Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1207485, Clifford R. Anderson, Judge
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Alene M. Games, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
William Edward Clifton appeals from the judgment entered following his conviction by a jury of transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) and attempted destruction or concealment of evidence. (Pen. Code, §§ 664, 135.) The jury found true allegations of three prior prison terms (§ 667.5, subd. (b)); a prior conviction of possessing a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (a)); and a prior serious felony conviction within the meaning of California's "Three Strikes" Law. (§§ 667, subds. (b)-(i), 1170. 12.) The jury was unable to reach a verdict on the charge of resisting an executive officer (§ 69), and the trial court declared a mistrial as to that charge. Appellant was sentenced to prison for 13 years.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court erroneously denied his Wheeler-Batson motion challenging the prosecutor's exercise of a peremptory challenge to remove a black juror. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson).) Appellant also contends that the trial court erroneously failed to instruct the jury pursuant to the corpus delicti rule. We affirm.
Facts
On December 3, 2005, Santa Barbara Police Officer Rashun Drayton was working at a DUI (driving under the influence) checkpoint. Appellant, who was driving a vehicle, approached the checkpoint but avoided it by turning into the driveway of a motel. Appellant parked the vehicle in the motel parking lot.
Officer Drayton walked to the parking lot and conversed with appellant, whom he recognized from a previous contact. Drayton asked appellant if he was still on parole, and appellant responded in the affirmative. At Drayton's request, appellant stepped out of the vehicle. Drayton noted that appellant displayed symptoms "of either alcohol or drug use."
Appellant "seemed a bit nervous . . . . He was continually placing his hands in and out of his pockets." Finally, appellant pulled an object out of his pocket and threw it over a hedge "into the adjoining parking lot." Appellant then ran away from Officer Drayton, but he was tackled by another officer, Sergeant McGrew.
After a struggle, Drayton and McGrew subdued appellant and handcuffed him. Drayton retrieved the object that appellant had thrown into the adjoining parking lot. It was "one solid mass piece" of cocaine. The net weight was 11.53 grams.
After appellant was arrested, he made a telephone call from jail to his brother. The call was recorded. During the conversation, appellant referred to the cocaine and said, "You know what[,] I have had it since I've been out, I just wasn't doing it."
Wheeler-Batson Motion
A. Law
"The applicable law is well settled. '[Under Wheeler, ] [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 state Constitution. [Citations.] [Under Batson, ] [s]uch a practice also violates the defendant's right to equal protection under the Fourteenth Amendment. [Citations.] [¶] 'The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions 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.' [Citation.]" ' [Citations.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1104.)
Wheeler was disapproved on another ground in Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129].
" ' "When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court's ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question." ' [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 900.)
B. Voir Dire
The Wheeler-Batson motion concerned the prosecutor's peremptory challenge of a black juror, Mr. M. During voir dire, Mr. M. said that, "[i]f all 12 jurors had [his] mind[-]set," he was "not sure" whether both sides would "be able to get a fair trial." Later, in response to the prosecutor's question whether he had experienced negative encounters with law enforcement, Mr. M. said: "I've been pulled over a few times. Been harassed by the cops a couple times." In addition, Mr. M. stated that, based on "some of the things [he had] seen in the past," he had "some slightly negative opinion with law enforcement." Although Mr. M. "guessed" that law enforcement officials "overall" were "good guys," he also "guessed" that he had "met a couple of bad ones."
The prosecutor noted that one of the charges against appellant was that he had "resisted an officer by force or violence." The prosecutor asked Mr. M.: "And when you say you've been harassed have you ever felt like not submitting or not being compliant . . . ?" Mr. M. responded, "Yeah." Despite his feelings, Mr. M. indicated that he had not resisted: "I just kept calm, just listened to what they had to say. They didn't like try to use like physical force or anything on me. It was just all verbal. I just kind of took it and they'd leave me alone." Mr. M. assured the prosecutor that the harassment he had experienced would not "have any effect" on his ability to be a fair and impartial juror.
C. Grounds for Motion and Trial Court's Ruling
In arguing that he had made out a prima facie case of group bias, appellant's trial counsel stated as follows: "The facts as I see them are that Mr. [M.] is the only African American in the box at this time. He appears to be one of two African Americans of all the jurors that have come in so far, and . . . [the prosecutor] appeared to ask him questions regarding his experience with police that were different than the other questions in the sense that more of them were asked and there was more probing in that area perhaps to get him to acknowledge that he had some incidents with police in the past. I realize that some of those questions were asked of other jurors. I believe the juror immediately before him who appeared to be an older white lady was asked the same thing. And I think, if anything, it shows that [the prosecutor] is aware of the possibility that he'd be criticized for excusing an African American juror and was trying to deal with [it] preemptively."
The prosecutor responded that appellant had failed to make out a prima facie case of group bias. The prosecutor, nevertheless, set forth her reasons for challenging Mr. M. in the event that an appellate court should later conclude that appellant had made out a prima facie case. The prosecutor acted properly in following this procedure: "Even where the trial court has not found a prima facie case of discrimination, which would require the prosecutor to state reasons for the challenged excusals, it is helpful, for purposes of appellate review, to have the prosecutor's explanation. We therefore encourage court and counsel in all Wheeler/Batson proceedings to make a full record on the issue. . . . [T]he prosecutor's voluntary decision to state reasons in advance of a prima facie ruling does not constitute an admission or concession that a prima facie case exists." (People v. Zambrano, supra, 41 Cal.4th at p. 1105, fn. 3.)
The trial court ruled that appellant had failed to make out a prima facie case of group bias. Furthermore, the trial court concluded that the prosecutor's stated reasons for challenging Mr. M. did not "suggest anything inappropriate in intent."
D. Discussion
"The dispositive question here is whether [appellant] demonstrated a prima facie case of group bias." (People v. Boyette (2002) 29 Cal.4th 381, 422.) In determining whether appellant carried his burden, we need not consider the prosecutor's stated reasons for exercising the peremptory challenge: "[W]hen an appellate court is presented with such a record, and concludes that the trial court properly determined that no prima facie case was made, it need not review the adequacy of counsel's justifications for the peremptory challenges." (People v. Turner (1994) 8 Cal.4th 137, 167, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
We conclude that appellant failed to demonstrate a prima facie case of group bias. " ' "[T]he record suggests grounds upon which the prosecutor might reasonably have challenged the juror[] in question." ' [Citation.]" (People v. Hoyos, supra, 41 Cal.4th at p. 900.) Mr. M. said that he had "[b]een harassed by the cops a couple times," that he had "some slightly negative opinion with law enforcement," and that he was "not sure" whether both sides would receive a fair trial "[i]f all 12 jurors had [his] mind[-]set."
Moreover, Mr. M. stated that, when he had been harassed by law enforcement, he had "felt like not submitting or not being compliant." This comment was significant because one of the charged offenses was resisting an executive officer in violation of section 69. The prosecutor could have reasonably been concerned that a juror who had "felt like not submitting or not being compliant" would sympathize with appellant.
We also observe that appellant's alleged prima facie case was based on the prosecutor's single peremptory challenge of a black juror. The only other black person on the jury panel was a woman who asked to be excused, and who was excused, for cause. "Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, . . . to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.]" (People v. Bell (2007) 40 Cal.4th 582, 597.)
Corpus Delicti Instruction
"The corpus delicti rule requires the prosecution to prove the corpus delicti - i.e., that a crime actually occurred - by evidence other than the defendant's own out-of-court statements. [Citation.] 'The amount of independent proof of a crime required for this purpose is quite small [and has been] described . . . as "slight" [citation] or "minimal." ' [Citation.]" (People v. Herrera (2006) 136 Cal.App.4th 1191, 1200.) " 'The People need make only a prima facie showing " 'permitting the reasonable inference that a crime was committed.' " [Citation.] The inference need not be "the only, or even the most compelling, one . . . [but need only be] a reasonable one . . . ." [Citation.]' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 827.)
"It is well settled that the trial court has a duty to instruct the jury sua sponte that the corpus delicti of an offense must be proved independently of admissions. [Citation.]" (People v. Lara (1994) 30 Cal.App.4th 658, 674-675.) "Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1181.)
One of the elements of the corpus delicti of transporting cocaine is that the offender had "knowledge of its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746; see also People v. Lopez (1967) 254 Cal.App.2d 185, 190 [corpus delicti of selling narcotics includes knowledge of the narcotic nature of the substance sold].) Appellant argues that the corpus delicti instruction was required to be given sua sponte because of his admission to his brother that he had possessed the cocaine since he had "been out," but he "just wasn't doing it." Appellant's statement could reasonably be construed to mean that he had possessed the cocaine since his release on parole.
The admission, appellant maintains, established "the element of knowing transportation" of the cocaine. Because "independent evidence that appellant knew he was transporting a controlled substance was minimal[,] . . . a reasonable jury could have concluded that nobody knowingly transported a controlled substance and returned a guilty verdict for the lesser offense of simple possession." Therefore, appellant contends, "the instructional error was prejudicial" and the conviction for transporting cocaine "must be reversed."
We disagree. The evidence showed that, during his detention by the police, appellant had removed the cocaine from his pocket and had thrown it away. As a matter of law, it was reasonable to infer from this evidence that, while appellant was driving the vehicle, he had possessed the cocaine and had been aware of its narcotic nature. From appellant's act of throwing the cocaine away, "it could reasonably be inferred that he was attempting to rid himself of incriminating evidence, thus disclosing a consciousness of guilt [citation]." (People v. Young (1961) 197 Cal.App.2d 129, 132.) A prima facie showing of the corpus delicti was established as a matter of law.
Disposition
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.