“Where . . . the trial court is fully apprised of the nature of the defense challenge to the prosecutor’s exercise of a particular peremptory challenge, where the prosecutor’s reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutor’s reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge.” (Reynoso, supra, 31 Cal.4th at p. 929.)
The trial court determines whether the stated reason is genuine and free from discriminatory intent, upon a reasoned evaluation of the prosecutor’s explanation. (People v. Hall (1983) 35 Cal.3d 161, 167-168.) The appellate court gives great deference to the trial court’s finding. (People v. Ervin (2000) 22 Cal.4th 48, 74-75; Reynoso, supra, 31 Cal.4th at pp. 918-919.) But deference is not abdication:
“When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
Defendants argue Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] (Miller-El II) wrought fundamental changes in this area of law. We agree that Miller-El II is a significant case, but it did not change the Batson framework:
“The fundamental inquiry remains the same after [Miller-El II] as before: Is there substantial evidence to support the trial court’s ruling that the prosecutor’s reasons for excusing prospective jurors were based on proper grounds, and not because of the prospective jurors’ membership in a protected group? If so, then defendant is not entitled to relief. In undertaking this inquiry, we note that the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (People v. Huggins (2006) 38 Cal.4th 175, 233.)
Contrary to the defense view, the trial court did not state that “any trivial explanation” was enough; the trial court explicitly found that the explanations given were legitimate, that is, sincere and race-neutral. The record supports the prosecutor’s concern that J viewed himself as a do-gooder who might take pity on a defendant for extra-legal reasons.
Further, although acknowledging at one point that the trial court should not “view[] each of the prosecutor’s stated reasons in isolation[,]” defendants dissect each reason and advance alternative interpretations or inferences. For example, while poor spelling may be a trivial reason in many circumstances, here J misspelled “psychology,” which was a subject he supposedly had studied. Further, J’s study of psychology and his social work support the prosecutor’s concern that he could have a “liberal” mindset, and a prosecutor may choose to strike “do-gooders” off of a jury without running afoul of the Batson rules. (See, e.g., People v. Landry (1996) 49 Cal.App.4th 785, 790-791; People v. Perez (1996) 48 Cal.App.4th 1310, 1315.)
Defendants separately claim the trial court erred by failing to engage in “comparative juror analysis.” However, they failed to develop such an argument in the trial court and nothing in Miller-El II, supra, 545 U.S. 231 [162 L.Ed.2d 196] requires a trial court to perform such an analysis on its own motion. The trial court indicated the defense was free to make a comparative analysis. Further, defendants do not fairly develop their appellate claims by reference to truly comparable factors, no doubt because of the lack of a record to support valid comparisons. For example, appellate counsel states, “It is highly likely that other jurors made comparable spelling errors[,]” but because the issue was not explored in the trial court, there is no record to support such assertion.
Further, the Attorney General has illustrated other flaws in the comparative points proffered on appeal. The prosecutor struck the only other two jurors who indicated they had studied psychology. Whether other jurors who had college degrees or otherwise seemed educated might have taken some psychology courses is not revealed by the record, because trial counsel failed to make a comparative analysis in the trial court. Another juror who had served in the military had also served on two civilian juries, one civil and one criminal, and did not express unusual sentiments about that experience. Thus, his background was not comparable to J’s in this regard.
The fact the prosecutor spent more time questioning J is explained by the confusion in J’s answers, as the trial court impliedly found. Therefore, the record does not support the claim that the prosecutor improperly singled J out for disparate questioning. That the prosecutor did not question a juror who believed her son had been treated too harshly on drug charges, a juror whose sister was a public defender, a juror who was a probation officer and a juror who had a drunk-driving conviction does not reflect any nefarious purpose in her questioning of J nor in her decision to challenge J, despite counsel’s assertion that these factors should have raised “red flags” about those other jurors. Had a comparative analysis been made in the trial court, perhaps a record supporting the assertion of disparate questioning could have been made, but on this record the claim is untenable.
On this record we uphold the trial court’s ruling.
3. Prosecutorial Misconduct Claims
Defendants claim the prosecutor committed reversible misconduct. We disagree.
A.
Two alleged victims, Geouard Dauterive and Alex Alekseyev, were subpoenaed but did not appear at trial. The parties discussed this circumstance at length and eventually the trial court overruled the defense claim that their lack of cooperation should be introduced as evidence.
Later the prosecutor questioned an officer who had prepared a photographic lineup with Herman Johnson’s picture:
“Q. [D]id you meet with Geouard Dauterive?
“A. Yes, I did.
“Q. Where did you meet with him?
“A. In the lobby of the Madison Inn.
“Q. And what was the purpose of your meeting with Geouard at that time at that location?
“A. [Defense counsel]: Your Honor, I’m going to object.
“THE COURT: Sustained.
“Q. When you met with him, was he alone?
“A. Yes, he was.
“Q. Did you show him the photographic lineup containing –
“[Defense counsel]: Objection, Your Honor. This is calling for hearsay.
“[Prosecutor]: No, it doesn’t. I’m not asking his responses. I’m asking did he do something.”
At that point the trial court excused the jury. Defense counsel argued that the issue of Dauterive’s unavailability for trial had been discussed at length, and therefore the attempt to get into evidence the alleged fact that he had identified Herman Johnson in the photographic lineup reflected prosecutorial misconduct. The prosecutor stated she was merely trying to show Dauterive had been cooperative and she had not been planning to ask if he had made an identification. The defense replied that fact he was cooperative at that point was irrelevant to any issue at trial.
The trial court acknowledged that the precise issue of the lineup had not been discussed before trial “because it’s not an issue if you don’t have Dauterive. You can’t go there. And what you did was try and create an inference in the minds of the jurors that he showed him a lineup, and if there was anything bad, if he couldn’t ID, then the defense would bring it up. [¶] So you know, what’s the relevance?”
When the prosecutor reiterated it was her intent to show the witness was cooperative the trial court reminded her that the defense had been trying to show he was uncooperative and the prosecutor had objected to the proposed defense evidence, that is, that Dauterive had not obeyed the subpoena.
After dressing down the prosecutor for her actions the trial court concluded the incident did not warrant granting a mistrial but an admonishment would suffice. The court also reversed its earlier ruling regarding evidence of Dauterive’s failure to comply with the subpoena, as a matter “of fundamental fairness” to the defense.
The court admonished the jury that the questions and answers about the photographic lineup were stricken from the record and should not be considered in any way; the court reminded the jurors about a pretrial instruction that the jury should not speculate about the reason why any evidence is excluded or any objection sustained; the court also directly asked if any juror had any difficulty understanding the admonishment and none did.
After the People rested the court instructed the jury that Dauterive had been personally served with a subpoena, and because he had failed to appear the court had issued a bench warrant which was still outstanding.
Defendants assert the prosecutor’s questions effectively conveyed that Dauterive identified Herman Johnson.
“‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. . . . In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’” (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
No evidence about any identification Dauterive may have made was admitted, due to defense counsel’s prompt objections. Further, we presume that jurors follow instructions and admonitions except in very limited circumstances. (See, e.g., People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) For example, a question including inflammatory and irrelevant content about a defendant (e.g., references to child molestation or terrorist activities) might cause prejudice even if the question is not answered. But in this case the questions merely asked the officer what he had done, not what Dauterive had said or done, and did not imply any inflammatory facts about Herman Johnson. The trial court promptly and thoroughly admonished the jury. We see no reason why the jury would have any inherent difficulty following the admonition, and therefore uphold the trial court’s ruling denying the mistrial motion.
B.
Defendants contend the prosecutor improperly vouched for the victim-witnesses. This claim is based on statements made during the prosecutor’s rebuttal argument, to which no objections were interposed. The failure to object forfeits the contention of error. (People v. Ward (2005) 36 Cal.4th 186, 215 (Ward).) In any event it lacks merit.
“‘“[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” [Citation.] “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness”’ [citation] . . . .”’ [Citation.] Nevertheless, ‘[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citation.] Nor is a prosecutor permitted to place the prestige of [her] office behind a witness by offering the impression that [she] has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [her] comments cannot be characterized as improper vouching.’”
(Ward, supra, 36 Cal.4th at p. 215.)
In this case the prosecutor did not express her personal belief in the truth of the victim-witnesses. She asked rhetorically why they would put themselves through the trouble of coming to court “if there was no gun;” she also referred to their construction jobs, which would not pay them for coming to court, arguing “there’s a lot at stake coming here, and they took the prospect of testifying seriously.” She later argued they were not coached, because if they had been “[t]here would be no discrepancies, no inconsistencies.”
Read in context, the prosecutor tethered the claims that the victims were truthful to facts in the record. The record citations supplied do not support the defense claim that the prosecutor improperly vouched for their honesty.
C.
Defendants contend the prosecutor injected racial stereotypes into the trial. Defendants concede they interposed no objection to this alleged conduct. “Accordingly, [they have] not preserved [their] claims.” (People v. Ochoa (1998) 19 Cal.4th 353, 427-428.) In any event, the claims fail.
The first claim is that at one point in rebuttal argument the prosecutor held up a booking photograph of David Johnson and made a comment that was a veiled racial inference. Otherwise improper arguments may be fair if made in response to a defense argument. (People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Hill (1967) 66 Cal.2d 536, 560-562 [“a prosecutor is justified in making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel and are based on the record”].) However, tactics “appealing to or likely to incite racial prejudice” are improper. (People v. Cudjo (1993) 6 Cal.4th 585, 625-626.)
In the prosecutor’s opening argument, she had held up or referred to photographs in evidence of Mitchell Green, Herman Johnson and David Johnson, arguing witnesses had consistently identified David Johnson as the person with the gun, that Herman Johnson helped, and that Mitchell Green was present but was the person who did not participate in the robbery. She argued the testimony and reasonable inferences therefrom showed David Johnson used a real gun.
David Johnson’s counsel argued no gun was ever found and the story told by the victims and their demeanor indicated no gun was involved, that they were angry when the police arrived, but not afraid. David Johnson’s attorney held up his booking photo, arguing it did not match the description given by the victims.
In partial response, the prosecutor commented that “people on the day they commit crimes don’t look like they look in court. And I submit to you that that is the face of somebody that can put a gun to Lev Maslov’s head and tell everybody in the hallway to empty their pockets. [¶] Does he look like he would have used a fake gun or no gun, or that the victims, if they say that there was a gun, that he, in fact, used it? And you’ll see those photographs. [¶] And the victims in this case are young Russian men. And I believe that Lev did tell us that he was scared while this was happening.” She then argued that nobody could predict what a person’s reactions would be after being held up at gunpoint.
Defendants contend the quoted passage, particularly the juxtaposition of “young Russian men” against the photograph of a Black defendant, was an effort to appeal to racial stereotypes on the part of the all-White jury. We disagree. The reference was to the youth and immigrant status of the victims, and the prosecutor was attempting to rebut the defense claim that the victims had not been scared when the police arrived. Defense counsel had herself referred to the same photograph, in an effort to show the image depicted did not match descriptions given to the police. It was quite proper for the prosecutor to refer to the same photograph and invite the jury to draw a different inference therefrom.
The second claim is that the prosecutor referred to a neighborhood in such a way as to portray it as a crime-ridden Black ghetto. The record does not support the claim.
Victim Linsky testified that his car keys had been taken but he got them back about a week later through Maslov. Maslov testified that a day or so after the robbery someone left a message with his father stating they had found some identification papers and receipts in front of their house and wanted $100 for them; Maslov’s father retrieved the papers and Linsky’s car keys.
The defense argued this was “entirely bizarre” and “just crazy,” and suggested Maslov made up the robbery tale. In response, the prosecutor argued, “that’s probably just the way neighborhoods in North Highlands work. It’s an area of Sacramento County where it’s a shame that somebody who found somebody’s lost property on their lawn is going to turn around and charge somebody to get it back.”
The lack of objection not only precludes our review of the claimed error, it suggests that trial counsel did not interpret the comment, in context, as a racist comment. In our view the remark was at worst a reference to poverty, not race. Nothing in the record shows this was designed to appeal to any racist stereotypes on the part of jurors. The remark was tied to the evidence and fairly responded to a specific defense argument about that evidence. We find no error.
DISPOSITION
The judgments are affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.