Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 03NF1125, Richard W. Stanford, Jr., Judge. Affirmed.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Bobby Dean Ball, Jr., was convicted of first degree burglary. He appealed from his conviction and sentence, and we affirmed.
On February 20, 2007, the United States Supreme Court granted a petition for writ of certiorari in this case, vacated the judgment of this court, and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We directed the parties to submit supplemental briefs addressing the Cunningham issue only. For all the reasons set forth post, we again affirm the judgment. We reissue our previous opinion as follows with a new section dealing with the Cunningham issue.
First, defendant argues multiple instances of alleged judicial misconduct require reversal of his conviction. The trial court did engage in ex parte communications with counsel for a codefendant before trial, but defendant failed to raise the issue of disqualification in a timely manner. Although defendant was aware of the court’s ex parte communications and the alleged prejudicial impact of those communications before trial began, defendant did not raise the issue of disqualification until he filed a motion for a new trial after his conviction. Under the applicable statute, the motion to disqualify was untimely.
Defendant’s other claims of alleged judicial misconduct also fail. The trial court did not interpose objections or question witnesses in a manner that prejudiced defendant, and the court did not improperly chastise defendant’s counsel in the presence of the jury. The court’s failure to read back requested testimony to the jury before it reached its verdict was not misconduct. The court instructed the jury to “retire briefly” and deliberate regarding defendant’s prior convictions. Even if this instruction was in error, the court corrected its statement; in any event, it is not reasonably probable defendant would have received a more favorable verdict on the prior convictions if the court had not so instructed the jury.
Second, defendant challenges the sufficiency of the evidence supporting his conviction. We conclude substantial evidence supported defendant’s conviction, notwithstanding the existence of other contradictory evidence.
Third, defendant argues the prosecutor improperly used peremptory challenges to exclude two African-Americans from the jury. We conclude the trial court’s finding that defendant had not made out a prima facie case of discrimination was not supported by substantial evidence. However, the record on appeal supports race-neutral reasons for the exclusion of those two potential jurors, so we must conclude there was no violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) or People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Fourth, defendant argues the trial court failed to sua sponte instruct the jury with CALJIC No. 2.80 regarding expert testimony. We conclude that the majority of the testimony defendant claims was expert testimony is not. Even if the jury gave undue weight to the one piece of evidence that might be expert testimony, it could not have resulted in prejudicial error, given the weight of the evidence against defendant.
Finally, defendant argues his sentence violates the Sixth Amendment to the United States Constitution and Cunningham because the trial court sentenced him to the upper term based on facts he did not admit and the jury did not find beyond a reasonable doubt. Only the fact of defendant’s prior criminal conviction was used as an aggravating factor to impose the upper term sentence, a finding that is an exception to the general rule in Cunningham that all aggravating factors be found by a jury beyond a reasonable doubt. Although the trial court mentioned the existence of other aggravating factors, it did so only by way of explaining why it would not use them to enhance defendant’s sentence.
Statement of Facts
Margaret Slaven lived on Puente Street on the border between Fullerton and Brea. The Zukers lived across the street from her. On April 2, 2003, around noon, Slaven saw a blue compact car stop in front of the Zukers’ house. Two African-American men got out of the car; the driver, an African-American woman, made a U-turn and parked across the street from the Zukers’ house. The two men went to the back of the house. At that point, Slaven called 911 and reported her belief that her neighbors’ house was being broken into. The blue car made another U-turn, ultimately parking in front of the Zukers’ house. The two men left the Zukers’ house through the front door, got back into the blue car, and drove away.
The blue car soon returned. Thomas Bryant, a former codefendant in the case, was sitting in the backseat. Slaven, who had stepped outside her house, saw Bryant wave to Slaven’s mother, who was also outside the house. The car again stopped in front of the Zukers’ house. Both men went back into the house through the front door. The car’s driver made another U-turn and again parked across the street from the Zukers’ house. When the police arrived in response to Slaven’s 911 call, the driver of the blue car honked the horn and drove away.
Officer Irish of the Fullerton Police Department stopped a blue Nissan Sentra nearby and detained the driver, Kendra Locke. Inside the car, he found Bryant’s identification and a photograph of defendant. Officer Irish also found a crowbar in the trunk of the car. In response to questioning by defendant’s counsel, Officer Irish testified, “crowbars are used by crooks to break into houses.” There was no evidence the crowbar found in the trunk of the blue car was used to break into the Zukers’ house.
About 12:30 p.m., two house painters waved down Sergeant Matson to state that two African-American men were yelling and running down Sunny Hills Drive. The painters were not able to identify the men. Sergeant Matson found defendant and Bryant walking down Sunny Hills Drive, about one-quarter mile from the Zukers’ house. Both were wearing white T-shirts; defendant carried a blue shirt and Bryant carried a yellow shirt. Mrs. Zuker’s necklace was protruding from inside the blue shirt defendant was carrying and Bryant had Mrs. Zuker’s watch in his back pocket. The necklace was never booked into evidence, and was not photographed while wrapped in the blue shirt.
During a field show-up, Slaven identified defendant and Bryant as the men she saw entering the Zukers’ house. Slaven testified at trial that when she saw them at the field show-up, defendant was wearing a yellow shirt and Bryant was carrying a blue shirt. Slaven also identified Locke as the driver of the blue car. Slaven testified defendant was wearing a yellow shirt and Bryant was wearing a navy blue shirt at the time she saw them at the Zukers’ house, but that it was possible she was mixing them up.
The investigating officers gave conflicting testimony about which suspected burglar was wearing or carrying which shirt, and which piece of jewelry was found concealed in which shirt. Defendant’s clothing was not booked into evidence.
Defendant was charged with one count of first degree burglary. (Pen. Code, §§ 459, 460, subd. (a).) The information alleged one prior strike conviction (id., §§ 1192.7, subd. (c), 667, subd. (a)(1)), two prior prison terms (id., § 667.5, subd. (b)), and a prior serious felony (id., §§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)). A jury convicted defendant of first degree burglary, and found all the allegations to be true.
The trial court denied defendant’s motion for a new trial and motion for removal of judicial officer and imposed sentence. Defendant timely appealed.
Discussion
I.
Although Judge Stanford engaged in ex parte communications about the case, defendant failed to timely seek disqualification. Defendant’s other claims of judicial misconduct fail on their merits.
A. Disqualification Due to Ex Parte Communications
Defendant alleges several instances of judicial misconduct, which he claims necessitate reversal of his conviction. The most significant of these is defendant’s claim that the judge assigned to his case “had extensive ex-parte communications with co-defendant Bryant’s attorney one week before trial, and that the judge had advocated on Bryant’s behalf.”
Before defendant’s trial began, Judge Stanford had an ex parte communication with counsel for codefendant Bryant. Shortly thereafter, Bryant pleaded guilty and was placed on probation. The in-chambers discussion at which Judge Stanford advised counsel of the ex parte communication was not recorded. In a declaration submitted in support of defendant’s motion for a new trial, however, defendant’s trial counsel provided the following summary: “On April 19, 2004, the case was set for jury trial. A ‘chambers discussion’ occurred between the assigned Deputy District Attorney, . . . Judge Stanford and myself. . . . During the ‘chambers discussion’, Judge Stanford stated he had ‘ex-part[i]ed the hell out of the case’ over the weekend at the Cal. State Fullerton baseball game with the attorney for Thomas Bryant. Judge Stanford then began querying [the prosecutor] regarding why Mr. Bryant’s presence was necessary to go forward against Mr. Ball. Judge Stanford seemed to have a working knowledge of the facts and was able to explain to [the prosecutor] why Mr. Bryant’s presence was not necessary to the trial of Mr. Ball. Judge Stanford alluded to facts of the case which were never discussed in my presence.”
In his answer to the disqualification challenge in the motion for new trial, Judge Stanford did not dispute defendant’s counsel’s summary of the chambers conference, but only its meaning: “The mentioned ‘chambers discussion’ was off-the-record, open and friendly, regarding scheduling of the beginning of the jury trial, and divulging to the prosecutor that counsel for the co-defendant and I are friends and went to a ball game together over the past weekend. I joked with the prosecutor in [defendant’s counsel]’s presence regarding having ‘ex-partied’ the case, but only because I knew the prosecutor, assigned regularly to my courtroom, would never consider it to be a serious comment, but I did want him to know of my friendship with co-defendant’s counsel. The prosecutor took it as a joking comment and did not express any reservation about me continuing to handle the case. I did in fact have a working knowledge of the case then and beforehand because it had been in my caseload for many months previous. I did inquire of the prosecutor what effect on his case would result if the co-defendant entered a guilty plea and [defendant] went to trial [alone]. This is because I knew for weeks the co-defendant desired to plead guilty, but I did not want to give an indicated sentence to the co-defendant if it would impair the prosecutor’s ability to try the case to a jury.”
A judge may be disqualified from conducting a proceeding if, “[f]or any reason . . . a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ. Proc., § 170.1, subd. (a)(6)(C).) A trial court’s ruling on a recusal motion is reviewed for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 237.)
Based on the record before us in this case, we conclude it would have been an abuse of discretion for Judge Stanford to have failed to recuse himself. Canon 3B(7) of the California Code of Judicial Ethics specifically prohibits a judge from initiating, permitting, or considering ex parte communications regarding pending matters, except in circumstances not applicable here. Violation of canon 3B(7) constitutes misconduct, even when the judge is acting in good faith. (People v. Williams (1988) 45 Cal.3d 1268, 1327-1328; In re Fisher (1982) 31 Cal.3d 919, 920.) “‘“The standard for disqualification provided for in subdivision (a)(6)(C) of [Code of Civil Procedure] section 170.1 is fundamentally an objective one.” If a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judge’s impartiality, disqualification is mandated. The existence of actual bias is not required.’ [Citations.] ‘The challenge must be to the effect that the judge would not be able to be impartial toward a particular party.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 446.)
A reasonable member of the public privy to the pretrial chambers discussion would fairly entertain doubts about Judge Stanford’s impartiality toward defendant. A timely challenge should have been granted. However, defendant’s challenge to Judge Stanford was made too late under the applicable statute, which requires a written statement objecting to the hearing or trial “be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” (Code Civ. Proc., § 170.3, subd. (c)(1).) A defendant does not have a right to seek disqualification of the trial judge when he or she fails to object to the judge presiding over the trial, despite knowing all the facts supporting disqualification before the trial begins. (People v. Scott (1997) 15 Cal.4th 1188, 1207.) “This promptness requirement is not to be taken lightly, especially when the party delays in challenging the judge until after judgment. Otherwise, a defendant can sit through a first trial hoping for an acquittal, secure in the knowledge that he can invalidate the trial later if it does not net a favorable result. [Citation.]” (In re Steven O. (1991) 229 Cal.App.3d 46, 55.)
In this case, defendant was aware several days before trial began of all the facts cited in his motion for a new trial. Defendant should have challenged Judge Stanford at that time, but failed to do so. The issue of Bryant’s guilty plea was discussed on the record at a pretrial conference, but defendant’s counsel did not at that time raise any objection based on Judge Stanford’s ex parte communication with codefendant Bryant’s counsel. Allowing defendant to wait until after the jury returned a guilty verdict against him before presenting a challenge based on the court’s perceived partiality would permit defendant to have the proverbial second bite at the apple. (Gai v. City of Selma (1998) 68 Cal.App.4th 213, 230 [Code of Civil Procedure section 170.3, subdivision (d) promotes fundamental fairness and eliminates the waste of time and money that would result if a party could seek disqualification of a judge after losing on the merits and get a second trial].)
Given our holding, we need not address defendant’s argument that Judge Stanford was automatically disqualified because he failed to respond in writing to the written challenge contained in defendant’s motion for a new trial within 10 calendar days. (Code Civ. Proc., § 170.3, subd. (c); PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 972.) Since the disqualification challenge was itself untimely, it is irrelevant whether Judge Stanford responded to it in a timely manner. For the same reason, we need not address whether defendant was required to seek relief by means of a petition for writ of mandate, rather than through a direct appeal. (Code Civ. Proc., § 170.3, subd. (d).)
The statutory rules governing requests for disqualification of a judge are clear and must be followed in order to have an appellate court consider the issue, no matter how serious the sentence imposed. (People v. Williams (1997) 16 Cal.4th 635, 652 [where defendant failed to seek review via writ of mandate, his “statutory judicial disqualification claim is not properly before us on this automatic appeal following a judgment of death”].)
B. Alleged Judicial Misconduct Due to Acting as an Advocate for the Prosecution
Defendant also argues Judge Stanford improperly acted as an advocate for the prosecution by interposing his own objections, disparaging defendant’s counsel, and failing to listen to defendant’s counsel’s opening statement.
Defendant cites nine places in the record where Judge Stanford allegedly committed misconduct “by interposing his own objections and by questioning the witnesses, acting as an advocate for the prosecution during pretrial hearings and during the trial.” Six of those citations refer to points during the trial when the jury was not present. We will examine each of the remaining citations in turn.
At one point, the court claimed an objection that had actually been made by the prosecutor.
“Q That is something you certainly could have
“[Prosecutor]: Objection. Asked and answered and argumentative.
“[Defendant’s counsel]: I have not asked a question yet.
“The Court: Finish your question.
“By [defendant’s counsel]: Q You certainly had the opportunity to tell Officer Heying to make sure that the shirt is booked into evidence; correct?
“A I did
“The Court: It’s been asked and answered, and the answer is ordered stricken.
“[Defendant’s counsel]: Was that the district attorney’s objection, your honor?
“The Court: That was mine.”
Although Judge Stanford said the objection was his, the record shows the objection was based on the district attorney’s objection a few moments earlier. This is not misconduct.
Judge Stanford also asked clarifying questions during the examination of Officer Irish. It is not error for a trial judge to question witnesses to clarify the evidence or cover omissions. (People v. Hawkins (1995) 10 Cal.4th 920, 947-948.) Here, Judge Stanford’s questions were very limited, were for the purpose of clarifying the testimony, and did not necessarily favor either side. This distinguishes the present case from one cited by defendant, People v. Perkins (2003) 109 Cal.App.4th 1562, 1570-1573, in which the court cross-examined the testifying defendant to attack the defendant’s credibility and integrity, to elicit an admission of the defendant’s willful and knowing violation of a restraining order, and to enable the jury to draw adverse inferences against the defendant.
Judge Stanford did interpose an “asked and answered” objection when defendant’s counsel continued to question Slaven about her identification of defendant and Bryant. Judge Stanford’s action, which perhaps was unnecessary, did not constitute misconduct, and, at any rate, was not so pervasive or prejudicial that it deprived defendant of a fair trial.
Defendant cites three instances in the record where, he contends, Judge Stanford made disparaging comments about defendant’s counsel “in front of the jury and even threatened him with contempt three times.” (Defendant actually cites five instances of alleged disparagement of his trial counsel, but two of those did not occur in front of the jury.) “[A] defendant has a due process right to an impartial judge, and [the] violation of this right is a fatal defect in the trial mechanism.” (People v. Brown (1993) 6 Cal.4th 322, 333.) Without compromising its neutrality, the trial court has the duty and discretion to control the trial. (People v. Snow (2003) 30 Cal.4th 43, 78.) However, “the court ‘commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.’” (Ibid.) “Nevertheless, ‘[i]t is well within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improper or delaying behavior.’ [Citation.] Indeed, ‘[o]ur role . . . is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ [Citation.]” (Ibid.) “We determine the propriety of judicial comment on a case-by-case basis in light of its content and the circumstances in which it occurs.” (People v. Cash (2002) 28 Cal.4th 703, 730.)
Because the determination of misconduct due to a judge improperly inserting himself or herself into the trial is so fact specific, we will provide verbatim the exchanges occurring in the presence of the jury, which defendant claims were prejudicial. One of the exchanges involved Judge Stanford attempting to put an end to defendant’s counsel’s repetitive and argumentative questioning on one topic:
“Q How long was the conversation that you had with [the prosecutor] today about the error that you brought to his attention in your police report?
“[Prosecutor]: Objection.
“The Court: Again, I’m going to ask you to move on. I think the record should show that the officer was present for Slaven’s testimony. That the officer has done nothing to notify the court or defense counsel, to the court’s knowledge, of the testimony that he has regarding the feet-yard confusion. [¶] He’s done no supplemental report, and he’s aware of the possibility a supplemental report can be done. He did tell the prosecutor; and it was some time before he actually was on the witness stand.
“[Defendant’s counsel]: Your honor, I believe under the discovery laws, if the prosecutor’s made aware from the potential testifying witness of errors in his
“[Prosecutor]: Objection, your honor
“[Defendant’s counsel]: – police report, he has the obligation under the law to tell that to defense counsel.
“The Court: The objection is preserved for the record so that if you are correct on that, I’m sure you will prevail.
“[Defendant’s counsel]: Your honor, again I would just ask the court’s attitude, as if I’m incorrect on the discovery laws, seems to be disparaging towards myself, which is a detriment to Mr. Ball.
“The Court: All right. Well, you probably think that when I say the appellate court might reverse something that I do, that I think there is no possibility of that, which is incorrect. It’s been done before.
“[Defendant’s counsel]: I’m not suggesting that. I’m just asking to be able to cross-examine this witness.
“The Court: All right. On the topic that you’re cross-examining him on now, no. Move on to another topic.
“[Defendant’s counsel]: Well, I believe since it was brought up during direct examination, the error, that I should be able to explore whether it is an error or an issue of credibility of this witness that he’s not being truthful.
“The Court: All right. The comment is preserved for the record. Please move on to something else.
“By [defendant’s counsel]: Q Did you bring your error about the feet versus yards to anybody in the police department, did you bring that issue to anybody in the police department?
“[Prosecutor]: Objection. Irrelevant.
“The Court: It’s on the same topic. I’ll allow one more answer. Did you tell anybody else about this error before you told the prosecutor?
“The witness: No.
“By
“The Court: That’s been asked and answered.
“By [defendant’s counsel]: Q And you were sitting here during Ms. Slaven’s testimony; correct?
“By [defendant’s counsel]: Q You don’t have any independent recollection as you sit here today how far Ms. Slaven believed she was from the two black men when she made the identification; is that your testimony?
“The Court: And I have asked you to move on from that topic, the topic of his perception of Slaven’s testimony and when, if ever, he decided that his police report was in error. It’s been covered. Move on.”
The issue of a violation of the discovery laws by the prosecution as alluded to in the above exchange has not been raised on appeal.
The trial court has the duty to control the proceedings during trial, which can include reasonable limits on counsel’s questioning. (Pen. Code, § 1044; People v. Burnett (1993) 12 Cal.App.4th 469, 475.) Here, Judge Stanford summarized the evidence already elicited by defendant’s counsel, then instructed him to move on to another topic. In the context of this case, Judge Stanford’s statement about the likelihood of this appellate court correcting any errors was not prejudicial to defendant.
In another instance, the court admonished defendant’s counsel for continuing to ask argumentative questions.
“Q Well, there seems to be brown areas on the collar. Does there seem to be a brown worn area on the collar here?
“[Prosecutor]: Objection, your honor. Counsel is testifying.
“By [defendant’s counsel]: Q Tell me if you agree with my statement or not.
“A It’s pretty hard to tell from this photo. My eyes aren’t as good as they used to be.
“Q Well, do you need to go see an ophthalmologist and get your eyes checked
“[Prosecutor]: Objection. Argumentative. I’d ask the court to admonish [defendant’s counsel] about his smart aleck remarks.
“The Court: . . . [I]f you can’t control yourself and maintain some level of professionalism, we’re just going to go through this where, you know, I have to tell you this in front of the jury. It seems kind of silly. But if you just can’t just be professional enough to ask questions without the snide remarks and the argumentation and the comments.
“By [defendant’s counsel]: Q When did you realize your eyes were going?
“The Court: [Defendant’s counsel].
“[Defendant’s counsel]: Well, your honor, he just said he couldn’t see the picture. I’m wondering if that goes to his ability to
“The Court: All right. . . . [T]ake a listen. I’ve assigned as misconduct at this point your argumentative approach to the witness both in tone and in the questions. Further proceedings along these lines can be considered to be direct contempt. Please heed my warning.”
Reading only the dry record, we would tend to agree that defendant’s counsel’s questioning was argumentative. Judge Stanford was in the best position to further consider defendant’s counsel’s tone and demeanor. Judge Stanford’s threat to hold counsel in contempt was not uncalled-for, and was not prejudicial to defendant under the circumstances.
In the final instance cited by defendant, the court did not threaten to hold counsel in contempt; the court denied the prosecutor’s request that defendant’s counsel be admonished, and defendant’s counsel himself then reminded the court about the earlier, above quoted threat.
“By [defendant’s counsel]: Q Well, you were here when the district attorney asked that you be designated as the chief investigating officer; correct?
“[Prosecutor]: Your honor, I’m going to object as to relevance. And I’d ask the court to admonish [defendant’s counsel] not to ask this line of questioning
“The Court: . . . The objection irrelevant [sic] is sustained. The request for admonishment is denied.
“By [defendant’s counsel]: Q Other than your mistaken distances that you wrote in your police report, are there any other errors in your police report that you would like to now correct?
“[Prosecutor]: Objection. Goes beyond the scope.
“The Court: Overruled.
“[Defendant’s counsel]: I’m going to call him as my own witness.
“The Court: I’m sorry. Do you have something you want to say before I rule?
“[Defendant’s counsel]: Your honor, I’d object to the court’s continuing responses to my demeanor in the court. I believe it’s undermining Mr. Ball’s case.
“The Court: Well, I’ve asked you before several times not to talk while I’m talking. I suppose you could be confused about the fact that when he voices an objection, that it’s customary for me to make a ruling. And if I want a response from you, I would ask for it. [¶] But if there is any confusion, that would be the procedure that I would request that you follow from now on. So, of course, I apologize for any inconvenience so far. But now that we’re clear on that procedure, if you want to ask your next question, go ahead.
“[Defendant’s counsel]: I would just ask, your honor, that the court has referred to me as snide and sarcastic; and I’d just ask the same respect from the court when addressing myself, the defendant, Mr. Ball.
“The Court: I’m not sure what it is that you’re asking.
“[Defendant’s counsel]: When the court addresses me, it seems to often be in a snide and sarcastic manner directed at me; and I’d just like the record to reflect that.
“The Court: Well, I guess as far as the record so far it probably is true that the record does not reflect some of defense counsel’s raising of voice and some of defense counsel’s attempts to talk over because of course the court reporter can only take one person at a time. But the record should show that defense counsel has probably 20 to 25 times so far tried to talk over myself, the prosecuting attorney and the witness, and the record should so show. [¶] As far as any comments that I have made to that effect about counsel’s demeanor in the past, I don’t recall it. But it’s very possible I might have said something like that. And as far as the court’s demeanor towards you, I fail to believe that there is anything accurate about your description of it, and at any rate your description of the court’s demeanor towards you is irrelevant. So if you’d please ask your next question.
“[Defendant’s counsel]: To refresh the court’s recollection, it’s when you admonished me for contempt yesterday.”
This rather extensive quote shows both Judge Stanford and defendant’s counsel expressing their frustrations with each other; it does not constitute prejudicial misconduct by the court.
Finally, without citation to the record or legal authority, defendant claims Judge Stanford committed misconduct by failing to listen to defendant’s counsel’s opening statement. With nothing more than the inclusion of that claim in a heading of the opening brief on appeal, defendant has waived this argument. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 964.)
C. Alleged Judicial Misconduct Due to Failing to Read Back Testimony
During deliberations, the jury requested a readback of Officer Heying’s direct testimony “related to yellow shirt.” Judge Stanford made the following statement to the jurors: “[Y]ou asked for direct examination of Officer Heying relating to the yellow shirt. [¶] The court reporter and I looked that over and didn’t think there was any. And I think we were mistaken. And we will have to look at that transcript again. But it obviously wouldn’t be too lengthy. So if there is something in Heying’s direct relating to that yellow shirt, we should have it prepared for you pretty shortly. It wouldn’t take nearly as long as last time, in other words. [¶] . . . [¶] So what I’m going to ask you to do then is just go ahead and resume your deliberations. Unless we hear from you that you have changed your mind, we are going to assume you still want to hear this Heying direct examination. And I’ll have the court reporter start looking at it and get it prepared for a readback to you. You may continue your deliberations.” After a short period of further deliberations, the jury reached a verdict, without a readback of Officer Heying’s direct testimony about the yellow shirt.
Defendant contends Judge Stanford committed misconduct by denying the requested readback to the jury. The trial court generally must allow the rereading of relevant testimony as requested by the jury. (People v. Cooks (1983) 141 Cal.App.3d 224, 261.) The record here does not show Judge Stanford denied a readback of testimony. To the contrary, he advised the jury the court reporter was attempting to locate the requested testimony and would provide it as soon as possible. Judge Stanford did not commit misconduct by permitting the jury to continue its deliberations while the testimony was being located.
D. Alleged Judicial Misconduct Due to Instructing the Jury to Retire “Briefly”
When the bifurcated issue of defendant’s prior convictions was submitted to the jury, Judge Stanford told the jury:
“The Court: . . . [¶] . . . [¶] So basically, then, we’re going to go ahead and ask you to retire briefly. We will bring you in the finding forms regarding the prior convictions; and then as soon as you have reached
“The court reporter: Just a minute, your honor. Thank you.
“The Court: We will be giving you some forms regarding the findings on the prior conviction allegations. As soon as you do, if you are able to arrive at verdicts on these, you just fill out the forms, and let the bailiff know, and then we will receive your verdicts. You had an objection?
“[Defendant’s counsel]: I would just object as to the court saying they’ll be asked to retire briefly.
“The Court: All right. You can take as long as you want. All right, then, just let us know as soon as you finish.”
Defendant argues Judge Stanford committed prejudicial error by telling the jury to deliberate only briefly on the prior convictions. “‘A trial judge should refrain from placing specific time pressure on a deliberating jury and should never imply that the case warrants only desultory deliberation. Such comments risk persuading legitimate dissidents, whatever their views, that the court considers their position unreasonable.’ [Citation.]” (People v. Anderson (1990) 52 Cal.3d 453, 469.) We need not determine whether Judge Stanford’s comments could have been understood by a reasonable jury as defendant contends. Judge Stanford corrected his statement by specifically advising the jury “[y]ou can take as long as you want.” Moreover, given the clear evidence relating to defendant’s prior convictions, it is not reasonably probable defendant would have received a more favorable verdict on the bifurcated trial of his priors had Judge Stanford not made an allegedly improper statement relating to the amount of time the jury should deliberate. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II.
Defendant’s conviction was supported by substantial evidence.
Defendant argues his conviction must be reversed because it was not supported by substantial evidence. Specifically, defendant argues Slaven misidentified him; the testimony of the police officers regarding what type of jewelry was seen in the shirt defendant carried was contradictory; the police failed to book key pieces of evidence against defendant (the necklace, the watch, and defendant’s clothes); and the police officers made mistakes in completing the police report. To prove defendant committed first degree burglary, the prosecution had to establish defendant entered an inhabited residence with the intent to commit a felony. (Pen. Code, §§ 459, 460, subd. (a).) Defendant concedes two men unlawfully entered the Zukers’ house with the intent to commit a theft, but argues there was no evidence he was one of those men.
“In Jackson v. Virginia (1979) 443 U.S. 307, 318-319 . . . , the United States Supreme Court held, with regard to the standard on review of the sufficiency of the evidence supporting a criminal conviction, that ‘[t]he critical inquiry . . . [is] . . . whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. . . . [T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ An identical standard applies under the California Constitution. [Citation.] ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence.”’ [Citation.]” (People v. Staten (2000) 24 Cal.4th 434, 460.)
Slaven’s testimony that defendant and Bryant were the men she saw entering the Zukers’ house was sufficient to support defendant’s conviction, despite testimony that was contradictory regarding which man was wearing or carrying which shirt. “[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.] . . . [T]he evidence of a single witness is sufficient for proof of any fact. [Citations.]” (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) Any weakness in a witness’s identification testimony, lack of clarity or confusion in identification testimony, or failure to make a positive identification goes to the weight, not the sufficiency, of the evidence. (People v. Rist (1976) 16 Cal.3d 211, 216; People v. Elwood (1988) 199 Cal.App.3d 1365, 1372; People v. Prado (1982) 130 Cal.App.3d 669, 674.) Unless “‘the evidence of identity [is] so weak as to constitute practically no evidence at all,’” it meets the “threshold of reliability” necessary to affirm a jury’s finding of guilt. (People v. Prado, supra, 130 Cal.App.3d at p. 674.) Defendant argues that because the police officers’ testimony was different from Slaven’s, her testimony was “completely wrong” and thus must be discounted. The jury could and did decide which testimony to accept.
Defendant also argues there was not sufficient evidence to support his conviction because the testimony of the police officers was conflicting as to whether a watch or a necklace was protruding from the shirt defendant was carrying when he was stopped by Sergeant Matson. There was substantial, credible evidence that Mrs. Zuker’s necklace was found in the shirt defendant was carrying, which was not negated by the existence of other contradictory evidence.
Finally, defendant argues the prosecution’s case was undermined by the failure to book key items into evidence and by errors in the police report. Those errors were explored at length during trial. Defendant was stopped near the scene of the crime; matched a description of a suspect provided by an eyewitness; was identified as one of the burglars by the eyewitness during a field show-up and at trial; was linked directly to a car an eyewitness observed in front of the Zukers’ house; and either had in his possession, or was in the company of a suspect in the possession of, property stolen from the Zukers’ house. Although an allegedly inadequate police investigation can lessen the weight the jury gives to trial testimony, in this case the substantial evidence supporting defendant’s conviction could not be outweighed by such alleged police error.
III.
Although defendant made out a prima facie case of discrimination by the prosecution in jury selection, the record discloses race-neutral grounds for challenging two African-American jurors.
Defendant contends the prosecution improperly used peremptory challenges to exclude two African-Americans, Miss R. and Ms. D., from the jury, in violation of Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258. Defendant argues this violated his right to a trial by a jury drawn from a representative cross section of the community. (Defendant is also African-American.)
After the prosecution exercised a peremptory challenge against two African-Americans, defendant made a Batson/Wheeler motion. The trial court denied the motion, concluding defendant had not made out a prima facie case of discrimination. “[O]n the face of it I don’t think any reasonable person could conclude or even really have a suspicion that any of this is based on race. It does happen that two out of the ten that he excused were black, but one black remains on the jury and he passed four, five times with another black on the jury until both of you now have exhausted your challenges. So the court finds no prima facie case.”
To make a prima facie case of discrimination a defendant must prove (1) the person excluded was a member of a cognizable group, and (2) based on all of the circumstances of the case, there is a reasonable inference the person was challenged because of discrimination. (Johnson v. California (2005) 545 U.S. 162, 169.) We will uphold the trial court’s finding that defendant did not establish a prima facie case of discrimination if it was supported by substantial evidence. (People v. Smith (2005) 35 Cal.4th 334, 346-347.) African-Americans are a cognizable group, so the first prong of the test was met. (People v. Clair (1992) 2 Cal.4th 629, 652; Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, 1077.)
The prosecutor asked both Miss R. and Ms. D. whether they could be impartial and give both defendant and the prosecution a fair trial, despite the fact defendant was African-American.
“Q. [Ms. D.], you know, I’m entitled to a fair jury trial just as much as the defendant is, okay. Now, obviously, the defendant is an African-American, okay? Would you hold that against him and view – be an impartial juror in this matter?
“A. I believe so.
“Q. Would you be impartial?
“A. Yes.
“Q. Give him [a] fair trial, correct?
“A. Yes.
“Q. No matter what the race is?
“A. Yes.
“Q. You’d give me a fair jury trial, would you not?
“A. Yes, I would.
“Q. No matter what my race was, Mr. Government?
“A. Yes, I would.
“Q. All right. Miss R[.]?
“A. Uh-hmm.
“Q. Am I pronouncing that correct?
“A. Yes.
“Q. Ma’am, do you – the questions I asked [Ms. D.], do you agree with those questions?
“A. Yes.
“Q. Would you give me a fair trial just as much as the defendant?
“A. Yes.
“Q. Miss P[.], same questions to you, ma’am. Would you be able to give the defendant a fair jury trial?
Miss P. is apparently not an African-American, since neither side tells us she is. She was excused by the prosecution at the same time as Miss R. and Ms. D.
“A. Exactly.
“Q. I’m sorry.
“A. Exactly.
“Q. And myself a fair jury trial?
“A. Yeah.”
Those were the only prospective jurors of whom the prosecution asked such questions. Based on that questioning, it is a reasonable inference that Miss R. and Ms. D. were challenged because they are African-Americans. (See Batson, supra, 476 U.S. at p. 97 [prosecutor’s questions during voir dire may support inference of purposeful discrimination].) The trial court’s finding that defendant did not establish a prima facie case of discrimination was not supported by substantial evidence.
Although the prosecution did not articulate any race-neutral grounds for challenging Miss R. and Ms. D. because the trial court concluded defendant had not made out a prima facie case of discrimination, we must nevertheless affirm the court’s ruling “where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.” (People v. Farnam (2002) 28 Cal.4th 107, 135.)
Miss. R. advised the court it would be a hardship for her to serve on the jury because she worked in a private school, “one-on-one for a girl that’s deaf, she has Tourette’s, she’s obsessive compulsive. And there’s no one else to look after her.” Miss R. further explained that other teachers worked in the same classroom, but had other students for whom they had one-on-one responsibilities. She also stated that if she were on the jury, her obligations to the student she works with would “be lingering in the back of [her] mind sitting here,” and it was possible she would not listen to the evidence if she was thinking about her student. Although the court stated it was “unable to excuse [her] at this time [for cause],” we conclude the prosecution could have challenged Miss R. based on her stated inability to concentrate on the evidence because of concerns about her student.
Ms. D. told the trial court she was a witness to a bank robbery and testified at the trial of the two defendants in that case. Because this case turned heavily on eyewitness testimony, the prosecution could have been concerned that Ms. D.’s own experiences of witnessing a bank robbery and then testifying at trial might affect her ability to fairly and impartially judge the evidence in this case.
Because the record suggests race-neutral grounds on which the prosecution could have challenged Miss R. and Ms. D., and does not show any purposeful racial discrimination by the prosecutor, we must affirm the trial court’s ruling on defendant’s Batson/Wheeler challenge, despite the fact the court improperly concluded defendant had not made out a prima facie case.
IV.
The trial court did not prejudicially err in failing to instruct the jury sua sponte with CALJIC No. 2.80.
Defendant next argues the trial court erred by failing to instruct the jury sua sponte with CALJIC No. 2.80. (Pen. Code, § 1127b.)
We first consider whether the testimony was, in fact, expert testimony. Defendant contends a significant portion of the testimony by Sergeant Matson and Officers Moore, Irish, and Solorio was expert testimony. We conclude the testimony regarding the decision to set up a perimeter, the questioning of witnesses, the description of the suspects, the collection of, and later decision not to retain, certain evidence, and the preparation of the police report was a lay witness’s explanation of what happened, not expert testimony.
There is one portion of Officer Irish’s testimony that probably is not expert testimony, but could be construed as such: his testimony that, based on his training and experience as a peace officer, he knew that crowbars, like the one found in the trunk of the blue Nissan, are “used by crooks to break into houses.”
The trial court’s failure to instruct the jury sua sponte regarding the weight to give expert testimony is not prejudicial unless, after reviewing the entire record, we conclude the jury might have rendered a different verdict if the instruction had been given. (People v. Williams, supra, 45 Cal.3d at p. 1320.) Defendant argues that if CALJIC No. 2.80 had been given, the jury would have been more likely to disregard the expert testimony. Assuming the truth of defendant’s argument for purposes of this analysis, we conclude defendant suffered no prejudice. He fails to explain how this one piece of alleged expert evidence, even if given undue weight by the jury, could have resulted in prejudicial error. Given the strength of the evidence against defendant, and the fact the jury was instructed generally on the believability of witnesses (CALJIC No. 2.20), any error was harmless.
CALJIC No. 2.80 reads, in relevant part: “In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [¶] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. [¶] You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable.”
V.
The trial court did not err in sentencing defendant to the upper term.
Cunningham generally requires that the aggravating factors used to impose an upper term sentence be found by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) Recognizing an exception to the general rule, and citing Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247, the Supreme Court held this requirement applies only to aggravating factors “[o]ther than a prior conviction.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 864].) Defendant argues Almendarez-Torres v. United States “is no longer persuasive authority on this issue” because it was decided before Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Cunningham. Apprendi itself, however, carves out an exception which Cunningham recognizes, namely, that prior convictions do not need to be found by a jury beyond a reasonable doubt. (See Apprendi, supra, 530 U.S. at p. 490; Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 864]; People v. Black (July 19, 2007, S126182) __ Cal.4th __, __ [2007 Cal. Lexis 7604, *33].)
The trial court made the following statement on the record when it imposed the upper term for defendant’s burglary conviction: “[I]t’s my reading of Blakely [v. Washington (2004) 542 U.S. 296] that matters dealing with priors are matters that can be taken into account for aggravation without jury findings. That’s clear from the Blakely finding, and that the defendant has multiple priors alleged and unalleged, so I’m not too sure that I – as a matter of fact, I’m real sure that I don’t agree that, under the circumstances, the defendant would be entitled to some sort of a jury finding before aggravation could be found here because of the particular circumstances, which are all outlined in the probation report, particularly dealing with the prior convictions, their nature, and so on and so forth . . . . [¶] . . . [¶] . . . All I’m saying, though, is Blakely says that as an aggravating factor, priors are something that the jury doesn’t need to pass upon. . . . [I]t referred, clearly, to factors and enhancements giving rise to the right to a jury finding, and even that’s subject to argument, whether an enhancing factor under California law is the same as taking a sentence out of the normal range under Washington law and making it more. [¶] . . . [¶] So the court has looked over the [probation] report and there are numerous aggravating factors listed in the report, beginning on page 14, which, according to the Blakely decision, since they weren’t found to be true by a jury, that they cannot be used. Particularly, the planning and professionalism aspect, and then there is mentioned the defendant’s prior convictions being serious. But if they are and he’s sentenced on the serious felony, I don’t think that you can, again, use that to aggravate, if he gets sentenced for those. [¶] And the fact of the prison terms, you can’t use the aggravated if he also gets sentenced for those. And the fact that he was on parole at the time, I don’t know whether that would be a factor that the jury must pass upon before the court could use it to aggravate, and so I choose not to use it, but just to use the remainder of the prison priors – actually, just the one that is not being used to enhance the original sentence. [¶] But because of the fact that the defendant has a prison prior in 1998, it’s a fact that he was on parole at the time, still, at the commission of this crime, but just the fact that a prior itself, and that it’s not being used, outweighs any mitigation. [¶] As there is none, the court finds that the aggravated term of six years is the appropriate term. The court finds that, pursuant to the strike allegation, that that term should be doubled to 12 years.”
Defendant argues that because the trial court mentioned aggravating factors other than the prior conviction, it must have considered them in imposing the upper term sentence. The trial court explained the aggravating factors it could and could not use in order to impose a legal sentence. Defendant’s argument that the trial court must have considered all the aggravating factors in imposing the upper term sentence simply because the court mentioned them is baseless. If the trial court had not mentioned the other aggravating factors on the record, it still would have known about them by virtue of the probation report; defendant would have no grounds to appeal. Were impermissible factors relied on by the trial court to impose the upper term sentence? No. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) In this case, the record shows only permissible factors were relied upon by the trial court. And, even if the court had considered other impermissible aggravating factors, it would not matter to our analysis. (People v. Black, supra, __ Cal.4th at p. __ [2007 Cal. Lexis 7604, at pp. *29, 41] [if one aggravating factor is established by means satisfying the requirements of the Sixth Amendment, trial court may impose upper term sentence].)
Defendant makes two related arguments on appeal: (1) the trial court used the wrong standard of proof, and (2) the information could not be amended to add aggravating factors after the jury was dismissed. As discussed ante, the use of defendant’s prior criminal conviction as an aggravating factor does not require a jury finding beyond a reasonable doubt. The fact of defendant’s prior conviction requires “the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction – a task to which Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part of the sentencing function.’ [Citation.]” (People v. McGee (2006) 38 Cal.4th 682, 709.) The only aggravating factor relied on by the trial court was the prior criminal conviction, which is an aggravating factor not required to be found by a jury beyond a reasonable doubt. Defendant’s arguments are therefore meritless.
Defendant also argues the prior conviction exception does not apply to aggravating factors relating to the prior conviction (such as the increasing seriousness of the crimes). Even if this argument applied in this case (which it does not, as explained ante), the California Supreme Court has resolved the issue, and held the prior conviction exception (1) should not be read narrowly, and (2) does encompass the aggravating factor that defendant’s prior convictions are numerous or of increasing seriousness. (People v. Black, supra, __ Cal.4th at p. __ [2007 Cal. Lexis 7604, at pp. *36-39].) Similarly, defendant’s argument that an upper term sentence is invalid if one or more impermissible aggravating factors were considered along with one permissible factor is both inapplicable in this case, and now resolved against defendant. (Id. at p. __ [2007 Cal. Lexis 7604, at pp. *29, 41].)
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.