Opinion
NOT TO BE PUBLISHED
Superior Court County No. YA065243, of Los Angeles, Mark S. Arnold, Judge
Laurie Buchan Serafino, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Praise Nnamdi Odiakosa guilty of nine counts of second degree robbery (Pen. Code, § 211), two counts of attempted second degree robbery (§§ 664/211), and one count of receiving stolen property (§ 496, subd. (a)). We reverse the count of receiving stolen property. In all other respects we affirm.
All statutory references are to the Penal Code.
FACTS
On May 26, 2007, a black car carrying two African-American men approached Jong Han Kang as he walked out of his house. Odiakosa was one of the men in the car. Odiakosa pointed a handgun at Kang and demanded money. Kang held out his wallet, Odiakosa grabbed it and drove off. Kang identified Odiakosa as the robber in a photographic lineup and in court. Kang also identified Odiakosa's car as the one used in the robbery.
On May 31, 2006, a black car pulled up next to William Owens. Odiakosa got out of the car with a handgun. Odiakosa demanded money and Owens gave him his wallet. Owens identified Odiakosa in a photographic lineup and in court as the robber. Owens also identified Odiakosa's handgun and car as similar to the ones used in the robbery.
On June 4, 2006, Veronica Cruz and Juan Aguayo were sitting on the sidewalk outside Cruz's apartment. A black car with two men drove up. Odiakosa got out of the car holding a handgun. When Aguayo stood up, Odiakosa pointed the gun at him and said, "That's my bag." Odiakosa grabbed the bag and told Aguayo to give him his wallet. Aguayo gave Odiakosa his wallet. Odiakosa also took his cell phone and watch. Then Odiakosa ran the muzzle of the gun across Cruz's chest, touching her skin. He also touched her face and hair with the muzzle of the gun. Odiakosa got back into the car and drove off. Aguayo identified Odiakosa as the robber at trial. He also identified pictures of Odiakosa's car and handgun as similar to those used in the robbery.
On June 7, 2006, Mauro Pendilla was doing yard work when a black car stopped in front of the house. Odiakosa got out of the car, pointed a handgun at Pendilla and demanded money. Pendilla told him he had no money. Odiakosa checked Pendilla's pockets, hit him in the groin area and left. Pendilla thought the robber's accent sounded Jamaican or West Indian.
On June 7, 2006, Blanca Long got into her car, started the engine and locked the doors. Odiakosabanged on her car window with a handgun. He motioned her to get out but Long drove off. Long identified Odiakosa in a photographic lineup. She also identified his car and handgun as similar to those used in the attempted robbery.
On June 7, 2006, Javier Patron was moving a lawn when a black car pulled up to his truck. Odiakosa got out of the car, pointed a handgun at Patron and demanded his wallet. Patron gave him his wallet, Odiakosa returned to his car and drove off. Patron identified Odiakosa in a photographic lineup and identified a photograph of his car.
On June 8, 2006, Jimmy Lee was walking to a bus stop. A black car stopped near Lee and Odiakosa got out with a handgun. He demanded money. Lee gave him some money and two lottery tickets. Odiakosa drove away. Lee testified in court that Odiakosa was the same height as the robber. Lee also identified Odiakosa's handgun and a photograph of his car as being similar to those used in the robbery.
On June 12, 2006, Wilkie Benitez was walking home when a black car pulled up. Odiakosa got out with a handgun and demanded Benitez's wallet. Benitez gave him the wallet and Odiakosa drove away. Benitez identified Odiakosa as the robber in a photographic lineup and at trial. He also identified a photograph of Odiakosa's car and handgun as similar to those used in the robbery.
On June 12, 2006, Reynaldo Esposo was walking by his parked van. Odiakosa approached with a handgun and demanded his wallet. Esposo gave him his wallet.
Later that day, Sheriff's Deputy Jason Parolini made a traffic stop on a black Chevrolet driven by Odiakosa . Garfield Johnson was in the passenger seat. In the car, Parolini found a pellet gun on the front passenger floorboard, a wallet containing Esposo's driver's license and Benitez's wallet. Parolini also found two lottery tickets purchased on May 31, 2006. Lee testified he purchased the ticket in late May. The car was registered to Odiakosa's brother. After Odiakosa was arrested, no similar robberies occurred in the area.
DISCUSSION
I
Odiakosa contends the prosecutor used peremptory challenges as a pretext for racial and gender discrimination.
Jurors Nos. 6069 and 9444 are African-Americans. The prosecutor exercised peremptory challenges for both jurors. Defense counsel objected pursuant to People v. Wheeler (1978) 22 Cal.3d 258, on the ground that the prosecutor challenged two of the three African-American jurors.
The trial court found the defense established a prima facie case of group bias. The prosecutor explained his reasons for the challenges as follows:
"The first one I challenged was a young African-American male who had various yellow dyed streaks on the right side of his Afro; on both occasions, yesterday and today, was wearing jeans and a T-shirt; he was single with no prior jury experience. In my opinion, dressed inappropriate for court and lacked experience, did not have a stake in the community, without kids, without being married, and his hairstyle and clothing indicated disrespect for the court process.
"With regards to the second challenge, he has no prior experience, he's wearing jeans today, which I believe is appropriate for court. He indicated that he has been convicted of misdemeanor involving D.U.I. He vacillated in terms of his feeling regarding that comission.
"First he stated that he does not have any ill will towards police officers involved in that case. He later stated that he did in fact have ill will towards police officers in that case but that he no longer has ill will towards police officers in that case. He felt that he was treated fairly.
"He also vacillated with regards to how he was treated with regards to that case. He stated that he felt he was treated fairly in this case and then upon further questioning he said that he didn't believe that he was treated fairly in this case and that the reason that he wasn't treated fairly in this case was because the other person in the car was possibly more drunk than he was.
"I'm concerned about that reasoning. That level of intoxication of someone else's impacted upon fairness of the charge in his case. And he also seemed to think that - - - I'm already also concerned about the reason when he felt like he did fine on his F.S.T.'s even though he blew .10 in his breathalyzer test. He vacillated in various areas, and I wasn't confident that he no longer harbored any ill will towards the police or criminal justice system as a result of, in his words, unfair treatment that he received in a criminal case."
In finding the challenges were not the result of group bias the court stated:
". . . I think [the prosecutor's] concern about the second juror is well taken. I think he demonstrates an apparent animus toward law enforcement. I don't think that [the prosecutor's] feelings about him are unreasonable. Also I don't think they're based on what his ethnicity is. The more he spoke, the more he seemed to have some antagonism toward the law enforcement. While it's true he did no longer feel that way, I think [the prosecutor] wants to feel comfortable with jurors that are going to try the case, and this juror's responses about law enforcement and about highway patrol, I do not blame nor do I feel that [the prosecutor's] feelings are unreasonable or that they are race-based.
"Regarding the first juror, . . . I don't think that wearing jeans is showing any disrespect for the court. However, based on the totality of his appearance, including what I would characterize as a bizarre hairstyle, he did have an Afro, but it looked to me like it was on one side he had put a bunch of peroxide or dyed dots - - I've never seen a hairstyle like this or anything . . . even close to being like this. And again, I think [the prosecutor] needs to be comfortable with jurors on his case, and I don't think it's unreasonable for him to feel uncomfortable about an individual who comes in with a hairstyle that's just bizarre. I do not believe that that was a race-based challenge, and I would expect that if a Hispanic or Caucasian came in with a hairdo that was similar with dyed dots on one side, I would expect that [the prosecutor] would also kick that juror."
People v. Wheeler and Batson v. Kentucky (1986) 476 U.S. 79, held that the use of peremptory challenges to remove prospective jurors solely on the basis of presumed group bias based on membership in a racial group violates both federal and state Constitutions. (People v. Box (2000) 23 Cal.4th 1153, 1187-1188.) A party who believes an opponent is using peremptory challenges to excuse jurors on the basis of group bias alone, must make a timely objection and state a prima facie case for discrimination. (Ibid.) If the court finds a prima facie case of group bias, the prosecutor must state adequate race-neutral reasons for the challenges. (People v. Alvarez (1996) 14 Cal.4th 155, 197.) The reasons need not rise to the level of a challenge for cause. (People v. Williams (1997) 16 Cal.4th 635, 644.) Instead, an adequate reason may be no more than a hunch, so long as it shows the challenges were exercised for reasons other than group bias. (Ibid.)
We will uphold the trial court's ruling if it is supported by substantial evidence. (People v. Jones (1998) 17 Cal.4th 279, 293.) Because the trial court's ruling will largely turn on an evaluation of credibility, we rely on the good judgment of the trial court to distinguish bona fide reasons from sham excuses. (People v. Williams, supra, 16 Cal.4th at p. 666.)
Here the trial court accepted as bona fide the prosecutor's explanation that one juror had a highly unusual haircut and the other juror vacillated about whether he was treated fairly by police officers who arrested him for driving under the influence. The record supports those reasons.
Odiakosa points out that a non-African-American juror suffered a prior conviction for burglary of a pawn shop and served six months. Yet, the prosecutor did not challenge him. But that conviction occurred 30 years prior when the juror was 16 or 17 years old. The juror said he made a stupid mistake, he pled guilty because he was guilty, and he had no ill will toward the police. That is a far cry from the juror who vacillated on whether he was treated fairly.
Odiakosa argues the juror with the unusual haircut was in the fashion industry where streaked hair is a common occurrence, and should not be grounds to excuse him. But the prosecutor's reasons for justifying a peremptory challenge need not rise to the level of a challenge for cause. A haircut the trial court described as "bizarre" justifies the prosecution's peremptory challenge.
II
Odiakosa contends the admission of evidence concerning his silence, statements and demeanor after he invoked his rights under Miranda v. Arizona (1966) 384 U.S. 436, violated his constitutional right to remain silent.
Police Detective James Rudolph testified that he asked Odiakosa the normal booking questions such as his date and place of birth and his residence address. Odiakosa's answers were evasive; he would either give a false answer or delay his answer.
Odiakosa's counsel objected that the line of questioning violated Odiakosa's right to remain silent. The prosecutor stated that Odiakosa had not been "Mirandized" for the booking process, and that the prosecutor is allowed to ask how Odiakosa responded to booking questions. The trial court overruled the objection.
Rudolph continued his testimony. He said that when he asked Odiakosa his date of birth, Odiakosa responded with another question. He had to ask Odiakosa his place of birth twice before Odiakosa responded that he was born in Nigeria. Rudolph asked Odiakosa to whom the car belonged. Odiakosa answered the car belonged to his brother.
A suspect may not be subjected to an in-custody interrogation unless he has been previously advised of and has waived his rights to silence, to the presence of an attorney, and to appointed counsel if he is indigent. (People v. Sims (1993) 5 Cal.4th 405, 440.) Miranda warnings are not required, however, for routine background or booking questions. (People v. Hall (1988) 199 Cal.App.3d 914, 919.) Thus evidence of Odiakosa's response to booking questions is admissible. (Id. at pp. 919-921.)
In any event, even if the evidence were inadmissible, the error would be harmless by any standard. All of the robberies had the same modus operandi. Almost all of the victims identified Odiakosa, the gun and his car. The property of some of the victims was found in the car he was driving. After Odiakosa's arrest, no similar robberies occurred in the area.
III
Odiakosa contends the trial court erred in giving the jury a verdict form with an aggravating factor finding attached.
The jury verdict form states the jury finds Odiakosa guilty of second degree robbery of Veronica Cruz. The form also states, "We further find that in the commission of the offense that the defendant involved [sic] a high degree of cruelty, viciousness and callousness to be: _____ [insert 'True' or "Not True']" The jury inserted "True." The court imposed one-third the middle term on the count, the same sentence the court imposed on each of the other subordinate robbery counts.
Odiakosa did not object to the jury form until sentencing. Under the circumstances, the objection is deemed waived. (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6) Moreover, Odiakosa cannot show prejudice. The court imposed the same term that it imposed on all the subordinate robbery convictions as required by law.
Finally, the Attorney General concedes it was error for the jury to convict Odiakosa of stealing and receiving the same property. (See People v. Stephens (1990) 218 Cal.App.3d 575, 586-587.) The appropriate remedy is to reverse the conviction for receiving stolen property. (Ibid.)
Odiakosa's conviction for receiving stolen property is reversed. In all other respects we affirm.
We concur: YEGAN, J., PERREN, J.