Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F09233
ROBIE, J.
A jury found defendants Holden Lamar Carter and Clay Everett Brown guilty of kidnapping to commit robbery, kidnapping in the commission of carjacking, and robbery. The court sentenced them to life in prison with the possibility of parole.
On appeal, defendants jointly raise the following contentions: (1) the trial court erred in denying their suppression motions; (2) the trial court erred in denying their Wheeler/Batson motions; (3) the trial court erred in destroying prospective juror questionnaires; and (4) the trial court erred in admitting evidence of two prior uncharged robberies. Finding no prejudicial error, we affirm the judgments.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69].
FACTUAL AND PROCEDURAL BACKGROUND
The convictions here resulted from an incident in which the victim picked up a prostitute in his car and drove to an empty parking lot to perform a sex act. The prostitute’s accomplices, who are defendants here, came to the parking lot and robbed, carjacked, and kidnapped the victim. The incident ended with the victim’s escape. Two days later, police stopped defendants because the car Carter was driving had expired registration.
In addition to these crimes, there was evidence of three other robberies defendants had perpetrated.
A
Current Crimes
Dolly Boushack and Brown were live-in lovers who met in high school. When Boushack lost her job as a massage therapist, she turned to prostitution. She hated prostitution, so Brown suggested they commit “set-up robberies.”
On October 14, 2005, Brown and Boushack planned a robbery with Brown’s cousin Carter and another man, Antonio Arkansas. Boushack would set up the victim, Brown and Carter would “come to the [car] window and handle what [they] needed to handle,” and Arkansas would drive the getaway car.
About 3:00 a.m. or 4:00 a.m. the next day, they executed the plan. Brown, Carter, and Arkansas dropped off Boushack in the Stockton Boulevard and Florin Road area where she encountered C. C., who was looking for a “date.” Boushack got inside C. C.’s car, and they negotiated a price of $20 for a “blow job.” Boushack directed C. C. to drive to a parking lot. While they were driving, Boushack spoke to Brown on her cellular phone to tell him she had “picked one up” and was “going to th[e] spot.” At the parking lot, Boushack had C. C. turn off the car so it would take longer to start up when Brown and Carter approached and had him roll down the windows “[s]o it would be easier for [Brown and Carter] to get into the car.” Boushack began orally copulating C. C. as he reclined in the driver’s seat.
A minute later, Brown came up to the driver’s side door holding what looked liked a black semiautomatic gun, and Carter came up to the passenger’s side door holding what looked like a Taser gun. Boushack got out of the car. Brown opened the driver’s side door, and Brown and Carter pushed C. C. into the backseat. Brown got into the driver’s seat, and Carter got into the front passenger’s seat. Carter stunned C. C. with the Taser gun four or five times. Brown and Carter took C. C.’s wallet. Carter took Brown’s gun and held it to the back of C. C.’s head and told him, “‘I should just shoot you.’”
After Boushack got out of C. C.’s car, she walked down the street and got into the car Arkansas had parked nearby.
Brown began driving the car, and Carter hit C. C. in the back of the head a couple of times with the gun, telling him twice, “‘I’m just gonna have to kill you.’” C. C. reached for the gun and struggled for possession. When C. C. got the gun, he pointed it at Carter’s chest and pulled the trigger. The gun did not go off.
When the car stopped at a light, C. C. opened the door and crawled out of the car, with the gun still in hand. He saw an off-white Chevrolet following his car. Boushack was inside the Chevrolet. C. C. ran to a nearby store to call 911.
Sheriff’s deputies, including John Mercurio, arrived within 30 seconds, and C. C. told them what had happened. C. C.’s car was later found, but the stereo, amplifier, and speakers were missing.
Two days after these crimes, at 1:19 a.m., Deputy Mercurio stopped a white Chevrolet because it did not have a valid registration sticker on the license plate. Carter was driving the car and Brown and Arkansas were in the passengers’ seats. When Deputy Mercurio searched the car, he found a stun gun wrapped in a bandana and C. C.’s cellular phone. He also found several wallets and other cellular phones.
C. C. was brought to the scene for an in-field show up. He identified Brown and Carter as the men who assaulted him and the white car as the one that followed his car after he escaped.
B
Prior Robberies
Boushack told police about three similar robberies in which she, Brown, and Carter had participated. In one (excluding the charged crimes), she was the prostitute lure, and in the other two she was the getaway driver and someone she knew only as Felicia was the prostitute lure.
The one in which Boushack was the prostitute lure occurred one or two weeks before they robbed C. C. Boushack “rubbed” the victim for a few minutes in preparation of giving him a “blow job” when Brown and Carter showed up. Brown hit the victim in the head with a pistol, and Carter let Boushack out of the car. Defendants stole the victim’s car radio and wallet.
In the two incidents in which Felicia was the prostitute lure and Boushack was the getaway driver, Carter and Brown robbed the victims and Boushack tried to get money from the victims’ banks using ATM cards.
DISCUSSION
I
The Trial Court Did Not Err In Denying The Suppression Motions
Defendants contend the trial court erred in denying their suppression motions because “the traffic stop was pretextual” and the trial court needed to determine this issue and because the search was not a “valid probation search.” We find no error.
A
Facts From The Suppression Hearing
At 1:19 a.m. on October 17, 2005, Deputy Mercurio was driving his marked patrol car through a parking lot north of Florin Road when he saw a white car parked behind a McDonald’s restaurant. He “[a]lmost immediately” thought the car might have been involved in a carjacking and robbery two nights before in which he was one of the responding officers. He had a suspicion that “something no good was going on” and wanted to stop the car, so he was looking for a “DMV violation.” As Deputy Mercurio drove toward the car “to take a closer look,” the “vehicle started to drive off.”
The car passed Deputy Mercurio, who made a U-turn and followed the car. Once behind the car, the deputy noticed it did not have a valid registration sticker. He immediately looked at the car’s windows and “around the vehicle” to see whether it had a temporary registration sticker. It did not. Regardless of this violation, he was going to stop the car because he “believed [he] had probable cause” based on the prior carjacking.
Deputy Mercurio stopped the car after it left the parking lot. He asked Carter, who was the driver, for his license. Carter said he did not have one and told the deputy his name. Deputy Mercurio asked the passengers for identification. The front passenger, Antonio Arkansas, gave the deputy his California identification card, as did Brown. The deputy ran “record checks” and “receive[d]” “information” that Brown and Carter were on “search able probation” and Arkansas was on “CYA parole.”
Deputy Mercurio called for additional backup units and once they arrived the deputies took the occupants out of the car and searched it “to ensure they were in compliance with the terms of their probation.” Deputy Mercurio found a stun gun and a Verizon cellular phone.
Based on this evidence, the trial court ruled that Deputy Mercurio lawfully stopped the car because “the vehicle was unregistered or didn’t have a current tag on it, [and it] matched the description of the vehicle that the officer had firsthand the night before.” Once the deputy stopped the car, given the information about “what the [deputy] knows from the night before” and the “vehicle not having a [tag],” the trial court ruled it was reasonable for him to “check out who is in the vehicle and go forward from there.” “Once the search able probation part [wa]s discovered, then, of course, the search c[ould] occur because of that . . . .”
B
The Trial Court Did Not Err In Denying The Suppression Motions
Defendants first contend the trial court erred in denying their suppression motions because “the traffic stop was pretextual.” They argue the trial court “should have resolved the defense allegation that the stop was pretextual and should have determined whether in fact Deputy Mercurio did determine before the traffic stop that the car lacked a valid registration sticker.” They posit that had the trial court “made a factual determination that Deputy Mercurio could not until after making the traffic stop see whether the car had a valid current registration sticker, the Court should have granted the suppression motion.” We disagree.
Consistent with the Fourth Amendment, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” (Whren v. United States (1996) 517 U.S. 806, 810 [135 L.Ed.2d 89, 95].) Supreme Court precedent “foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” (Id. at p. 813 [135 L.Ed.2d at p. 98].) Therefore, the officer’s subjective motivation in stopping the car is irrelevant to a Fourth Amendment analysis where there is probable cause to stop the car. (Id. at pp. 809-810 [135 L.Ed.2d at pp. 95-96; People v. White (2001) 93 Cal.App.4th 1022, 1025.)
Here, Deputy Mercurio had probable cause to stop the car, making his subjective intent irrelevant for Fourth Amendment purposes. When he was following the car, he saw that it did not have a valid registration sticker or a temporary registration sticker. California law requires that a car be currently registered (Veh. Code, § 4000, subd. (a)(1)); its registration be renewed annually prior to the expiration of the registration year (id., § 4601, subd. (a)); and its current registration tabs be displayed on the rear license plate (id., § 5204, subd. (a)). The evidence of these Vehicle Code violations provided probable cause for Deputy Mercurio to stop the car.
Consistent with this evidence and contrary to defendants’ argument on appeal, the trial court found that Deputy Mercurio noticed that the registration was missing or that the current tag was missing before he made the stop.
The case on which defendants rely, People v. Rodriquez (2006) 143 Cal.App.4th 1137, does not help them. There, the defense alleged that the police officer had lied when he stated he stopped defendant’s car because the brake light was “‘burnt out,’” and presented uncontradicted testimony from defendant’s employer that “when he picked up [defendant]’s car at the police impound lot three days after the arrest both taillights and brake lights were operational.” (Id. at p. 1141.) “The trial court ruled it did not need to decide whether the police made up their claim defendant’s car had a ‘burnt out’ right brake light because any taint arising from the alleged unlawful stop was dissipated by the discovery of the arrest warrant prior to the search.” (Id. at p. 1140.) The appellate court reversed and “remand[ed] the cause to the trial court to rehear defendant’s suppression motion and make a factual determination as to whether at the time of the traffic stop defendant’s car had a burnt-out brake light as the officers claim, or if they could reasonably believe it was burnt out.” (Id. at p. 1141.)
Defendants next contend the trial court erred in denying their suppression motions because the resulting search was illegal as it was not a “valid probation search.” They argue that the People “failed to make a record that the search did not exceed the scope of the probation condition[s]” and there is no “evidence that the search was undertaken to effectuate the purpose of probation.”
Here, Deputy Mercurio testified that after he identified both defendants, he ran “record checks” and “receive[d]” “information” that the two were on “search able probation.” After the People presented this evidence, defendants did not challenge it by producing evidence that the term “search able probation” did not encompass the search of the car or exceeded the scope of the search provision. Defendants therefore have not carried their burden to show that the term “search able probation” did not permit a search of the car. (See People v. Garcia (1987) 195 Cal.App.3d 191, 198 [burden is on defendant to present record demonstrating the error of which he complains].)
This leaves defendants’ contention that the trial court erred in denying their suppression motions because the probation search of the car was invalid as it was not reasonably related to the purposes of probation or undertaken to effectuate the purposes of probation.
“When involuntary search conditions are properly imposed, reasonable suspicion is no longer a prerequisite to conducting a search of the subject’s person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing.” (People v. Reyes (1998) 19 Cal.4th 743, 752.) A search is arbitrary and capricious when the motivation for the search is unrelated to rehabilitative, re formative, or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the probationer. (Id. at p. 754; People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408.) A search is a form of harassment when its motivation is mere whim or caprice. (Reyes, at p. 754; Cervantes, at p. 1408.)
Here, Officer Mercurio wanted to stop the car, thinking it might have been involved in a carjacking and robbery that had happened two nights before in which he was a responding officer. After he stopped the car and removed the occupants, he searched it “to ensure [defendants] were in compliance with the terms of their probation.” These motivations were directed toward legitimate law enforcement purposes, were not based on personal animosity toward defendants, and were not based on a mere whim or caprice.
II
There Was No Wheeler/Batson Error And Destruction Of Prospective Juror Questionnaires Does Not Require Reversal
Defendants contend the trial court erred in denying their Wheeler/Batson motions directed at the prosecutor’s peremptory challenge of two African-American prospective jurors, N. J. and T. C. In addition, defendants contend they have been deprived of meaningful appellate review, because the questionnaires completed by these prospective jurors and all prospective jurors who were not seated or who were not alternates were destroyed.
As we will explain, defendants have not carried their burden to show that destruction of the juror questionnaires impedes meaningful appellate review, and the trial court did not err in denying their Wheeler/Batson motions.
A
Facts From Jury Selection
N. J. asked the court to remove her from jury duty because she was a student at American River College who had to take public transportation to her 5:30 p.m. class and because she “ha[d] a paper due on Thursday.” The court “d[id]n’t believe that would be a problem because [N. J. would] get out of here by 4:30” and denied her request to be excused for hardship.
During voir dire, in response to questions by the court, N. J. stated she had been “an associate teacher with Head Start” for three years, “work[ing] with toddlers, eighteen months to three years old.” She had been the victim of a rape 20 years before that “never went to trial or anything.” The rape still had “some ramifications on [her],” but those ramifications would not “affect [her] decision-making process in this case,” and there was nothing about the rape that “would affect [her] in any way sitting as a juror on this case.” She felt she “could be fair to both sides in this case.”
The prosecutor later asked N. J. questions “about what [she] put on [her] questionnaire.” When asked about being raped and whether that would “enter into [her] ability to be fair in this case if [she] ha[d] to listen to victim testimony, [and] things of that nature,” N. J. replied, “Somewhat.” If the case “involved rape or something” she “wouldn’t be able to sit on this case” but since this case did not “involve that” she would “be okay.” When the prosecutor asked her about her status as an evening student, N. J. said she did not think she would “be able to give a hundred percent to this case” because she would be late for class, as she had to catch Regional Transit and the light rail, and her grade would be affected because it was a “nine-week accelerated class.”
The prosecutor then exercised peremptory challenges against two other prospective jurors.
The court then questioned prospective juror T. C. His wife worked at Loaves & Fishes and he was unemployed. His “last occupation was [as a] construction, fiberglass home insulator.” His sister worked for the Sacramento Police Department and his brother-in-law was a dispatcher for the “Highway Patrol.” T. C. “was involved” in a “petty theft” “[a]bout 30 years ago” in the Sacramento area. He was unsure whether charges were filed, and “[a]ll [he] kn[e]w [about the case was that] an attorney took care of it for [him].” The attorney was the father of his football teammate at American River College. During questioning by defense counsel, T. C. added that he quit the football team, he had not served on a jury before, and his sister was an office worker for the police department.
After the prosecutor finished questioning other prospective jurors, T. C. told the court there were “[t]wo things [he] forgot to mention”: his nephew used to work for the “[y]outh authority” and his sister-in-law used to work for a judge in Sacramento, although he was unsure whether she still did or what her job responsibilities were.
The prosecutor exercised a peremptory challenge against N. J. Defendants made a Wheeler/Batson motion regarding N. J. The prosecutor said he would not respond “unless the Court is going to find that there’s a prima facie case that even r[]ises to the level of . . . putting [his] explanations on the record,” which the prosecutor believed “hasn’t even been shown in this case.” The court “agree[d] at this point” and denied the motion.
Later, the prosecutor exercised a peremptory challenge against T. C. Defendants made a Wheeler/Baston motion. The prosecutor again said he would not put his reasons on the record unless the court found a prima facie case. The court responded, “I would just like your reasons put on the record.”
The prosecutor explained he “excused [T. C.] for the following non-race reasons: Number one, he’s unemployed. I just do not keep unemployed people on my juries, the simple fact. That has nothing to do with his race or color of skin. [¶] Number two, he did have a theft. It was 20 years ago. I understand that. It’s also a non-race based factor that I weighed in making my decision. [¶] Furthermore, he indicated--and I don’t know if counsel picked up on this, and it’s not a huge reason--but he quit his football team. And I’m probably the wrong guy to tell that to because I played four years of college football, and I gleaned something from that. And those are the reasons. It has nothing to do with his race. Those are the reasons I kicked him. [¶] Also, what concerned me is--and I’m not sure if he was not being forthcoming or whether we just mistook him--but we did get through the questioning, and then he raises the fact that he also has a nephew [who] works at CYA, a sister-in-law who works for a judge. And he doesn’t know a lot of information about it. He can’t provide us information about it. So those are the reasons that I kicked him.”
The court denied the motion and “note[d] that for the record, whether it makes any difference or not, is he weighed probably in the area of 350 to 400 pounds . . . .”
B
Facts Regarding Destruction Of Juror Questionnaires
After defendants filed a motion to settle the record, the trial court disclosed that it had retained jury questionnaires from only the seated and alternate jurors and had shredded those from venire members who were not selected. The prosecutor and defense attorneys did not keep copies of the shredded questionnaires.
C
Law Regarding Wheeler/Batson
“A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias--that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’--violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution,” and “also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.” (People v. Avila (2006) 38 Cal.4th 491, 541.)
The United States Supreme Court has reaffirmed the three-prong Batson test to be used by trial courts when motions are made challenging peremptory strikes: “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138].) The same three-prong test has been endorsed by our Supreme Court for proof of state constitutional claims. (People v. Bell (2007) 40 Cal.4th 582, 596.)
As to the third prong of the test, the United States Supreme Court has performed a comparative juror analysis for the first time on appeal in a habeas proceeding stating, “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar non black who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-El v. Dretke (2005) 545 U.S. 231, 240 & fn. 2 [162 L.Ed.2d 196, 214-215].)
In several cases after Miller-El, the California Supreme Court has declined to decide whether a comparative juror analysis on direct appeal is constitutionally required by Miller-El, preferring instead to engage in such analysis on the assumption it is required. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017; People v. Avila, supra, 38 Cal.4th at p. 546; People v. Huggins (2006) 38 Cal.4th 175, 232; People v. Cornwell (2005) 37 Cal.4th 50, 71.) On January 24, 2007, the California Supreme Court granted a petition for review in People v. Lenix (S148029), where the issue is: Must an appellate court perform a comparative juror analysis for the first time on appeal to evaluate the genuineness of the prosecutor’s reasons for peremptorily challenging prospective jurors?
D
Defendants Have Not Shown That Destruction Of Juror Questionnaires Impedes Meaningful Appellate Review
At the outset, we address defendants’ claim that the judgment must be reversed because the trial court improperly destroyed juror questionnaires.
“Both the United States Constitution and the California Constitution entitle a criminal defendant to a record on appeal sufficiently complete to permit meaningful appellate review.” (People v. Haley (2004) 34 Cal.4th 283, 305.) In California, “[a]ll records and papers maintained or compiled by the jury commissioner in connection with the selection or service of a juror . . . shall be preserved for at least three years after the list used in their selection is prepared, or for any longer period ordered by the court or the jury commissioner.” (Code Civ. Proc., § 207, subd. (c).)
The destruction of prospective juror questionnaires does not require reversal--on statutory grounds, due process grounds or otherwise--unless it impedes meaningful appellate review. (People v. Haley, supra, 34 Cal.4th at p. 305; see People v. Howard (1992) 1 Cal.4th 1132, 1166 [rejecting a constitutional challenge to the failure to transcribe portions of the record where, among other things, the record was “sufficient to permit adequate and effective appellate review”].) It is a defendant’s burden to show that the record on appeal is not sufficient to permit meaningful appellate review. (Haley, at p. 305.)
Defendants do not carry their burden. They argue the error here is “structural” because “a prejudice inquiry is impractical,” believing it “unfair to require [them] to establish prejudice on the basis of information which has been irretrievably lost.” Not so.
The record shows that, in the trial court, all the attorneys had the juror questionnaires with the written responses and were free to ask questions based on those responses. (People v. Haley, supra, 34 Cal.4th at p. 305.) In fact, it is a fair inference that many of the questions posed by the court and the parties were based on those questionnaires because the court and the parties often began their inquiries of prospective jurors by asking them questions relating to very specific information. The logical place from where they drew their knowledge about the prospective jurors was the questionnaires. In fact, the record bears this out, as during the questioning of N. J., the prosecutor stated he was asking her questions “about what [she] put on [her] questionnaire,” and during the questioning of another prospective juror, the court referred to “[her] questionnaire.” As the People succinctly state in their brief, “[t]he fact that [defendants at trial] chose not to quote from the questionnaires is not evidence of prejudice but it is evidence of lack of relevancy to the [Wheeler/Batson] claim.”
Moreover, simply because we do not have the questionnaires from the prospective jurors who were not seated or who were not alternates does not mean that a comparative juror analysis cannot be performed. Indeed, in the portion of the argument dealing with Wheeler/Batson error, defendants makes comparisons between seated jurors and prospective jurors (other than those on whom the prosecutor exercised peremptory challenges) on one hand and the two African-American prospective jurors on whom the prosecutor exercised peremptory challenges, showing that such a comparison is still possible on appeal.
Defendants have also not convinced us that the destroyed questionnaires would help their Wheeler/Batson argument, even as it relates to Miller-El’s comparative analysis. As we have already noted, the court and the parties asked the prospective jurors about their written responses in the questionnaire. And even if those questionnaires were part of the record, defendants fail to recognize that the questionnaires could not aid in the statistical portion of the Miller-El analysis that consists of comparing the percentage of peremptory-challenged “qualified non black panel members” to the percentage peremptory-challenged “black ones” (Miller El v. Dretke, supra, 545 U.S. at pp. 240, 266 [162 L.Ed.2d at pp. 214, 230]) because the questionnaires do not have information about race.
On this record, defendants have failed to carry their burden of showing that the record on appeal is insufficient for meaningful appellate review.
E
There Was No Wheeler/Batson Error As To Prospective Juror N. J.
Defendants contend “[t]he record establishes a prima facie case of discriminatory exclusion of [N. J.],” and because a prima facie showing had been made and counsel re raised the objection regarding the peremptory challenge of N. J., the court should have required the prosecutor to explain why he excused her. We disagree.
“In cases in which the trial court found no prima facie showing of discrimination in jury selection, and it is unclear what standard the trial court employed in making its determination, we have reviewed the record independently to discern whether a prima facie showing has been made under the proper ‘inference of discriminatory purpose’ standard.” (People v. Williams (2006) 40 Cal.4th 287, 310.)
Here, the trial court did not err in determining a prima facie case had not been made, and therefore, the court was not required to make the prosecutor explain why he excused N. J. N. J. wanted to be removed for hardship because she had an evening class, which required her to take public transportation. Even after the court refused to grant her request, she explained that she did not think she could give 100 percent to this case because she would be late for class and her grade would be affected. This factor alone, which could indicate a difficulty or inability to focus on the evidence, could serve as a valid race-neutral reason to excuse N.J. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1124.) N. J. also stated she had been a rape victim and that would “[s]omewhat” “enter into [her] ability to be fair in this case if [she] ha[d] to listen to victim testimony,” although she should be “be okay” because this case did not involve rape. The prosecutor did not have to accept N. J.’s assurances that she could set aside her feelings about the rape (People v. Jordan (2006) 146 Cal.App.4th 232, 257), and this factor alone also could serve as a valid race-neutral reason to excuse N. J. Finally, N. J. was a teacher with Head Start, and the prosecutor could have believed that teachers “tend to be ‘“liberal”’ and ‘“less prosecution oriented.”’” (People v. Adanandus (2007) 157 Cal.App.4th 496, 507.) Once again, this factor alone could serve as a valid race-neutral reason to excuse N. J.
In sum, “[e]ach of these reasons, individually or in the aggregate, could serve to justify the peremptory challenge of” N. J. (People v. Gutierrez, supra, 28 Cal.4th at p. 1124), despite defendants’ argument that a prima facie case had been shown. We therefore conclude that defendants fail to meet the reasonable inference standard.
Defendants’ argument that a prima facie case was shown is based on N. J.’s status as an African-American, her assurances that she could be a fair juror, her “appropriate” demeanor and attire, her lack of an imprisoned relative, the prosecutor’s refusal to explain why he excused her, and the fact that “peremptory challenges constitute a jury selection practice that may be used to discriminate.”
Furthermore, contrary to defendants’ claim, defendants did not re raise their objection to the prosecutor’s excusal of N. J., “requir[ing] the prosecutor to explain why he struck [N. J.] from the panel.” The portion of the transcript to which defendants points is Brown’s attorney’s statement that his objection to the peremptory challenge of T. C. “is kind of an extension of [his] objection on [N. J.] who was excused earlier . . . .” This in no way was a re raising of the objection to the prosecutor’s peremptory challenge of N. J.
Perhaps anticipating this result, defendants make an ineffective assistance of counsel argument. However, defendants cannot show deficient performance--the first prong of an ineffective assistance of counsel argument (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693])--because, as we have just discussed, the record does not support an inference of discrimination.
Since we have resolved the issue of the excusal of N. J. adverse to defendants based on the first prong of a Wheeler/Batson inquiry and lack of ineffective assistance of counsel, we decline defendants’ request that we “reconsider the juror-specific approach to step two of the Batson inquiry . . . .”
F
There Was No Wheeler/Batson Error As To Prospective Juror T. C.
Defendants contend the court erred in denying their Wheeler/Batson motions as to T. C. because “[a] reasoned evaluation of the prosecutor’s stated excuses for striking [T. C.] from the jury supports a finding that the excuses were pretexts designed to disguise discrimination.” We disagree.
On appeal, “we review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges ‘with great restraint. The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried.’” (People v. Ervin (2000) 22 Cal.4th 48, 74-75.) “[I]f the trial court makes a ‘“‘sincere and reasoned effort’”’ to evaluate the nondiscriminatory justifications the prosecutor offers, the court’s conclusions are entitled to deference on appeal if supported by substantial evidence.” (Id. at p. 76.)
Here, the prosecutor’s four reasons for excusing T. C. were genuine, reasonably specific, and race-neutral. Those reasons were as follows: (1) T. C. was unemployed; (2) he “ha[d] a theft”; (3) he quit his football team; and (4) he mentioned that he had a nephew who worked at “CYA” and a sister-in-law who worked for a judge only after the parties had finished questioning prospective jurors, but he could not provide details of their employment.
As to the first reason, unemployment is a proper criterion for exercising a peremptory challenge because it suggests a person who has little stake in the community. (U.S. v. Gibson (8th Cir. 1997) 105 F.3d 1229, 1232, fn. 2; Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1106.) Defendants question whether unemployment was a pretext, noting that despite the prosecutor’s statement that he “just d[id] not keep unemployed people on [his] juries,” he did not strike another prospective juror, D. C., who was “presently unemployed.” However, comparing D. C. to T. C., they were not similarly situated, and it is reasonable that the prosecutor declined to strike D. C. despite his unemployment. D. C. could have been viewed as a favorable prosecution juror because he had been stalked, harassed, and targeted by gangs for money during his past job as a newspaper delivery man and had been the victim of an attempted theft. Therefore, “a side-by-side comparison of the prospective jurors in question reveals that they were not ‘similarly situated.’” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1020, quoting Miller-El, supra, 545 U.S. at p. 247 [162 L.Ed.2d at p. 218].)
Defendants also draw a comparison to two seated jurors whom defendants claim were also “unemployed.” Those jurors listed their occupations as “retired” and “homemaker.” As the People note, being unemployed is different than being retired or a homemaker.
We note that defendants exercised a peremptory challenge against D. C.
As to the second reason, T. C.’s involvement in a theft that necessitated an attorney’s involvement, albeit 30 years ago, could also be a proper criterion for exercising a peremptory challenge. Defendants contend that this reason was pretextual because two seated jurors had arrests for drunk driving. The prosecutor could reasonably believe that drunk driving involved a different level of culpability, especially since drunk driving does not per se establish moral turpitude (In re Kelley (1990) 52 Cal.3d 487, 494) whereas crimes such as theft “necessarily involve[] moral turpitude because [they] reflect[] on a [person’s] dishonesty” (People v. Hunt (1985) 169 Cal.App.3d 668, 675). Again, a side-by-side comparison of T. C. with these two jurors reveal they were not similarly situated.
As to the third reason, the prosecutor could reasonably believe that someone who quit his college football team was not a desirable juror because, as the People note, “one who has a trait for quitting may give up on jury deliberations . . . .” It matters not whether the prosecutor’s hunch that this was an undesirable trait was correct as long it was not based on group bias. (People v. Cornwell (2005) 37 Cal.4th 50, 70.) Here, it was not.
As to the fourth reason, the prosecutor could reasonably believe that someone who forgot to reveal relevant information at voir dire and who could not remember details about that information was not a desirable juror because he might not be able to remember relevant testimony. Again, the prosecutor could act on this hunch as long as it was not based on group bias, which it was not.
In conclusion, these four factors were reasonably specific and race-neutral justifications for excusing T. C. and were supported by the record. There is nothing to show that the trial court failed to make a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, and we therefore defer to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Avila, supra, 38 Cal.4th at p. 541.) Because the substantial evidence we have just recounted supports the trial court’s implied finding that the prosecutor’s race-neutral explanation was genuine and not a pretext for racial or improper group discrimination, the trial court properly denied defendants’ challenge to the prosecutor’s use of a peremptory challenge against T. C.
III
The Trial Court Did Not Err In Admitting Evidence Of Two Prior Uncharged Robberies
Defendants contend the trial court erred in admitting evidence of two uncharged robberies because that evidence was unreliable and uncorroborated, and the error violated their right to due process. We disagree.
The evidence that defendants challenge relates only to the robberies in which Boushack was the getaway driver and Felicia was the prostitute lure.
At the hearing to decide the admissibility of this evidence, Boushack testified that she participated in two robberies with defendants in which she was the getaway driver and Felicia was the prostitute lure. Boushack did not know Felicia’s last name or her address, but she thought Felicia was about 20 or 21 years old.
During one robbery that occurred around 1:30 a.m., Boushack drove Felicia to a spot where she could pick up a “John” and then dropped off defendants at Bruener’s furniture store where they went into some bushes along Assembly Court. Felicia returned to the car “after some time” with an ATM card, and Boushack drove to the Bank of America on Stockton Boulevard and withdrew $40. Boushack then called Brown to tell him that the withdrawal was successful, and Brown told her to come back to Bruener’s to pick up both he and Carter.
During the second robbery, Boushack dropped off Felicia near a McDonald’s on Stockton Boulevard so she could pick up a “John” and then parked by Sunny Slope Apartments, where she and defendants waited in the car for Felicia’s call. Felicia called Brown to let him know she “had picked up one” and they had gone to Assembly Court. Boushack then dropped off defendants at Bruener’s, and she went to a gas station. Fifteen minutes later, Felicia came back to the car with an ATM card. They unsuccessfully tried to use the card at Washington Mutual and when Boushack called Brown to tell him, he told her to throw away the card. She then went to pick up defendants somewhere closer to Washington Mutual.
Over defendants’ objection that Boushack’s testimony was “speculative” and she could not “remember a lot of . . . things,” the court ruled that the evidence of the prior robberies was admissible to show identity, intent, motive, and a common scheme and plan.
Evidence Code section 1101, subdivision (b) allows admission of “evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
Notwithstanding Evidence Code section 1101, subdivision (b), Evidence Code section 352 permits the court in its discretion to exclude any evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” “[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice . . . . [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s “exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Id. at pp. 1124-1125.)
There was no abuse of discretion here. As our Supreme Court has noted, although independently corroborated testimony may have more probative value than uncorroborated testimony, it misstates the law to suggest that the uncorroborated testimony has no probative value. (People v. Ewoldt (1994) 7 Cal.4th 380, 407-408.) Here, its probative value as explained by the trial court was to show identity, intent, motive, and a common scheme and plan. Defendants do not challenge this. Furthermore, contrary to defendants’ argument, Boushack’s testimony did not have “substantial indicia of unreliability” so as to make the court’s exercise of discretion an abuse. While it is true Boushack did not know Felicia’s last name or address, and there were no identified victims, specific dates, or police reports for the two robberies, Boushack was able to describe other details of the robberies, including the locations where she dropped off Felicia and defendants and where she waited for their return, the ATM cards Felicia retrieved from the “Johns,” the banks where Boushack used the ATM cards, the money or lack thereof she procured from the ATM machines, and her conversations with Brown after the robberies.
Furthermore, while defendants make much of Boushank’s role as “an accomplice as a matter of law,” the rule prohibiting a “conviction” based on uncorroborated accomplice testimony or statements (Pen. Code, § 1111) does not apply to testimony about uncharged crimes.
While defendants express concern about the evidence’s admission to “suggest [defendants’] predisposition to engage in robberies” and the motive of Boushack to shift blame to her partners in crime, the jury was instructed: (1) to consider the other-acts evidence only for identity, intent, motive, the victim’s consent or lack thereof, and common plan or scheme; (2) not to conclude from this evidence that defendants have a bad character or are predisposed to commit crime; and (3) to consider, in evaluating a witness’s testimony, factors such as whether the witness had a personal interest in how the case was to be decided and whether she was promised immunity or leniency in exchange for her testimony. On this record, the court did not abuse its discretion in admitting the challenged evidence.
Since we have found no error in the admission of this evidence, we reject defendants’ argument that “the erroneous admission of evidence . . . on state law grounds had the effect of violating [defendants’] right to [d]ue [p]rocess.”
DISPOSITION
The judgments are affirmed.
We concur: BLEASE, Acting P.J., RAYE, J.