Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF106751A, SF106751C
ROBIE, J.
A jury found defendants Ricky Lynn Williams and Richard Lee Atkins, Jr., guilty of second degree robbery with personal use of a firearm. Williams was found guilty of the additional charge of assault with an assault weapon and Atkins of felon in possession of a firearm and an enhancement for wearing body armor during the robbery. The court found Atkins had a prior serious felony conviction.
The court sentenced Williams to 12 years in prison and Atkins to 23 years.
On appeal, defendants raise contentions relating to jury selection, evidence, instructions, prosecutorial misconduct, and cumulative prejudice. They join in each other’s contentions. Disagreeing with these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case
About 9:45 p.m. on December 2, 2007, Paul Harrell and his friend Angela Reed were “cuddling” in his pickup that was parked near a fishing spot off Highway 4 in San Joaquin County. A small blue car stopped 10 to 12 feet away. Defendant Williams (who was wearing an open-faced ski mask) got out of the back passenger side of the car and, with an assault rifle in hand, went to the driver’s side of the truck, pointed the rifle at Harrell’s face, and said, “‘Give me your fucking wallet.’” Harrell complied because he “thought it would be better than getting shot and him taking it.” Meanwhile, defendant Atkins (who was wearing a bandana and a baseball cap) got out of the front passenger side of the car and, with a handgun, went to Reed’s side of the truck. Reed’s door would not open because of a problem with the lock.
Williams asked Atkins, “‘Do you want to take his truck?’” Atkins replied, “‘No. Fuck it. Let’s get out of here.’” The two went back to the blue car, Atkins got in the front passenger seat, Williams got in the back passenger seat, and the car took off while they were still closing their doors.
Five seconds after the blue car took off, Harrell saw a patrol car, followed it in his truck on Highway 4, and pointed out to the sheriff’s deputy the blue car he said had “individuals in it with guns” who had “just robbed [him] of [his] wallet.”
Deputies, including Brandon Swaim, caught up to the blue car a quarter-mile later and ordered the occupants out. Kevin Thrower was removed from the driver’s seat, Atkins from the front passenger seat, and Williams from the rear passenger seat. Loaded firearms were found in the car. Harrell’s wallet was found on the front passenger floorboard, along with his Social Security card and credit cards.
Meanwhile, Harrell and Reed drove to a nearby gas station and waited 15 to 30 minutes for law enforcement to arrive. Deputy Brandon Pekarek met them there and spoke with them. Reed gave the deputy her contact information, and Harrell told him what had happened. According to Deputy Swaim, there was no reason given to him by anybody that night to search Harrell, his truck, or Reed.
B
The Defense
Atkins testified at trial that on December 2, 2007, he was at his mother’s house in Stockton playing video games and listening to music with his “godbrother, Ricky Williams.” Kevin Thrower, who was his mother’s “common law” spouse, was also at the house. Thrower asked Atkins if he wanted to “take a ride with him” to buy some “heat,” or weapons, from a “guy” he knew. Atkins agreed, and Williams came along too, knowing what they were up to.
When they encountered Harrell’s truck, Thrower said, “‘That’s the old boy right there.’” Thrower got out of his car and walked toward Harrell’s truck. Atkins and Williams remained in the car. Thrower then came back to the car with Harrell. Thrower paid Harrell $600 in exchange for some guns. The two then started arguing about drugs: Harrell wanted “dope,” and Thrower said he was not able to get any. As they continued arguing, Thrower pushed Harrell out of the car.
Atkins did not rob Harrell, did not take his wallet, and did not know about the wallet’s presence in the car until the preliminary hearing.
Some time before trial, Atkins told his mother and cousins about what he was charged with and “what they believe that happened, and what did not happen.” He did not tell them to contact the prosecutor to give his side of the story.
C
Rebuttal
Harrell denied meeting Thrower, Atkins, or Williams to sell them guns. Reed could verify this, but Harrell had no way of contacting her.
DISCUSSION
I
The Court Did Not Err In Denying Williams’ Wheeler/Batson Motion
Williams contends the court erred in denying his Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson)), which was directed at prospective juror P.W., an African-American woman.
Where the trial court denies a Wheeler/Batson motion because it finds no prima facie case of group bias, we review the record for substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 993.) This deferential standard is appropriate “[b]ecause Wheeler motions call upon trial judges’” “‘“powers of observation, their understanding of trial techniques, and their broad judicial experience.”’” (People v. Howard (1992) 1 Cal.4th 1132, 1155.)
Here, the court stated “I’m not even going to ask [the prosecutor] why he excused [P.W.], but I thought she was totally -- I don’t know. She just seemed to have no expression whatsoever. [¶] She was young. She wasn’t married. She had no responsibilities. She was in school, which is to her credit. And I don’t think excusing one member of the cognizable group is sufficient of itself.”
The prosecutor added, “I agree with Your Honor, [P.W.] was stoic, expressionless, couldn’t read her. She had other responsibilities. She went to school, had no ties, no employment, and she was young. And those were the reasons. [¶] Her color, I didn’t even look at.”
There was substantial evidence to support the court’s finding of no prima facie case of group bias. During voir dire, the prosecutor and P.W. had the following exchange:
PROSECUTOR: “I’ve noticed a lot of people with me will say, are you upset, because you don’t smile much. I’ve noticed since you’ve been here, it doesn’t look like you want to be here. I can tell on you a little more than everyone else. [¶]... [¶]... Is that a fair description, or...”
P.W.: “No.”
PROSECUTOR: “Is there something else?”
P.W.: “It was something else.”
This exchange confirms the prosecutor’s hesitation with P.W. serving as a juror because of her lack of expression. Her demeanor was a race-neutral reason for excusing her, and the trial court’s contemporaneous observation of the same is something to which we defer. (See People v. Lenix (2008) 44 Cal.4th 602, 614 [race-neutral reasons for peremptory challenges often invoke a juror’s demeanor, making the trial court’s firsthand observations of even greater importance].)
Moreover, the other reasons cited by the prosecutor were race-neutral, legitimate, and confirmed by the record. P.W. was an unmarried, childless student at Delta College. When the prosecutor asked if she worked, P.W. responded, “No, I’m just -- just a baby-sitter for my cousin, and I take care of my mom.”
Despite this record, Williams persists that P.W.’s status as an African-American woman was “enough to establish a pattern of systematic exclusion of minority jurors as even a single improper exercise of a peremptory challenge against a member of a cognizable group is sufficient for Wheeler/Batson purposes.” No so. “‘[T]he small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. “[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’” (People v. Bell (2007) 40 Cal.4th 582, 597-598.) There is nothing on this record to suggest the exclusion of P.W. was race-based, and the court’s finding it was not was supported by substantial evidence.
II
Williams Has Not Provided An Adequate Record To Assess Whether The Court Erred In Restricting His Cross-Examination Of Harrell
Williams contends he was denied his federal due process right to present a defense when the court restricted his cross-examination of Harrell. He has not met his burden of showing error by an adequate record.
The record shows the following exchange between the court and the parties:
“[COUNSEL FOR WILLIAMS]: Your Honor, before I do my cross, can we approach?
“THE COURT: Yes.
“(Conference at bench.)
“[COUNSEL FOR ATKINS]: I don’t have anything further, Judge.
“[COUNSEL FOR WILLIAMS]: Just a minute, Your Honor.
“CROSS-EXAMINATION
“[COUNSEL FOR WILLIAMS]: I don’t remember, was it your testimony yesterday that you have some experience with firearms?
“[PROSECUTOR]: Your Honor, I’m going to object. It’s beyond rebuttal, but also it’s improper given the conversation we just had at the bench.
“THE COURT: Sustained.
“[COUNSEL FOR WILLIAMS]: Nothing further.
“THE COURT: Thank you, Mr. Harrell. You may step down.”
On this record, Williams has not met his burden of showing error by an adequate record. (In re Kathy P. (1979) 25 Cal.3d 91, 103.) He has not provided us with a settled statement of the contents of the unreported bench conference, so we cannot assess whether, as he speculates, “the court did not balance the probative value of defense counsel’s line of questioning against its prejudicial effect” or whether Williams’ counsel even objected on this ground or on any constitutional grounds. We also do not know the basis of the court’s ruling, given the unreported bench conference, the contents of which the prosecutor invoked when making his objection. As the appellant, Williams carries this burden, and he has failed to shoulder it.
III
The Court Did Not Err In Refusing To Instruct On Grand Theft
As A Lesser Included Offense Of Robbery
Williams contends the court erred in failing to instruct on grand theft, a lesser included offense of robbery. He is wrong.
A trial court must instruct on a lesser included offense when the lesser offense is supported by “substantial evidence,” i.e., evidence from which a reasonable jury could conclude beyond a reasonable doubt that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Mendoza (2000) 24 Cal.4th 130, 174.)
Here, there was no substantial evidence to warrant a grand theft instruction because Williams cannot show the absence of force or fear, making the robbery only grand theft. (See People v. DePriest (2007) 42 Cal.4th 1, 50 [distinction between robbery and grand theft is absence of force or fear].)
Harrell testified that Williams, assault rifle in hand, went to the driver’s side of the truck, pointed the rifle at Harrell’s face, and said, “‘Give me your fucking wallet.’” Harrell complied, because he “thought it would be better than getting shot and him taking it.”
Williams’ recitation of the facts omits that he demanded Harrell’s wallet.
Even under the defense version of events -- a “gun deal that went bad” -- there was no evidence to support grand theft. Williams adopts his trial counsel’s argument there was such evidence because Harrell’s wallet was found in the car and the jury could have found defendants intended to take the wallet after Harrell had left it in the car. The problem with this argument is there is no evidence Williams or Atkins were even aware of the wallet. As to Williams, it was undisputed he rode in the backseat and the wallet was found on the front passenger floorboard. As to Atkins, he denied knowing about the wallet’s presence until he saw pictures of that fact at the preliminary hearing. On this record, there was insufficient evidence to support a lesser included instruction on grand theft.
IV
The Prosecutor Did Not Commit Misconduct In Closing Argument
Williams contends the prosecutor committed misconduct during closing argument, which he divides into three categories. There was no misconduct.
A
Personal Opinion Of Guilt, Vouching,
And Arguing Facts Not In Evidence
In his first category of alleged prosecutorial misconduct, Williams argues three instances where the prosecutor offered his personal opinion of guilt, vouched for the strength of the prosecution’s case, or argued facts not in evidence.
The first was as follows: “Yesterday, Mr. Atkins testified. Personally, I find all of his testimony a complete lie, falsehood. So I have to address it, though, because, before I go into what actually occurred out there that night, I have to address that, otherwise nothing will make sense. [¶] Remember who Mr. Atkins is.” The court overruled defense counsel’s objection this was “personal vouching.”
In Atkins’ opening brief, he also brings up this argument as error.
“[A] prosecutor [may not] express a personal opinion or belief in a defendant’s guilt, where there is substantial danger that jurors will interpret this as being based on information at the prosecutor’s command, other than evidence adduced at trial. The danger is acute when the prosecutor offers his opinion and does not explicitly state that it is based solely on inferences from the evidence at trial.” (People v. Bain (1971) 5 Cal.3d 839, 848.)
Here, while the prosecutor did not explicitly so state, the argument he made after he expressed his personal opinion of guilt was based solely on the trial evidence. The prosecutor argued Atkins’ story was based on a version Atkins had memorized over the last seven months he had been in jail. For his story to be believable, jurors would have to accept that Harrell “brings a woman to an arms deal,” “hands over two loaded weapons to three individuals” dressed in clothing meant to shield their identities, lost his wallet in their car, yet all the cards were “strewn out like it’s been rifled through,” and chased down a sheriff’s deputy to report he had been robbed when he was the one who was selling guns. While the prosecutor was wrong to express his personal opinion of Williams’ guilt, it was not misconduct because he did not infer the opinion was based on evidence outside the record.
The second alleged instance occurred when the prosecutor was arguing “things that are part of the story that are ridiculous”:
“Once this supposed disagreement, or this breach of contract, let’s say, occurs, Mr. Harrell being unhappy he doesn’t get more money, gets in his car, within seconds chases down a sheriff’s deputy and says, hey, those three guys up there in that blue car just jacked me. They just robbed me. They all have guns. [¶] If you were out there selling guns to people, would you chase down a sheriff’s deputy to tell [him]? How about this: Within 15 minutes, Angela Reed gives a statement to the sheriff’s department. We know that.” Defense counsel objected to the argument as “refer[ring] to a statement that’s not in evidence.” The court overruled the objection stating, “She made a statement. The deputy testified he took a statement from both people.”
The third instance followed immediately thereafter: “What did the sheriff’s deputy say? We asked him, did you have any reason from your conversations that night to go back and investigate and search Mr. Harrell or his truck? No. No reason. You can infer from the lack of that what Ms. Reed had to say, what she didn’t have to say.” Defense counsel objected this argument “refers to statement[s] outside of evidence, and also improper vouching.” The court overruled the objection, stating, “This is argument.”
These two arguments were a fair comment on the evidence. Harrell testified he and Reed went to the gas station after they were assaulted and waited 15 to 30 minutes for law enforcement to arrive so a deputy could make a report. Pekarek was the deputy who met them and spoke with both of them. Deputy Swaim testified there was no reason given to him by anybody that night to search Harrell, his car, or Reed. The prosecutor’s arguments were reasonable extrapolations of this evidence.
B
Appealing To The Passions And Prejudices Of The Jury
Williams argues one instance where he claims the prosecutor committed misconduct by appealing to the passions and prejudices of the jury.
The challenged remarks came in response to the following argument by Atkins’ counsel: “[The prosecutor] asked if my client ever told anyone else about this story he’s telling. Did he ever call [the prosecutor] to tell him what happened? I would have loved to have heard the phone conversation if my client called [the prosecutor] and said, let me tell you what happened out here. We were out there to buy guns and the deal went bad. [The prosecutor] would have laughed and hung the phone up. Because they can’t believe that something else like this could have gone down out there.”
In response, the prosecutor made the following argument during rebuttal, which defendant Williams now challenges: “[Atkins’ counsel] also said something, what would happen if someone called up [me] and said, hey, that’s not what happened, this is what happened? [I] would laugh. [¶] Well, that’s really the only thing personally I took offense to, but that’s not here or there. Remember when I said -- on the wall, I looked up at the wall when we were all upstairs and I said, ‘Justitia omnibus.’ Justice for all. That’s my hope. Justice for all. Justice for the defendants, justice for the People.”
The prosecutor was referring to comments he made during voir dire.
The defense objected as follows: “incorrectly states what his duties are, and also calls -- inflames, calls for inflammation of the jury’s passions.” The court overruled the objection as “argument.”
The prosecutor continued: “Everyone in this count[r]y since our founding fathers has a right to a fair and impartial jury trial. And every one of us citizens of the United States is protected under those rights, the rights not to be falsely accused, rights not to be victimized, no matter who we are.”
Williams argues the prosecutor appealed to the jury’s passions and prejudices by “t[elling] the jury that they would be doing ‘justice for the People’ by returning a guilty verdict.” The prosecutor did no such thing. The prosecutor told the jury he hoped for “[j]ustice for all,” which included “the defendants” and “the People.” He emphasized everybody had the right to a fair trial, not to be falsely accused, and not to be victimized. Nothing in this argument can be characterized as arguing justice would be done by returning a guilty verdict.
C
Comment On Williams’ Failure To Testify
Williams argues the prosecutor improperly commented on his failure to testify during the following argument: “One thing no one has explained at all, except for Mr. Harrell, is how his wallet got in the car. Anyone? No one. No one can explain how his wallet got in the car, but Mr. Harrell.”
Counsel for defendant Williams objected, “that misstates the evidence.” The court overruled the objection, stating “The jurors heard the evidence.”
By failing to raise the same claim in the trial court, Williams is precluded from arguing it now. (People v. Hill (1998) 17 Cal.4th 800, 820 [“a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety”].)
Indeed, when this forfeiture was brought to his attention by the People in their respondent’s brief, Williams still fails to address it.
V
The Prosecutor Did Not Improperly Question
Atkins On His Postarrest Silence
Atkins contends the prosecutor improperly questioned him on his postarrest silence. Not so.
The questioning on which Atkins bases his argument is as follows:
“[PROSECUTOR]: Before today, have you spoken to anyone regarding what was going on on Highway 4 on December 2nd, 2007?
“[ATKINS]: Yes.
“[PROSECUTOR]: Who’s that?
“[ATKINS]: My mother, and cousin -- two cousins.
“[PROSECUTOR]: When did you tell them?
“[ATKINS]: Basically, what I was charged with, and what they believe that happened, and what did not happen.
“[PROSECUTOR]: Did you tell them to contact me?
“[ATKINS]: My mother and them?
“[PROSECUTOR]: Yeah.
“[ATKINS]: No, sir.”
The court overruled a defense objection the prosecutor was improperly questioning Atkins on his postarrest silence.
Later, during closing, the prosecutor argued Atkins told the jury a memorized story he had made up in jail.
It is a violation of due process for the prosecution to use a defendant’s silence following Miranda warnings to impeach the defendant’s subsequent explanation at trial. (Doyle v. Ohio (1976) 426 U.S. 610, 619 [49 L.Ed.2d 91, 98] (Doyle). The Doyle rule is premised on the recognition that it is fundamentally unfair to “‘permit the prosecution during the trial to call attention to [the defendant’s] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony....’” (Doyle, at p. 619 [49 L.Ed.2d at p. 98].)
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
Here, the prosecutor’s questions and argument did not violate Doyle. Atkins has failed to establish that the prosecutor was questioning him about his post Miranda silence. Indeed, the prosecutor’s questions were aimed at finding out when Atkins told his story to anybody. Atkins did not answer the prosecutor’s question as to when he told his mother and cousins (other than it was before trial), but rather he volunteered what he told them, i.e., what he was charged with and what “they” believed happened. Moreover, the questions and answers really went to establishing the irrationality of Atkins telling his mother and cousin the charges against him and their failure to contact the prosecutor with information that might have exculpated Atkins. “Although a citizen ordinarily has no legal obligation to offer exculpatory information to law enforcement officials, there are many situations where the natural response of a person would be to come forward in order to avoid a mistaken prosecution of a relative or friend. In that situation a witness’s silence may... ha[ve] probative value.” (People v. Ratliff (1987) 189 Cal.App.3d 696, 701.) While the questions in Ratliff were directed at defense witnesses and not the defendant himself, the same rationale applies here: the questioning was meant to get at why the mother and cousins failed to come forward with an exculpatory story for Atkins, where there was evidence the mother and cousin were aware of such information. On this record, there was no Doyle error.
VI
The Prosecutor’s Argument That Both He And Atkins’ Counsel Did Not Believe Atkins’ Story Did Not Prejudice Atkins
Atkins contends comments made by the prosecutor in closing require reversal of the judgment. Specifically, he points to the following two statements by the prosecutor: (1) Atkins’ counsel did not believe Atkins’ story; and (2) the prosecutor did not believe Atkins’ story. We disagree.
As to the first statement, there was no prejudice because the court sustained defense counsel’s objection and told the jury the argument was improper. (See People v. Chatman (2006) 38 Cal.4th 344, 385 [Where the prosecutor argues that defense counsel does not believe in his client’s case, and the court sustains the defendant’s objection and admonishes the jury, any prejudice is cured].) Here, the prosecutor argued in closing as follows: “Who asked Mr. Harrell if he was out there selling guns. I did, on rebuttal. His own attorneys don’t even believe the story, otherwise they would have asked him on direct.” The court sustained defense counsel’s objection and “admonish[ed] the jury that is improper comment during final argument.”
As to the prosecutor’s personal belief that Atkins was lying, as we have already explained, while the comment was improper, no reasonable inference could be made the opinion was based on evidence outside the record.
On this record we reject Atkins’s argument of prejudicial error.
VII
There Was No Cumulative Prejudicial Error
Williams contends the cumulative effect of the court’s errors and the prosecutor’s misconduct requires reversal. Because we have found only one comment of the prosecutor’s improper (to which the court did not sustain an objection), there are no errors to accumulate.
DISPOSITION
The judgments are affirmed.
We concur: BLEASE, Acting P. J., NICHOLSON, J.