Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR186577
Pollak, Acting P. J.
Defendant Michael Edward Mackey appeals from his conviction for murder, attempted murder, and two counts of robbery. He argues that the prosecutor exercised his peremptory challenges in a racially discriminatory manner, that there was insufficient evidence to support one of the robbery convictions, and that the trial court improperly awarded restitution without supporting evidence. We find no merit to these contentions and therefore shall affirm.
Background
At trial there was substantial evidence of the following facts. On October 17, 2006, Rob Thomas, Richard Miller, and defendant had plans to meet Daniel Reyes and Tomas Gonzalez. Reyes and Gonzalez believed that Thomas, Miller and defendant intended to purchase from them approximately 12 ounces of marijuana for $3,000, but the three intended to take the marijuana by force. Before the meeting, Miller gave defendant a gun. When the two groups met in a parking lot, the drugs were wrapped in foil in a plastic bag, inside a duffle bag in the back of Reyes’ car. Miller and defendant got into the back seat of the car that Reyes was driving with Gonzalez in the passenger seat. At defendant’s direction, Reyes drove to Wilson Park, where the four occupants first viewed the marijuana in the trunk of the car and then returned inside the vehicle leaving the marijuana in the rear of the car. When Reyes asked for the money, defendant gave Gonzalez approximately $10 in one dollar bills. Gonzalez threw the money back at defendant, an argument ensued, Miller grabbed the marijuana and left the car, and defendant shot Gonzalez and Reyes. Defendant and Miller fled with the marijuana. Reyes died; Gonzalez underwent multiple surgeries and remained in a coma for five days.
Thomas also got into the back seat but left the car before the drugs were examined at the park and the shootings occurred.
Defendant was charged by information with one count of murder (Pen. Code, § 187); one count of second degree robbery from Reyes (§ 211); one count of attempted murder (§§ 187, 664); and a second count of second degree robbery (§ 211) from Gonzales. All four counts included allegations under section 12022.53, subdivisions (b) and (d) that defendant used a firearm causing great bodily injury and death, and that he personally used a firearm within the meaning of sections 12022.53, subdivision (c). The first and third counts also alleged use of a firearm under section 12022.5, subdivision (a)(1).
Further statutory references are to the Penal Code.
Defendant pled not guilty. His trial was severed from the trial of his codefendants and a jury found him guilty of all four counts and found all of the enhancements to be true. The court sentenced defendant to the midterm of seven years for the attempted murder, as the base term, plus 25 years to life for the use-of-a firearm enhancement under section 12022.53, subdivision (d). The court also imposed a consecutive term of 25 years to life for the murder and imposed an additional consecutive term of 25 years to life for the use-of-a-firearm enhancement, for an aggregate term of seven years plus 75 years to life. The court imposed but stayed two 3-year terms for the robbery convictions, and stayed imposition of sentence on all of the remaining allegations. Defendant was ordered to pay various fines and restitution to the family of Reyes and restitution to Gonzalez in the amount of $50,000, with jurisdiction reserved to determine additional restitution to which Gonzalez might become entitled.
Discussion
Batson/Wheeler Challenge
Defendant, who is African-American, unsuccessfully challenged the composition of the jury under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). He now contends that the trial court erred in denying his Batson/Wheeler motion.
During jury selection, the prosecutor exercised his fourth peremptory challenge against Ms. P., an African-American woman. In objecting under Batson and Wheeler, defendant stated that he believed Ms. P. “was excused based on her race.” The prosecutor responded that a prima facie showing had not been made. He stated that at that point he had exercised four peremptory challenges, one to “Juror number 6, who appeared... to be about an 18-year-old male, probably Asian descent,” one to “a White or Hispanic female,... about 18, 19 years old,” one to “another White or Hispanic female, about the same age,” and one to Ms. P., “who is a Black female, about 19 years old. Her juror information shows she graduated high school and has had a job about a year and a half. I think that would make her about 19, without any life experience, or any family or children. [¶]... [¶] [Ms. P.] is the only Black person on the jury, aside from [Ms. V.]. [Ms. V.] has been challenged for cause by both the prosecution and the defense. Statistically, there is not a basis for a prima facie case.”
The court observed that it had been expecting one of the attorneys to exercise a peremptory challenge to Ms. V. because both sides had challenged her for cause but the court had denied the challenges, and that a peremptory challenge to that juror was appropriate. Regarding Ms. P., the court stated, “I didn’t hear any response from her whatsoever that in any way appeared to me to be out of the ordinary. And the problem here is, unless another African-American juror is selected, at this point you have effectively removed all of the African-American jurors from the panel.” The court accepted the prosecutor’s explanation that his decision was made based on her age and life experience. “Everyone knows young jurors have a hard time deciding cases like this, with no life experience. She has been out of high school a year. She hasn’t been to college. She doesn’t have a family.... She is only 19. I kicked off... the first guy... for the same reason, and the next two,... who are 18 or 19.”
The following day the court ruled on the motion. It began by reviewing what had transpired. “At the time this motion was made we were beginning the peremptory challenges.... [There] were seated at the time two African-American prospective jurors, one of whom... both sides had requested that the court excuse for cause, and the court had denied both requests. The other juror was female, who, in the court’s opinion had relatively neutral answers to all of the questions asked of her. This juror was excused by the People, and thereafter the Batson/Wheeler objection was made.... [¶] The court listened to the objection of [defense counsel] and did determine that there was a prima facie case made.... As I indicated, I thought that this juror’s responses to the questions were relatively neutral. I didn’t really hear anything that would have, to the court, raised a concern, and I expressed a concern at that point, that because you had only two African-American jurors at that point, one of whom I felt could be challenged by either side, that having excused the second African-American juror, we had no African-American jurors, and I was very concerned about it.... [¶] [The prosecutor] thereafter indicated his reasons for the exercise, primarily due to the witness’s age, lack of life experiences, and indicated that he felt that in a case of this nature, he wanted jurors that had—that were mature, and he felt that that particular juror did not have the life experiences necessary. He also pointed to the fact that he had excused several other young jurors for the same reason.”
The court then gave the prosecutor an opportunity to explain further. The prosecutor reiterated that Ms. P. “graduated from the 12th grade, and had only a year and a half work experience, which made her about 19 based on the way she looked. And based on her form, she wasn’t married, she didn’t have children, and she gave, not bad answers, but not much in the way of the answers or much information. She was similar, I thought also to the first juror I excused....” He explained that this juror and another four panel members he had exercised peremptory challenges against had also appeared to be between 18 and 20 years old. He explained that of the jurors who had been seated but nevertheless were young, “the youngest one has already served on a jury and works in a bank. The other one is a medical worker and I believe has graduated from college.” Finally he noted that there were two African-Americans who had been seated on the jury, “which I think is statistically probably consistent with the makeup of this county, although I will admit that the venire of this jury did not have a lot of African-Americans in it.”
The court observed, “I have had [the prosecutor] many times in my court, and I do not feel that he was attempting to take jurors off this panel because of their racial makeup, and I do accept his explanation that he was concerned with the life experiences of jurors, and that is what his primary motivation was. And he indicated this was pretty much across the board, males, females, and various racial backgrounds, and ethnic backgrounds. So having said that, I did accept his explanation.”
“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.” (People v. Lenix (2008) 44 Cal.4th 602, 612.) “The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Id. at pp. 612-613.)
“[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California (2005) 545 U.S. 162, 170.) We need not evaluate whether there was a sufficient showing to meet this first requirement because the trial court ruled on the sufficiency of the prosecutor’s reasons. “Once the trial court ruled on the credibility of the prosecutor’s stated reasons, the issue of whether the defense had made a prima facie showing became moot.” (People v. Jurado (2006) 38 Cal.4th 72, 104.)
In reviewing the trial court’s assessment of the legitimacy of the prosecutor’s reasons, “the trial court is in the best position to determine whether a given explanation is genuine or sham. For that reason, we continue to accord great deference to the trial court’s ruling that a particular reason is genuine.” (People v. Fuentes (1991) 54 Cal.3d 707, 720-721.) “A prosecutor asked to explain his conduct must provide a ‘ “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection.” (People v. Lenix, supra, 44 Cal.4th at p. 613.)
The record supports the trial court’s finding that the prosecutor did not challenge Ms. P. or other panel members with a discriminatory motive. The prosecutor excused other jurors whom he perceived to be young and lacking in life experience. Defendant argues that the prosecutor also allowed some young jurors to be seated. Although comparative analysis is appropriate in considering the validity of the prosecutor’s explanation (People v. Lenix, supra, 44 Cal.4th at p. 622), the prosecutor’s explanation was consistent with his acceptance and rejection of other prospective jurors. As just indicated, the prosecutor did challenge other non-African-American panel members who were young and just out of school; the younger persons he did not challenge appeared to be somewhat older and to have additional experience beyond high school. The fact that the prosecutor challenged some panel members who did have the “life experience” he said he was seeking is hardly dispositive, since there were other factors that readily explain those challenges. Moreover, “comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” (Ibid.) Age and lack of life experience are valid, nondiscriminatory reasons for exercising a peremptory challenge. (People v. Cruz (2008) 44 Cal.4th 636, 657-658.) The fact that the prosecutor may not have used peremptory challenges against other young panel members does not render the reason given for this one invalid. “Two panelists [i.e., prospective jurors] might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (People v. Lenix, supra, at p. 624.)
Moreover, two African-Americans ultimately served on the jury, which also undermines any inference of improper bias. (See People v. Cornwell (2005) 37 Cal.4th 50, 69-70 [“The circumstance that the prosecutor challenged one out of two African-American prospective jurors does not support an inference of bias, particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury”], disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Gray (2005) 37 Cal.4th 168, 188 [no inference of discrimination raised where prosecutor excused two African-American’s from the jury but two remained]; People v. Snow (1987) 44 Cal.3d 216, 225 [that the prosecutor accepted a jury containing minorities “may be an indication of the prosecutor’s good faith in exercising his peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection, [although] it is not a conclusive factor”].)
Robbery of Gonzalez
Defendant next argues that there was insufficient evidence that Gonzalez had constructive possession of the marijuana to support the second robbery conviction. “In evaluating a claim of insufficient evidence, we review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] All conflicts in the evidence are resolved in favor of the judgment and all reasonable inferences are drawn in its favor.” (People v. Neely (2009) 176 Cal.App.4th 787, 793.)
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property.” (People v. Scott (2009) 45 Cal.4th 743, 749.) “A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute. [Citations.] ‘[T]he theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.’ [Citation.] Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken.” (Id. at pp. 749-750.) Constructive possession may be established by demonstrating “some type of ‘special relationship’ with the owner of the property sufficient to demonstrate that the victim had authority or responsibility to protect the stolen property on behalf of the owner.” (Id. at p. 753.)
There was sufficient evidence that Gonzalez had constructive possession of the marijuana. Reyes’ girlfriend testified that she heard Reyes ask Gonzalez to accompany him on the drug sale because Reyes did not want to go alone. Reyes told Gonzalez that in exchange he would be given some of the money from the sale. “It is not necessary that the victim of the robbery also be the owner of the goods taken. Robbery is an offense against the person who has either actual or constructive possession over the goods. [Citation.] Thus, a store employee may be a victim of robbery even though he does not own the property taken and is not in charge or in immediate control of the property at the time of the crime. [Citations.] Nor is it a defense that the victim was a visitor to a store and was not the true owner of money or property taken. [Citation.] Furthermore, a person may be convicted of robbing a janitor or night watchman by taking the employer’s property.” (People v. Estes (1983) 147 Cal.App.3d 23, 26-27.)
The evidence supports a finding that Gonzalez was an active participant in the transaction. Reyes did not want to engage in the transaction alone. Gonzalez was the person to whom defendant handed the dollar bills before the robbery took place. Although the testimony indicates that Reyes was the owner of the marijuana, it also supports a finding that Gonzalez was acting for the benefit of Reyes and was being paid for his participation in the transaction. Therefore there was sufficient evidence that Gonzalez had constructive possession of the marijuana and was also a victim of a robbery.
The evidence that Gonzalez was an active participant in the transaction distinguishes this case from People v. Ugalino (2009) 174 Cal.App.4th 1060. In that case the court overturned a conviction for attempted robbery were the victim, Rider, was merely a roommate of the drug dealer who happened to be present in the house when the attempted robbery took place. The court noted that “[i]t was undisputed that Rider did not have actual possession of the marijuana, and [the dealer] stored the marijuana locked in a safe in his bedroom. There was no evidence Rider, who had been living with defendant for only three to four months, had access to the safe. In fact, Rider did not even have a key to the apartment, most of the time coming and going only when someone else was home.” (Id. at p. 1065.)
Restitution
Defendant argues that the court abused its discretion in awarding restitution to Gonzalez of $50,000 because this amount was not supported by testimony or medical bills. Defendant waived his right to challenge the restitution award by failing to object below. “Claims of error relating to sentences ‘which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner’ are waived on appeal if not first raised in the trial court. [Citation.] For example, the waiver doctrine precludes appellate review in cases where a defendant fails to object to the reasonableness of a probation condition. [Citation.] The California Supreme Court has explained: ‘A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.’ ” (People v. Brach (2002) 95 Cal.App.4th 571, 577.)
An objection to the amount of the restitution is not, as defendant argues, nonwaivable. “The unauthorized sentence exception is ‘a narrow exception’ to the waiver doctrine that normally applies where the sentence ‘could not lawfully be imposed under any circumstance in the particular case,’ for example, ‘where the court violates mandatory provisions governing the length of confinement.’ [Citations.] The class of nonwaivable claims includes ‘obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.’ ” (People v. Brach, supra, 95 Cal.App.4th at p. 578.) The appropriate amount of restitution is precisely the sort of factual determination that can and should be brought to the trial court’s attention if the defendant believes that the award is excessive.
In any event, the order here was well within the trial court’s discretion. Section 1202.4, subdivision (f) provides in part that “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (Italics added.)
“ ‘The standard of review of a restitution order is abuse of discretion. “A victim’s restitution right is to be broadly and liberally construed.” [Citation.] “ ‘When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.’ ” ’ ” (People v. Baker (2005) 126 Cal.App.4th 463, 467.) “A trial court’s determination of the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion. [Citation.] No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss, nor must the order reflect the amount of damages recoverable in a civil action. [Citation.] In determining the amount of restitution, all that is required is that the trial court ‘use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.’ [Citation.] The order must be affirmed if there is a factual and rational basis for the amount.” (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.)
At the sentencing hearing the prosecutor stated that “as to Mr. Gonzalez, the second victim in the case, there’s no determined set of medical expenses, because they are ongoing, but they are in excess of six figures, so I’m going to ask the court to reserve jurisdiction as to that, and order a figure at least of $50,000.” Gonzalez spoke with the probation officer and told the officer that “his injuries were very extensive and the medical costs were over $100,000. He is considering filing bankruptcy, as he is unable to pay the medical expenses.” Defendant did not object to this assertion, to the amount awarded by the court, or to the reservation of jurisdiction. Given the seriousness of Gonzalez’s injuries, $50,000 undoubtedly is well within the amount of his medical expenses.
Moreover, subdivision (f)(1) of section 1202.4 provides a mechanism for modification of a restitution order. It provides that a defendant “has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion.” This procedure is available to challenge the amount of any additional restitution the court may award based on evidence of further medical expenses.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.