Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07906982 Gary R. Orozco, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Defendant, Jonathan Samuel Chaidez, was convicted of kidnapping during the commission of a carjacking in violation of Penal Code section 209.5, subdivision (a). In addition, it was found that he personally used a knife during the commission of the offense. He appeals claiming the trial court erred when it failed to find a prima facie case of ethnic discrimination during jury selection and denied his Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79, 106). He also argues that prejudicial testimony was erroneously admitted and he was denied the effective assistance of counsel. We affirm the judgment.
FACTS
On September 4, 2007, C. Salcido drove his father’s red truck to a pizza parlor to pick up a pizza. He parked the truck, went inside the restaurant, and returned to the truck. After he got in the truck defendant prevented him from closing the door. Defendant held a knife and told Salcido to move to the middle of the front seat. Defendant got in the driver’s seat of the truck and Kevin Fernandez got in the passenger seat. Salcido was told to be calm and to look straight ahead.
Defendant was tried with codefendant, Kevin Christopher Fernandez. Fernandez’s appeal is separate. (F058462.)
The defendant drove to a bank where he asked Salcido for his debit card and his personal identification number. The defendant pulled up to the drive-thru automated teller machine (ATM), withdrew $40 and drove away.
Defendant drove to an apartment complex and parked the truck. Defendant went inside the complex and Fernandez stayed with Salcido in the truck. Defendant returned with duct tape. Salcido’s hands were bound behind his back and tape was placed over his eyes. He was told to get in the back seat. Defendant and Fernandez drove around for approximately 20 minutes with Salcido in the back seat. Fernandez said they should cut Salcido. Defendant said no because Salcido was cooperating. Salcido was told they were going to let him out of the truck. They told him to get out and run. Salcido got out and ran. He ran into a fence, got up and kept running. After hitting more objects, Salcido took the duct tape off of his hands and eyes. He was in a dark field. He walked back to the street and started to walk home. He became lost and was struck by a car and injured.
At the hospital Salcido described the passenger (Fernandez) as the smaller of his two assailants, and said he was about five feet nine inches tall and weighed 180 pounds. He said the driver (defendant) was larger than the passenger and was about 5 feet 10 inches tall weighing 200 pounds. Salcido described the driver as an Hispanic male, wearing a red shirt, red hat, and black gloves. Salcido noticed the tattoo on defendant’s right arm. He described the tattoo as having a “tribal” design.
Salcido was shown two photographic lineups. Defendant’s picture was included in the first lineup in the number three position. After viewing this lineup Salcido told the officer that numbers one, two, and three looked familiar. The second photographic lineup contained the picture of Fernandez in the number two position. Salcido identified Fernandez as the passenger and said he was “pretty sure” of his identification.
Officers found a receipt at the bank reflecting the withdrawal. The receipt was dated September 4, 2007, and the time was 9:59 p.m. Based on the time and bank location, officers were able to obtain photographs taken at the bank where the money was withdrawn from the ATM machine. The photographs showed three people sitting in the front seat of a truck. They showed the male driver reaching out of the truck. A tattoo on the driver’s left arm spelled out the word “dogs.” The photographs also showed that the driver was wearing a Bulldog hat.
The next day, September 5, 2007, in the early afternoon officers pulled over the red truck carjacked from Salcido the night before. Fernandez was driving the truck with two passengers, Arlene Herrera and her brother Tommy. Fernandez had items belonging to Salcido in his pocket, and defendant is the father of Herrera’s two children.
Herrera was questioned after the traffic stop. She told the questioning officer more than one version of how she ended up in Salcido’s truck. In each version she was picked up by defendant and Fernandez earlier that morning and in each version they returned to defendant’s apartment where he was arrested on an unrelated matter. After defendant was arrested, Fernandez agreed to drive her to an appointment. During the drive they were stopped by police. Herrera testified at trial that she had no relationship with defendant except that he was the father of her children. She sees him “sometimes.” At trial Herrera could not recall the content of her earlier statements to the police.
A parole search was conducted at Herrera’s home. Based on information obtained during the search, officers met with defendant. At the time of his arrest, earlier that morning, defendant was wearing a red baseball hat with a Bulldog logo and was carrying a red shirt. His attire matched that described by Salcido, and his attire and left arm tattooing matched the images captured at the ATM.
Defendant’s girlfriend, Racheal Chavez, was living in an apartment with defendant in September 2007. She testified at trial that defendant was home with her until 11:00 p.m. on September 4, 2007. She had called the police earlier because she wanted defendant out of her house and thought he was having a relationship with Herrera. That testimony differed from the statement she gave to the police. When she was questioned by the police, she told them that she went to bed between 9:00 p.m. and 10:00 p.m. and woke up at 4:00 a.m. When she woke up defendant was gone and he had taken her car. She called Herrera at 5:00 a.m. and asked her to get a message to defendant that she needed her car. Defendant showed up at her apartment with her car 15 minutes later. Herrera was with him.
Officers searched defendant’s apartment and found ammunition. Defendant was acquitted of the illegal possession of ammunition.
Corrine Bedarte testified that she rented a room to Fernandez beginning in July 2007. Defendant “hung out” with Fernandez several times while Fernandez was staying at her home.
Although Salcido could not identify Fernandez at trial, he testified that Fernandez was similar in size to the passenger. Salcido was also unable to identify defendant at trial, but said that he was similar in size to the driver. On cross-examination it was established that defendant was less than five feet eight inches tall. A police officer testified that Fernandez was five feet four inches or five feet five inches tall and weighed about 120 pounds.
DEFENSE
Pedro Zepeda testified that he had a tattoo on his arm similar to the tattoo on the arm of the driver photographed at the ATM machine. He got the tattoo in 2005.
On cross-examination Zepeda said he knows defendant and was housed with him in jail. Zepeda said he used to be a gang member, but he is not any longer. He was aware that defendant was a gang member.
On redirect examination Zepeda was asked if he had seen others with Bulldog tattoos above the left elbow. He said he had seen numerous Bulldog tattoos and knew at least three people with the same tattoo as his in the same place. The three were himself, defendant, and Armando Martinez. Both Zepeda and Martinez were incarcerated on September 4, 2007.
I. Wheeler/Batson Motion
A Wheeler/Batson motion involves three distinct steps. “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, fn. omitted.)
During selection of the jury the prosecutor exercised his first peremptory challenge against a female Hispanic, M.V. During questioning by defendant’s counsel the prospective jurors were asked if they had any family members or friends that involved themselves in the gang lifestyle. M.V. responded to this question and when asked if there was anything about that which would make her feel uncomfortable sitting on this case, she replied, “Uhm -- I have my opinions, but I don’t want to say it outloud, I think it’s -- I mean, everybody is the way they are, but they are the way they are for a reason, and I can’t judge somebody for being in a gang or anything like that.”
The People’s second challenge was to a Caucasian male, P.M. During voir dire P.M. stated that he had been arrested years ago for resisting arrest in this county and he did not believe he had been treated fairly.
The prosecutor’s third challenge was to a female Hispanic, A.C. During voir dire A.C. said that her spouse had been arrested in this county over two years ago when he was in an argument. When he was searched a pocket knife was found. He was charged with “that” and placed on probation for three years. She said she was not present during the incident. When asked by the court if she felt he was treated fairly, or did she have feelings related to the incident, she responded, “Well, he plead guilty to it so --.” She then said, “Uhm -- I believe everything was dealt correctly.” She said it would not affect her ability to be fair in this case.
After the prosecutor challenged A.C., defendant made a Wheeler/Batson motion. He claimed the prosecutor was systematically excluding Hispanics and he was concerned because his client is Hispanic. Defense counsel represented that there was nothing in the background of the two excused Hispanic prospective jurors that would jump out as a reason to exclude them. The court noted that A.C.’s husband had been arrested two years earlier.
Fernandez joined in the motion made by defendant and stated that the excluded jurors were not simply Hispanic, but young Hispanic females, and it appeared there was a deliberate attempt to exclude that class of individuals from the jury.
The court stated it was not yet making a ruling as to whether a prima facie case had been shown and asked the prosecutor if he would care to share with the court his reasons for those excusals. The court noted that the balance of the panel in the audience contained four or five Hispanic surnamed persons.
The prosecutor explained that he had excused three jurors thus far, including a white male, and the reason for the excusals was the same. The prosecutor believed that all three of the excused prospective jurors might have a possible bias against law enforcement. M.V. made a statement during voir dire that she would not judge anyone for being in a gang and that indicated to the prosecutor that she might be lenient towards gangs. He excused A.C. because she said her husband had been arrested while in possession of a knife and while she said she would not hold that against the police, the prosecutor thought there could be a bias. The prosecutor stated that he did not excuse anyone based on race.
The court denied the motion finding that a prima facie case had not been made.
Defendant contends he established a prima facie case of discriminatory purpose.
In determining whether a prima facie case has been established, “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California, supra, 545 U.S. at p. 170.) “Though not strictly required, it is the better practice for the trial court to have the prosecution put on the record its race-neutral explanation for any contested peremptory challenge, even when the trial court may ultimately conclude no prima facie case has been made out. This may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established.” (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13.)
“In deciding whether a prima facie case was stated, we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: ‘[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’” (People v. Bonilla, supra, 41 Cal.4th at p. 342.)
A pattern of discrimination is “difficult to discern when the number of challenges is extremely small.” (People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 12.) Only three peremptory challenges had been made at the time defendant brought his motion. Two of the three challenges were to Hispanic prospective jurors. Although the prosecutor struck two Hispanic jurors, the court noted that four or five Hispanic surnamed jurors remained. Thus, the prosecutor did not strike most or all of the members of the identified group from the venire. In addition, the three prospective jurors who were peremptorily challenged by the prosecutor, including P.M., gave answers during voir dire that might indicate a bias against law enforcement. Two of the challenged prospective jurors, thus, shared more than the one characteristic that they were Hispanic females. Although the prosecutor did not ask A.C. any individualized questions, the prosecutor did not ask further questions of some of the other prospective jurors except for questions directed at the group as a whole. Also, if the prosecutor had already determined that he did not want A.C. to serve on the jury because her husband had been recently arrested by the same police department involved in the current case, then there would be no reason for him to ask further questions. The prosecutor asked questions of M.V. The questioning by the prosecutor does not show bias. Although both defendants are Hispanic, and two of the challenged prospective jurors are Hispanic, the alleged victim is also Hispanic. Thus, it does not appear that the prosecutor was discriminating against the defendants in order to have a jury comprised of individuals associated with the victim’s heritage.
In addition, the information elicited in voir dire showed race-neutral reasons for peremptorily challenging the prospective jurors. A.C.’s husband had been arrested by the same police department and prosecuted by the same district attorney’s office involved in the current case. His arrest and prosecution occurred only two years previously and he was still on probation for this offense. These factors could indicate a bias against the police department, even if A.C. stated there was no bias. M.V.’s responses to the gang-related questions posed to her clearly indicated the potential for a bias against law enforcement and leniency toward those involved in a gang lifestyle. From all of these factors we conclude the evidence was sufficient to support the trial court’s finding that defendant did not meet his burden of establishing a prima facie case of group discrimination.
Defendant requests that we utilize comparative juror analysis in determining if a prima facie case was established. In his reply brief defendant contends that comparative analysis is not foreclosed under California law in a first-phase challenge where the prosecutor has volunteered reasons for the challenge. He goes on to note that if California law forecloses comparative juror analysis, the failure to conduct such an analysis violates the United States Constitution and United States Supreme Court precedent.
In People v. Howard (2008) 42 Cal.4th 1000, 1019 our Supreme Court declined to engage in comparative juror analysis in a first-stage Wheeler/Batson case finding such analysis has “‘little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales.’” (Howard, supra, at p. 1020.)
The Howard court went on to expressly reject the argument now made by defendant. “We have encouraged trial courts to ask prosecutors to give explanations for contested peremptory challenges, even in the absence of a prima facie showing. [Citation.] We emphasize that if a court ultimately concludes that a prima facie showing has not been made, the request for and provision of explanations does not convert a first-stage Wheeler/Batson case into a third-stage case.” (People v. Howard, supra, 42 Cal.4th at p. 1020.)
The issue of comparative analysis in the first stage of a Wheeler/Batson case has been determined by our California Supreme Court. We are bound by those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II. Evidence Regarding Accuracy of Height and Weight Estimations
Fresno police officer, Richard Nadeau, stopped the stolen truck. On cross-examination by counsel for Fernandez, he was asked to estimate Fernandez’s height at the time of the traffic stop. He stated that Fernandez was probably about five feet four inches or five feet five inches tall and weighed 120 or 130 pounds.
On redirect examination the prosecutor asked Nadeau if civilian witnesses are oftentimes wrong when they estimate a suspect’s height and weight. Counsel for Fernandez objected stating the question was argumentative, speculative, and lacked foundation. The court sustained the objection instructing counsel to rephrase the question. The prosecutor then questioned Nadeau on how many statements he had taken from witnesses over the course of his 19-year law enforcement career and asked if he often asked witnesses for height and weight information. Nadeau said he frequently asked those types of questions and had taken thousands of statements. The district attorney again asked if civilian witnesses are oftentimes wrong in their estimations of height and weight.
Objections were posed by counsel for Fernandez and counsel for defendant on the grounds of relevance, lack of foundation, speculation, argumentative, invading the province of the jury, improper hypothetical and vouching. The court sustained the objection as far as the form of the question. After several failed attempts to properly rephrase the question the court interceded and asked, “Officer, just in those comparisons... what are the results of those comparisons?” The officer replied, “Oftentimes they are incorrect. A lot of times you’ll have several witnesses [give] several different height and weights on the same suspect.” The court noted the same objections previously made were applicable to its question and overruled the objections.
On cross-examination defense counsel asked, “So Officer, based upon your lengthy experience, then, is it accurate of me to say that you can’t depend or rely on the -- often can’t depend or rely on the descriptions of suspects given by victims or alleged victims?” The officer replied, “They are oftentimes off somewhat.” The officer agreed that eyewitness identification is sometimes wrong.
Defendant contends this evidence was irrelevant and was improperly admitted at trial. He argues that the error resulted in a miscarriage of justice because identity was the crucial issue. It is claimed that the significant height disparity between what Salcido described and defendant’s actual height sufficed to raise a reasonable doubt. The testimony undermined a reasonable doubt and resulted in a miscarriage of justice.
“It is... well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. [Citations.] ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence, ” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (People v. Richardson (2008) 43 Cal.4th 959, 1001.)
Assuming for the sake of argument that it was error to admit the evidence, the admission of the evidence did not result in a miscarriage of justice. The evidence was very brief and did not have great detrimental value. In fact, defense counsel built upon the evidence in having the officer testify that descriptions of suspects given by victims are often “off somewhat.”
Salcido’s opportunity to estimate the height and weight of his assailants was limited. He was already in the truck when he was ordered to move to the middle seat. When he exited the truck his eyes were covered with duct tape, thus, he never had the opportunity to stand next to his assailants or to see his assailants standing in order to estimate their height. He did not have the opportunity to estimate their weight and height because he was told to look forward before his eyes were covered.
The jury was instructed that “[p]eople sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.” Thus, the jury was well aware that eyewitness accounts are subject to error.
Also, the jury had the opportunity to view the pictures taken at the ATM to make their own assessment of the height and weight of the assailants in comparison to Salcido who was pictured sitting between defendant and Fernandez.
More important is that the evidence of defendant’s guilt was very strong. Salcido picked defendant’s picture as one of three in the photographic lineup that he thought looked like the driver. Defendant’s clothing at the time of his arrest matched the description by Salcido and the images captured at the ATM. Defendant’s tattoo matched the tattoo on the arm of the driver as seen on the pictures taken at the ATM. In addition to the “dogs” portion of the tattoo, the juxtaposition of the word “dogs” with the other tattooing on defendant’s arm made the identification of defendant more compelling. The mother of defendant’s children, Herrera, was in the truck when it was stopped less than 24 hours after the carjacking. The driver of the truck was Fernandez, a friend of defendant’s. In the statement made by Herrera after she was arrested, she said defendant came to her house driving the truck the morning of September 5, 2007.
It is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the alleged error.
III. Ineffective Assistance of Counsel
Although the court bifurcated the gang allegations from the main trial, the trial court repeatedly said that gang evidence might come in during the main trial. Over the course of the trial, defense counsel sought vigorously to admit testimony and or pictures of Zepeda and Martinez to show that they had “dog” tattoos identical to defendant’s and in the same location as defendant’s tattoo and the tattoo seen on the ATM photograph.
The court told defense counsel that if Zepeda testified regarding his tattoo the People would be able to cross-examine him on his gang affiliation and his relationship to defendant because that would be relevant to any bias on the part of Zepeda. Defense counsel agreed that the People could cross-examine on the issue. Defense counsel sought to show a testifying officer a picture of the “dog” tattoo on Zepeda’s arm during cross-examination in order to elicit that the picture was not of defendant’s tattoo.
On cross-examination defense counsel asked the officer questions about matching up the tattoo from the picture of defendant with the tattoo shown in the ATM photograph. The officer said in his report that the tattoos matched. Defense counsel then showed the officer the picture of the “dog” tattoo on Zepeda’s arm; the officer said it was a “dog” tattoo but the person in the picture was not defendant. The officer was also asked if he showed Herrera a picture of the “dog” tattoo and if he asked her if she recognized the tattoo. The officer testified that he did ask Herrera those questions.
On redirect examination the prosecutor asked the officer if he showed Herrera the ATM photograph showing only the arm of the driver. He said he did and that she said, “that’s him, ” referring to defendant’s tattoo.
As previously set forth, Zepeda testified for the defense, the jury was shown a photograph of his “dog” tattoo, and the prosecutor cross-examined him regarding his gang affiliations and connection to defendant.
Defendant now contends he was denied the effective assistance of counsel because in insisting on bringing in evidence regarding the tattoos of others, his counsel unreasonably opened the door to Herrera’s identification of defendant’s tattoo, to defendant’s gang membership, and to allowing the prosecutor to argue guilt-by-elimination (because Zepeda and Martinez were both incarcerated when the offense occurred).
“To prove an ineffective assistance claim, a defendant must show that (1) ‘counsel’s performance was deficient, ’ and (2) ‘the deficient performance prejudiced the defense.’ [Citation.] A court need not ‘address both components of the inquiry if the defendant makes an insufficient showing on one.’ [Citation.] ‘Defendant bears the burden of proving ineffective assistance of counsel.’ [Citation.]
“When evaluating the adequacy of counsel’s performance, a court asks whether counsel’s assistance was reasonable ‘under prevailing professional norms’ and in light of all circumstances existing at ‘the time of counsel’s conduct.’ [Citation.] Because defense counsel face a ‘variety of circumstances’ and an array of ‘legitimate decisions’ [citation], a court must ‘accord great deference to counsel’s tactical decisions’ [citation] and ‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance...’ [citation].” (People v. Camino (2010) 188 Cal.App.4th 1359, 1377.) “We may reverse on grounds of ineffective assistance of counsel only if the record affirmatively discloses no rational purpose for counsel’s act or omission.” (People v. King (2010) 183 Cal.App.4th 1281, 1299.)
The decision by defense counsel to bring forward evidence regarding tattoos on other individuals was clearly a tactical choice. Defense counsel sought the admission of this evidence from the beginning of trial and after being told of the possible pitfalls by the trial court, continued to insist that he be allowed to present the evidence. By far, the most damaging piece of evidence against defendant was the tattoo on his left arm as shown in the photograph taken while withdrawing money from the ATM. It was a reasonable risk to try to create reasonable doubt whether defendant was the person pictured in the photograph by presenting evidence that other individuals had very similar tattoos.
We cannot fault defense counsel’s method of bringing forward the other similar tattoos. Appellate counsel contends that defense counsel should have brought this evidence forward through a gang expert, such as the one who testified at the second phase of the trial. The gang expert testified that there are approximately 5, 000 Bulldog gang members in Fresno and it would not be unusual for a member to have a Bulldog tattoo. The expert did not testify that many Bulldog gang members have identical tattoos in the same location and might have testified that defendant’s tattoo was somewhat unique. We have no record to determine what the expert might have said. Additionally, the expert may have given testimony that could have been very damaging to defendant regarding the Bulldog gang.
Defendant has failed to demonstrate that he was denied the effective assistance of counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J.KANE, J.