Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 197438
NEEDHAM, J.
A marijuana dealer and his girlfriend met prospective buyers at an agreed location. Instead of making the purchase, one of the “buyers” entered the dealer’s car, pulled out a gun, shot the dealer and his girlfriend, and stole the marijuana. The dealer was seriously injured but survived; his girlfriend died of her wound. Appellant Chad Dias was tried before a jury and convicted of first degree murder, attempted murder with premeditation and second degree robbery based on his involvement in the robbery and shooting. (See Pen. Code, §§ 187, 664, subd. (a), 211, 212.5, subd. (c.))
Further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends: (1) The prosecutor committed error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) by excusing prospective jurors on racial grounds; (2) the court erred by instructing the jury on aiding and abetting as a theory of guilt; (3) the introduction of an aiding and abetting theory violated his right to due process, as the prosecution had previously taken the position that appellant was the shooter and was liable as a direct perpetrator; (4) defense counsel was ineffective in failing to present evidence that the prosecutor had previously argued a different version of the facts; and (5) the record on appeal should be augmented to include the transcripts from the trial of a codefendant who was acquitted and from appellant’s first trial, in which a mistrial was declared. We reject his claims and affirm the judgment.
We have summarily denied by separate order appellant’s related petition for writ of habeas corpus in case number A130989.
FACTUAL AND PROCEDURAL HISTORY
George Tang was a marijuana dealer in San Francisco who typically sold his product out of his car at prearranged locations around the Sunset district. He was sometimes accompanied by his girlfriend, Christine Chan, although she was not personally involved in making the sales.
Tang met Michael Bonds, who he knew as “Bons, ” in 2004, and began supplying him with marijuana. Bonds lived with Quentin Lewis in the Hayes Valley area of San Francisco. Richard Lewis, who was Quentin’s brother and appellant’s codefendant in this case, ostensibly lived at the same address but frequently stayed with appellant, who lived in the city of Richmond. Appellant’s street name was “Gutter.”
In February 2005, Richard Lewis asked Bonds about buying a pound of marijuana, and Bonds made arrangements with Tang to do so. Bonds, Lewis and appellant met up at a gathering in Richmond, where appellant told Bonds that he wanted to personally do the deal and would go with him. Richard Lewis stayed behind while Bonds and appellant drove to San Francisco and met another friend of Bonds’s, who was also buying marijuana from Tang.
Bonds used appellant’s cell phone to call Tang and arranged to meet at 41st Avenue and Wawona in the Sunset District. Tang was surprised to receive a call from Bonds on a phone with a 510 area code and Bonds explained he was using a phone that belonged to his friend “Gutter.” When Tang arrived at the designated location, he called this number and spoke to Bonds. It was about 7:00 in the evening and it was already dark outside.
Appellant walked over to Tang’s car and got in the back seat behind Chan, who had accompanied Tang. Tang looked over his shoulder, glanced at appellant (whom he understood to be “Gutter”) and told him the marijuana was in a bag on the floor behind the driver’s seat. Appellant picked up the bag, put it in a pack he was carrying, paid Tang, and left.
During the next few weeks, Tang exchanged several phone calls with the 510 area code number he had stored in his cell phone during the deal involving appellant and Bonds. Tang always spoke to the same person—whom Tang assumed to be Gutter (appellant)—and the calls concerned the purchase of more marijuana. The person on the phone mentioned at some point that he lived in Richmond.
On March 1, 2005, Tang received a call from the 510 phone at about 11:00 in the morning and was asked about purchasing two pounds of marijuana, which Tang agreed to sell for a price of $8,200. The voice on the phone was the one Tang associated with Gutter. The two men exchanged calls throughout the day and ultimately agreed to meet at 7:00 p.m. in the parking lot behind a restaurant at 20th Avenue and Irving Street in the Sunset district.
Tang drove with Chan to the designated meeting place at about 7:30 p.m. and called the 510 number. A voice that Tang ultimately identified as Richard Lewis’s answered and said he was concerned that there were too many people in the parking lot. Tang suggested meeting at 18th Avenue and Noriega Street instead, and the caller agreed. When Tang arrived at 18th Avenue and Noriega, he called the 510 number and the person who answered told Tang he was parked behind him.
At the combined preliminary hearing of appellant and Lewis, Tang heard the two of them speaking and recognized the voice of Richard Lewis as the one he had heard over the phone when calling from the restaurant parking lot.
Tang looked in his rearview mirror and saw two people sitting in a car. The driver had “dreads, ” sticking out three or four inches, though Tang could not tell the person’s race or gender. The passenger, who was wearing a hooded jacket and had some kind of “baseball glove” in his hand, got out of the car and into Tang’s car, where he sat in the back seat behind Chan. Tang glanced at him and recognized his eyes as belonging to the man he knew as Gutter. Tang said, “What’s up?” and the man shot him in his left eye. Dazed from his injury, Tang heard Chan say, “Baby, ” followed by two more shots. A neighbor who heard the noise and looked out the window saw a tall man wearing a hooded sweatshirt get out of the passenger side of Tang’s car and run to an awaiting car, which sped away. Tang, who was still conscious but in a state of confusion, opened the rear door and saw that the marijuana was gone.
It was rainy and dark outside.
Tang placed a large amount of cash that he was carrying in the console of the car and tried unsuccessfully to call 911 for help. The police arrived and Tang told one of the officers, “A [B]lack guy shot me.” Tang was transported to the hospital, where he was treated for his gunshot injury but lost his left eye. Chan had also been shot and died at the scene.
Clayton Klein lived in Stockton with his girlfriend and was good friends with Richard Lewis. On the night of the shooting, Lewis called Klein’s home repeatedly to say he was coming over. Klein arrived home from work at about 4:00 a.m. and found Lewis and appellant (whom he had never met before) waiting. The pair had brought a large duffel bag with them that appeared to contain marijuana, and appellant was carrying a handgun in his waistband. Appellant and/or Lewis expressed an interest in watching the Bay Area news and then spent what was left of the night at Klein’s before leaving the following morning.
Meanwhile, Tang was interviewed by police at the hospital where he was being treated. He initially lied about what had happened because he was worried about being arrested, but he acknowledged that the shooting had been committed during a marijuana deal after he learned that Chan had died. He told the police that Gutter, a Black man from Richmond, had been the shooter, and that Gutter’s number was stored on his cell phone under “Bons.” He described the man who had shot him as tall and bald, and indicated he could really only see his eyes.
Police traced the cell phone number that Tang provided for Gutter and determined that it belonged to appellant, an African-American man who lived in the city of Richmond and owned a silver Chevrolet Nova. They prepared a photographic lineup that included a picture of appellant. Tang said he was “not so sure” appellant’s photograph was Gutter, but that it looked like him based on the eyes, although the hair was different. Tang did not think he could make an identification during a live lineup. The police showed Tang a different photographic lineup containing a picture of Richard Lewis. Tang thought that Lewis’s eyes were similar to those of the person who shot him, though his hair was longer than the shooter’s. He later identified Lewis as having hair similar to the driver of the car in which the shooter fled.
Appellant, who is over six feet tall, was arrested at his home in Richmond, where officers seized his cell phone, a batting glove, a nine-millimeter bullet, and a black jacket. Appellant’s hair appeared to have been recently braided. Richard Lewis was arrested with his friend Montae Howard several days after the shooting while they were meeting with appellant’s mother. Lewis was 5’8” tall and weighed about 180 pounds and Howard was 5’8” tall and weighed about 165 pounds; both had long braids.
Appellant was interviewed by the police after being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436. He acknowledged that the 510 area code phone belonged to him and that he had not loaned it to anyone. He said he had called Tang on March 1, 2005 to purchase a small amount of marijuana and had exchanged several calls with him during the day, but at about 6:00 that evening told Tang that he was too tired to go through with the deal. Appellant said he fell asleep at his house but awoke later that night and drove to Stockton to hang out with Clayton Klein. The officers had not provided appellant with any details regarding the crime they were investigating, but when they told him Tang had been shot he volunteered, “And I was the last person to talk to him.” Appellant denied owning a gun, but told police he had one in the past and had used it to shoot a neighbor’s television set several months before.
Police tracked down the neighbor whose television appellant had shot and recovered bullet fragments from inside the damaged set. A firearms expert who examined the fragments and compared them to those recovered at the crime scene concluded that it was more likely than not that the same gun was used to shoot the television set and to shoot Tang and Chan.
The cell phone records of Tang, appellant, and Richard Lewis showed the general location of those phones on the date of the shooting, based on the cell towers that serviced each call. The records show that appellant and Lewis had driven from Richmond to San Francisco, to an area that would have included the restaurant at 20th Avenue and Irving Street, at about 7:30 p.m.. When a call was made between appellant’s phone and Tang’s at 7:34 p.m., both were using the same cell tower in the Sunset district. Five minutes later, Tang’s phone made an unsuccessful call to 911. In the hours after the shooting, appellant’s and Lewis’s phone records show travel to Richmond and then to Stockton, where they remained until late morning the following day.
Appellant and Richard Lewis were jointly charged by information with the murder of Chan and the attempted murder and robbery of Tang. (§§ 187, 187/664, 211, 212.5.) As to appellant only, the information alleged a felony-murder special circumstance (murder during the commission of a robbery) and enhancements for personal use of a firearm and personally using and discharging a firearm causing death or great bodily injury. (§§ 190.2, subd. (a)(17)(A), 12022.5, subd. (a), 12022.53, subds. (c), (d) & (e).) The cases were severed and Lewis was acquitted of all charges following a jury trial. Appellant was separately tried and a mistrial was declared after the jury was unable to reach a unanimous verdict.
During Lewis’s trial and appellant’s first trial, the prosecution had taken the position that appellant and Lewis had planned the robbery together, that appellant was the person who shot Chan and Tang, and that Lewis drove the getaway car. In appellant’s first trial, the court had refused a prosecution request for jury instructions on aiding and abetting as an alternative basis of liability, on the ground that such a theory was factually inconsistent with the position taken to date and that allowing such instructions would deprive the defense of adequate notice.
In anticipation of appellant’s retrial on the same charges following the mistrial, the prosecutor filed a motion seeking leave to proceed on the alternative theory that he was guilty of murder under the felony-murder rule if the jury could not determine whether he was the shooter but found that he aided and abetted the underlying robbery. The prosecutor emphasized during argument on the motion that he still intended to argue that appellant was the shooter; nonetheless, the evidence showed that appellant had arranged to purchase the marijuana from Tang and was in the Sunset district at the time of the shooting, and the jury should not be tethered to the “shooter” theory in the event it had a reasonable doubt regarding appellant’s exact role in the crime. The trial court ruled that it would allow the prosecution to proceed on aiding and abetting as an alternative theory, given that the defense now had adequate notice that the argument would be presented.
The case proceeded to trial before a jury for the second time, with appellant’s primary defense being that Tang’s identification was not reliable and that other persons associated with Michael Bonds and his group, specifically, Montae Howard and Richard Lewis’s brother Quentin Lewis, might have been involved instead. Quentin Lewis (who was bald, as Tang had described the shooter to police) was employed as a manual street sweeper with the San Francisco Department of Public Works, and though records indicated he was on duty in the Tenderloin district between 12:00 p.m. and 9:00 p.m. on the day of the robbery, he was not directly supervised at all times. Montae Howard’s cell phone was used in an area near the city of El Cerrito (which covered the East Bay area where appellant lived) at about 6:30 p.m. on the day of the shooting, and was then inactive until about 8:30 p.m., when it was again used in the East Bay.
The jury convicted appellant of first degree murder, attempted murder with premeditation, and second degree robbery. (§ 187, 187/664, subd. (a), 211, 212.5.) It found the special circumstance and firearm enhancement allegations not true. The court sentenced appellant to prison for 25 years to life on the murder count plus a consecutive life sentence on the attempted murder count and stayed the sentence for robbery under section 654.
DISCUSSION
1. Batson/Wheeler Motion
As explained in Batson and Wheeler, both the state and federal Constitutions bar peremptory challenges that are based on a juror’s race or membership in a similar cognizable class. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix); Batson, supra, 476 U.S. at p. 97 [violation of equal protection]; Wheeler, supra, 22 Cal.3d at pp. 276-277 [violation of right to jury drawn from representative cross-section of community].) Appellant, who is African-American, argues that the judgment must be reversed because the prosecutor used peremptory challenges to excuse African-American jurors on racial grounds. We disagree.
A. Procedural History
The prosecutor used his peremptory challenges to exclude three of the four jurors on the panel who appeared to be African-American. The first of these was Juror H., a 50-year-old freelance musician who indicated in his written questionnaire that he, along with his girlfriend, had been the victim of a 1999 robbery committed by four men. He explained during voir dire that the police had arrested suspects who he believed to be the robbers, but he had not made an identification. Juror H. stated that he believed the police had the right people, but he would not have been able to identify them in court because he was not 100 percent sure it was them. He elaborated, “[If] I had to go in and testify, I would never do that, because if it’s not completely 100 percent that I’m sure, I’d potentially be putting someone in jail for life.” Juror H. also suggested that several people in the jury pool appeared to be biased against African-Americans, and he expressed concern about the group working together.
The second prospective juror at issue was Juror J., a 31-year-old woman who worked as a medical assistant at a local hospital. In the section of the written questionnaire asking about potential witnesses, Juror J. indicated that the name Montae Howard sounded familiar to her and that she saw a lot of patients at the hospital where she worked. She also reported that her ex-husband had committed acts of domestic violence against her, and that the police who responded were “very kind to [her] and assisted [her] in every way possible.” Asked whether she had contributed time or money to any organization seeking to change the criminal laws, she reported that a friend of hers who was bipolar had been shot by the police and she had gone to a meeting to support his mother. In response to a question about whether she would automatically believe or disbelieve the testimony of a witness who had been criminally involved in the events of this case, she wrote that she had seen an episode of the television show “48 Hours” in which the victim’s missing cell phone was called and answered by a person who provided valuable information that helped solve the case.
When questioned during voir dire, Juror J. stated that she could not link the name Montae Howard with a face or with other information, but that it did seem familiar to her. She agreed that she would let the court know if she recognized someone who came into the courtroom. Juror J. said she did not have any bad feelings about the criminal justice system as a result of the domestic violence case, which was not prosecuted. Asked about her friend who had been shot by the police, she explained that he had failed to take his medication and became irate in a movie theatre when he was not allowed to smoke. The police arrived and asked for his identification; they shot him because they thought he was reaching for a weapon when in fact he was reaching for his wallet. Juror J. acknowledged that there were two sides to every story but she had been very upset about her friend’s death and had attended a meeting about the incident.
The prosecutor initially challenged Juror J. for cause based on his concern that she might know Montae Howard. The court denied the challenge as too speculative, but indicated that it would check with Juror J. if Howard testified to see whether she recognized him. The prosecutor exercised his second peremptory challenge against Juror H. and his tenth peremptory challenge against Juror J. Defense counsel objected under Batson/Wheeler, arguing that there was no reason for the prosecutor to have excused these jurors other than their race. The court found that a prima facie case of discrimination had been made and asked the prosecutor to explain his reasons for striking the jurors.
The prosecutor first addressed Juror J. and explained that his main reason for removing her was her possible knowledge of Montae Howard. He noted that he had initially asked that she be removed for cause, and pointed out that other jurors who knew a witness had been excused. The prosecutor gave as additional reasons: (1) Juror J. was from Pinole, where some of appellant’s family lived, and she might have sympathy for them as a result; (2) she had attended a meeting about a friend who was shot by the police, which raised concerns about her views of the police;; (3) she had seen a television news show involving a cell phone taken from a crime victim, and one of the potential issues in this case was whether appellant had always possessed his cell phone; (4) when asked in her questionnaire whether she would automatically believe or disbelieve a witness who had been granted immunity, she said it would “depend[] on the witness credibility, testimony, and involvement. (Maybe not the actual shooter?), ” raising concerns about how she might evaluate out-of-court statements by Richard Lewis (whom the defendant might suggest was the shooter); and (5) she was soft spoken in her responses to questions.
The trial court denied the Batson/Wheeler motion regarding Juror J., finding that the prosecutor was motivated by her possible knowledge of Montae Howard, a potentially significant witness. This concern, combined with the information about her friend being shot by police, the program she had watched about the lost cell phone, and, to a lesser extent, her connection with Pinole, “shows me that this was not a misuse of peremptory challenges.” The court later noted that the other circumstances cited by the prosecution would not themselves have supported the challenge, but that Juror J.’s familiarity with the name Montae Howard was sufficient.
Turning to Juror H., the prosecutor explained that he had been very concerned about that juror’s reluctance to identify the men who had robbed him in 1999. The prosecutor noted that Juror H. believed the police had arrested the right people but would not testify unless he was 100 percent sure of their identities. Tang’s identification of appellant as the shooter was going to be a central issue of the trial, and Juror H. was “raising the bar of identification for the [P]eople in terms of what a witness must do, requiring a witness to come into court and testify 100 percent that that’s the person.” The prosecutor also stated that Juror H. appeared to be opinionated and too eager to serve on the jury, having gone out of his way to talk to all of the seated panelists during the break.
The court concluded that the prosecutor’s concern about Juror H.’s standard of certainty for eyewitness identification was an appropriate basis for a challenge in a case where eyewitness identification by the victim would be a major issue. It did not believe the other reasons stated by the prosecutor were justified, but denied the Batson/Wheeler motion based on Juror H.’s views regarding eyewitness identification.
Juror R., who worked for a media firm, was then called into the box. In his written questionnaire he had described negative contacts with the police: “Believe I and an African[-American] friend have been racially profiled and wrongly detained for suspicion of trafficking drugs when we were driving a U-Haul truck from Michigan to New York. The police brought out drug dogs while we were put in the back seat of cop car.... Shall I continue? They lied to me in college as well. And I was detained for ‘illegal solicitation’ again with no charges.” In response to the question whether he would judge the testimony of a law enforcement officer differently from that of other witnesses, he wrote, “I’d always be wondering if they were telling the truth, mainly because the entertainment/media dogma has put so much skepticism into the legitimacy of a police officer’s ethics.” Asked during voir dire about his views of the police, he explained, “[T]hat experience of just blatant, what I feel was blatant racial profiling, other stories from my friends who have been subject to police brutality or unjust accusations, I just have a pretty bad taste in my mouth for law enforcement in general. As long as I am positive they are telling the truth when they are on the stand, that’s fine with me. But, say, something were to come up where the character of the police officer testifying was in question, they had been caught lying in the past or something like that, I’m extremely skeptical about the honesty of the police officer.” He added that police officers were very low on the scale of people he trusted.
The prosecutor used his twelfth peremptory challenge to excuse Juror R. and the defense again made an objection under Batson/Wheeler. The court found a prima facie case had been made and invited the prosecutor to explain his reasons for the challenge. The prosecutor responded that he did not believe Juror R. was an African-American, but appeared to be of Southeast Asian or Malaysian descent. Asked by the court to state his reasons nonetheless, the prosecutor pointed to Juror R.’s negative experiences with the police and the apparent bias he would harbor against police officer witnesses. The prosecutor also noted that when asked in the questionnaire about the believability of a witness who had been granted immunity, Juror R. had written, “Their testimony could be forced. Why would they implicate themselves even with immunity”? The prosecutor pointed out that Tang had been granted immunity from prosecution for drug trafficking in exchange for his testimony.
The court denied the Batson/Wheeler motion, noting that while Juror R.’s views about the police did not give rise to a challenge for cause, they did raise legitimate concerns about whether he could fairly consider the testimony of law enforcement officers.
The jury as finally constituted included one African-American juror.
B. Analysis
A defendant who suspects that a juror has been challenged for a racially discriminatory reason must raise an objection (commonly known as a Batson or Wheeler motion) at which point the trial court will employ a familiar three-step analysis: “First, [it] must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination.” (Lenix, supra, 44 Cal.4th at p. 612.) The trial court here determined that the defense made a prima facie case as to all three of the jurors at issue, meaning that our focus is on the third stage of the Batson/Wheeler analysis and whether the defense had proved the ultimate issue of a discriminatory motivation for the peremptory challenges.
We review the court’s ruling on purposeful racial discrimination for substantial evidence, giving deference to the trial court’s ability to distinguish “bona fide reasons from sham excuses.” (People v. Burgener (2003) 29 Cal.4th 833, 864; see also People v. Watson (2008) 43 Cal.4th 652, 671; People v. McDermott (2002) 28 Cal.4th 946, 971.) “As long as the court makes a ‘sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ ” (People v. Avila (2006) 38 Cal.4th 491, 541; see also Lenix, supra, 44 Cal.4th at p. 626; Snyder v. Louisiana (2008) 552 U.S. 472, 477 (Snyder).) “The best evidence of whether a race-neutral reason should be believed is often ‘the demeanor of the attorney who exercises the challenge, ’ and ‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” ’ ” (People v. Stevens (2007) 41 Cal.4th 182, 210.) “The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Lenix, at pp. 612-613.)
The challenge to Juror H. was supported by substantial evidence because his responses suggested he might have been particularly critical of Tang’s identification of appellant as the shooter, having explained during voir dire that he would not identify someone in court unless he was 100 percent sure it was that person. A juror’s skepticism about eyewitness identification is a race neutral reason that supports a peremptory challenge. (See People v. Irvin (1996) 46 Cal.App.4th 1340, 1348, fn. 8, 1354.)
Appellant argues that the prosecutor’s discriminatory purpose is evident from his claim (rejected by the trial court) that Juror H. was opinionated and overly eager to serve on the jury. Though the court did not find “justification” for the prosecutor’s conclusions, this does not make the other proffered reasons a pretext for racial discrimination or show that the peremptory challenge was based in substantial part on discriminatory motives. (See Cook v. LaMarque (9th Cir. 2010) 593 F.3d 810, 814-816 [upholding peremptory challenge where record did not support two of the six reasons given by prosecutor].) “Although the question of whether the prosecutor's reasons are rational and reasonable weighs into the trial court's determination of whether to conclude that they are genuine and not a pretext, those reasons need not meet any particular standard of reasonableness. The only relevant consideration for the trial court is whether the reasons were sincere and nondiscriminatory.” (People v. Davis (2008) 164 Cal.App.4th 305, 313.)
Although he did not raise the issue in the trial court, appellant argues that the prosecutor’s reasons for challenging Juror H. do not hold water in light of the responses by other jurors who were not excused. “Despite problems inherent in conducting comparative juror analysis for the first time on appeal—including the difficulties of comparing what might be superficial similarities among prospective jurors and trying to determine why the prosecutor challenged one prospective juror and not another when no explanation was asked for or provided at trial—both the [United States Supreme Court] and [the California Supreme Court] have done so on request.” (See People v. Jones (2011) 51 Cal.4th 346, 364, citing Snyder, supra, 552 U.S. 472, Miller–El v. Dretke (2005) 545 U.S. 231, and Lenix, supra, 44 Cal.4th at p. 622.)
Appellant notes that Juror H. expressed concerns that others on the panel could not be impartial to African-Americans. He asks us to compare this observation with the written comments of a seated Asian juror who questioned her ability to be impartial in a case where the victims were Asian, as well as the remarks of another seated juror who commented at one point that she was “not 100 percent positive” she could uphold the presumption of innocence, but had experienced “a real strong turnaround” after sitting through two days of voir dire. The comparison urged by appellant is not useful because the cited remarks are much different than those made by Juror H. and the prosecutor did not cite Juror H.’s concerns about the other jurors’ bias as a reason for excluding him from the jury.
We next turn to Juror J., who was excused primarily because she recognized the name Montae Howard, a potential witness who was arrested with Richard Lewis a few days after the shooting and who the defense would try to suggest was Lewis’s actual cohort in the robbery-murder. Though Juror J. could not recall why she was familiar with the name, the prosecutor was not required to take the chance that one of the sitting jurors might know a man whose culpability for the crime was at issue. Additionally, Juror J.’s experience with a friend who had been shot by the police and her viewing of a television show in which a crime victim’s cell phone had helped solve the crime were neutral reasons for the challenge—circumstances that the court implicitly found to be genuine even if they would not themselves have rebutted the prima facie showing of discrimination.
Appellant complains that the prosecutor also relied on Juror J.’s connection with the Pinole neighborhood, where appellant’s family apparently resided, as a reason for striking her from the jury. He claims that in offering this reason, the prosecutor effectively admitted that the challenge to Juror J. was “based in part on the impermissible notion that residence near the predominantly African-American area of Richmond automatically creates a bias in favor of an African-American defendant.” We disagree. The prosecutor was not suggesting that the racial makeup of Pinole or its neighboring communities made its residents more likely to sympathize with African-American defendants; rather, he expressed concern about a geographical connection between the juror and the defendant’s family that might engender sympathy. “Where residence is utilized as a link connecting a specific juror to the facts of the case, a prosecutor’s explanation based on residence could rebut the prima facie showing [of discrimination].” (People v. Williams (1997) 16 Cal.4th 153, 191.) Though the court concluded the Pinole connection was a trivial reason that would not have justified the challenge to Juror J. if considered alone, it implicitly found that reason to be genuine in the sense of being nondiscriminatory. We defer to that finding. (See Lenix, supra, 44 Cal.4th at pp. 613-614.)
Finally, substantial evidence supports the denial of the Batson/Wheeler motion as to Juror R., whose attitude toward law enforcement would have been troubling to any prosecutor who intended to call police officers as witnesses. Courts have repeatedly upheld peremptory challenges that are based on a prospective juror’s negative experiences with law enforcement. (E.g., People v. Turner (1994) 8 Cal.4th 137, 171, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Walker (1988) 47 Cal.3d 605, 625-626.) Though appellant points to other prospective jurors who expressed similar skepticism of police officers, these jurors were either removed for cause, excused by the prosecution or excused by the defense. Appellant does not suggest that anyone who actually served on his jury had expressed views about the police that were similar to those of Juror R.
Appellant suggests that this case had a “clear subtext of racial animosity.” He points to the questionnaire responses of seated jurors who expressed negative views about African-Americans and criminality; e.g., that high crime areas tend to be African-American neighborhoods and that African-Americans commit more crimes than other groups. These written comments by the seated jurors shed no light on the question before us—whether the prosecutor’s reasons for excusing Jurors H., J., and R. were genuine and nondiscriminatory. (See Jones, supra, 51 Cal.4th at p. 365.) Appellant makes no argument that the seated jurors who expressed these views should have been excused for cause, and defense counsel accepted the jury with five peremptory challenges remaining. We presume defense counsel was satisfied about the ability of these jurors to be fair.
Finally, it is significant, though not dispositive, that the final jury included an African-American, though the prosecution had eight peremptory challenges remaining. (See People v. Cleveland (2004) 32 Cal.4th 704, 734; People v. Dunn (1995) 40 Cal.App.4th 1039, 1053-1054; Burks v. Borg (9th Cir. 1994) 27 F.3d 1424, 1429.) The court may “rel[y] on the fact that the government waived available strikes and permitted members of a racial minority to be seated on a jury to support a finding that the government did not act with discriminatory intent in striking another member of the same minority group.” (United States v. Canoy (7th Cir. 1994) 38 F.3d 893, 900, and cases cited therein.)
2. Jury Instructions on Aiding and Abetting Theory
Appellant argues that the court should not have instructed the jury on aiding and abetting because the evidence did not support this theory of guilt. He claims the error was prejudicial because the jury’s rejection of the firearm enhancement and robbery-murder special circumstance allegation makes it apparent he was convicted under an aiding and abetting theory. We disagree.
Instructions on aiding and abetting are appropriate when substantial evidence would support a conviction under that theory. (People v. Nguyen (1993) 21 Cal.App.4th 518, 528.) “To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant to be guilty on the theory presented.” (Id. at pp. 528-529.)
“ ‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]’ ” (People v. Leon (2008) 161 Cal.App.4th 149, 157, citing People v. Cooper (1991) 53 Cal.3d 1158, 1164.) An aider and abettor is guilty of not only the intended crime (the so-called target offense) but of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime, i.e., a consequence that, when judged objectively, is reasonably foreseeable. (People v. Medina (2009) 46 Cal.4th 913, 920; People v. Prettyman (1996) 14 Cal.4th 248, 260-262.) And, when a killing is committed during the course of an enumerated felony such as robbery, aiders and abettors of the felony are liable for first degree murder under the felony murder rule even if the killing was not a natural and probable consequence. (§ 189; People v. Escobar (1996) 48 Cal.App.4th 999, 1018-1019, abrogated on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 911, 923-925; People v. Anderson (1991) 233 Cal.App.3d 1646, 1658; see also People v. Thompson (2010) 49 Cal.4th 79, 117 (Thompson).)
The prosecutor urged the jurors to find that appellant was the person who shot Tang and Chan, but argued that they could convict him as an aider and abettor even if they were unconvinced he pulled the trigger. Under this alternative view of the evidence, appellant was guilty of robbery as an aider and abettor if he intentionally encouraged or assisted in its commission; of attempted murder if he intentionally encouraged or assisted in its commission; of attempted murder if he aided and abetted a robbery and attempted murder was a natural and probable consequence of that robbery; and of felony murder based on the perpetrator’s commission of a killing during the robbery, regardless of whether the killing was foreseeable. The court gave versions of CALCRIM Nos. 400, 401, 402 and 540B that instructed the jury on these principles, and appellant does not challenge the substance of these instructions.
The jury found that the attempted murder was done “willfully, deliberately, and with premeditation” having been given a version of CALCRIM No. 601 that required a finding that appellant acted with an intent to kill, premeditation, and deliberation. Thus, assuming the jury convicted appellant of attempted murder as an aider and abettor, it would have found it unnecessary to rely upon the natural and probable consequences doctrine, which becomes germane only when the crime committed is an unintended consequence of aiding and abetting a different offense. Consequently, this case does not implicate the issue currently pending before the Supreme Court in People v. Favor, S189317, in which the court will decide whether a conviction of attempted premeditated murder under the natural and probable consequences doctrine requires a finding that premeditation on the part of the perpetrator was reasonably foreseeable. Appellant does not argue otherwise.
Substantial evidence supported the instructions on aiding and abetting. Viewed in the light most favorable to that theory, the evidence showed that appellant arranged to purchase two pounds of marijuana from Tang with the intent to rob him; that he traveled with Richard Lewis to San Francisco to commit an armed robbery under the pretext of the deal he had arranged; that he brought a gun with him; that he or Lewis redirected Tang over the phone to a more remote location; that Tang and Chan arrived in Tang’s car, with a bag of marijuana in the back seat; that Tang and Chan were shot by one of the men who came to do the deal, i.e., either appellant or Lewis; that the shooter (either appellant or Lewis) took the marijuana from Tang’s car and fled the scene with the other man driving; and that later that night, appellant and Lewis arrived at Clayton Klein’s home in Stockton with a duffel bag that appeared to contain marijuana, and were interested in watching the Bay Area television news.
The jury could have readily inferred from the evidence that appellant and Lewis planned to shoot Tang and steal his marijuana, even if it was unclear which of the two actually fired the gunshots. Lewis and appellant resembled each other in several respects—gender, race, braided hair styles, and, in the opinion of Tang, similar eyes—and the jurors might have doubted that Tang had convincingly identified appellant as the shooter, even as they found beyond a reasonable doubt that appellant and Lewis were the two men involved.
Tang identified both appellant’s and Lewis’s photographs as having eyes that looked like the shooter.
Appellant suggests that he cannot be convicted as an aider and abettor absent affirmative evidence that Richard Lewis shot Tang and Chan. We disagree. The jury need not decide unanimously whether a defendant was a direct perpetrator or an aider and abettor, so long as it is unanimous he was one or the other. (People v. Wilson (2008) 44 Cal.4th 758, 801-802.) “[A] sharp line does not always exist between the direct perpetrator and the aider and abettor: ‘It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.... The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who was the direct perpetrator or to what extent each played which role.’ ” (Thompson, supra, 49 Cal.4th at pp. 117-118; contrast People v. Singleton (1987) 196 Cal.App.3d 488, 492-494 [reversible error to give instructions allowing conviction on aiding and abetting theory where there was no proof of a perpetrator—only a “phantom figure about whom the jury heard no evidence”].)
3. “Contradictory” Factual Theories Were Not Espoused by the Prosecutor
Appellant argues, as he did at trial, that the prosecution’s reliance on aiding and abetting as an alternative theory of guilt deprived him of due process even if that theory was supported by the evidence. He notes that during his first trial and the separate trial of Richard Lewis (in which Lewis was acquitted), the prosecution took the position that appellant was the shooter and Lewis was the driver of the getaway car. Appellant characterizes the introduction of aiding and abetting into his second trial as an “espousal of mutually contradictory theories” in successive trials, of the type prohibited by the decision in In re Sakarias (2005) 35 Cal.4th 140 (Sakarias II). We are not persuaded.
In Sakarias II, two defendants were separately tried for the capital murder of a single victim. (Sakarias II, supra, 35 Cal.4th at pp. 144.) During the codefendant's trial, the prosecutor attributed the fatal blows to the victim solely to the codefendant, but subsequently, in the defendant’s trial, attributed the same fatal blows solely to the defendant. (Id. at pp. 147-149.) The Supreme Court concluded the prosecutor acted improperly by “attributing to each petitioner in turn culpable acts that could have been committed by only one person.” (Id. at p. 145.) “[T]he People’s use of irreconcilable theories of guilt or culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for it necessarily creates the potential for—and, where prejudicial, actually achieves—a false conviction or increased punishment on a false factual basis for one of the accuseds.” (Id. at pp. 159-160.)
The prosecutor in this case did not present inconsistent factual theories or false evidence. He consistently maintained, as he had during the first trial, that appellant was the shooter and Richard Lewis was the driver of the getaway car. But he recognized that the jury, if unable to determine who fired the fatal shot, could still agree that appellant and Lewis acted together. This did not amount to an inconsistency or a change in the factual theory of the case; it was simply a recognition that principals in a crime may be equally guilty regardless of their exact roles. (See Thompson, supra, 49 Cal.4th at pp. 112-120 [evidence sufficient to support defendant’s conviction for robbery and felony murder as either direct perpetrator or aider and abettor]; People v. McCoy (2001) 25 Cal.4th 1111, 1120 [aider and abettor doctrine obviates the need to decide who was the aider and abettor and who was the direct perpetrator].)
Unlike the situation presented in Sakarias II, there is no suggestion that in the course of presenting an alternative theory of aiding and abetting, the prosecutor withheld or misrepresented the available evidence so as to make appellant appear more culpable than he actually was. By acknowledging that the jury might return a guilty verdict under the aiding and abetting instructions, the prosecutor was actually allowing for a lesser penalty, in that an aiding and abetting theory would not have supported the enhancements or the special circumstance allegation as it was presented in this case. The prosecutor’s conduct was markedly different from the situation in Sakarias II, and did not deprive appellant of due process.
A felony-murder special circumstance may be applied to an accomplice who is not the actual killer, but only upon a showing that the person intended to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subds. (c), (d); People v. Proby (1998) 60 Cal.App.4th 922, 927.) Appellant’s jury was given a version of CALCRIM No. 730 that permitted a true finding only if appellant caused the death of another person.
4. Ineffective Assistance of Counsel
Appellant argues that his trial attorney should have presented evidence that during his first trial and the trial of Richard Lewis, the prosecutor argued that appellant was the shooter and Lewis was the driver of the getaway car. Appellant suggests that such evidence would have undermined the prosecutor’s efforts to argue that he could be guilty as an aider and abettor. We reject the claim, because appellant has failed to demonstrate either error or prejudice.
A defendant asserting ineffective assistance of counsel has the burden of showing: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice, i.e., a reasonable probability that the result of the proceeding would have been different were it not for the error. (Strickland v. Washington (1984) 466 U.S. 668, 686, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216, 218.) “Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 442.) Defense counsel is not required to make futile motions or engage in idle acts, such as the introduction of evidence he or she reasonably believes to be inadmissible. (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1409; see People v. Davis (1995) 10 Cal.4th 463, 503.)
Appellant has not demonstrated that his trial counsel was ineffective in failing to offer the prosecutor’s prior statements about the crime because he has not demonstrated that such statements would have been admissible. The statements were not themselves evidence and were not probative of the underlying facts. “The prosecutor, after all, was neither a participant nor a witness, and has no knowledge of the facts other than those gleaned from the witnesses and other available evidence.” (People v. Watts (1999) 76 Cal.App.4th 1250, 1263.)
As appellant notes, federal case law has recognized some circumstances in which a court may admit prior statements by counsel regarding the facts of the charged crime. In United States v. Salerno (2d Cir. 1991) 937 F.2d 797, 812, rev’d. on other grounds in United States v. Salerno (1992) 505 U.S. 317, 322, the court concluded that statements made by the prosecutor during closing argument in a former trial were not inadmissible per se, but were subject to a showing that (1) they involved an assertion of fact inconsistent with similar assertions in the subsequent proceeding; (2) they were equivalent to testimonial statements by the client; and (3) the inference to be drawn from the inconsistency is a fair one. (See also United States v. McKeon (2d Cir. 1984) 738 F.2d 26, 33 [applying same analysis to closing argument by defense counsel].)
These authorities do not assist appellant. Here, the prosecutor’s earlier statements to the effect that appellant was the shooter and Lewis was the driver were not factually inconsistent with statements made during appellant’s retrial. The prosecutor did not switch positions on retrial and claim that Lewis was the shooter and appellant was the driver; rather, he maintained that appellant was the shooter, but was guilty even if the jury could not determine his exact role in the crimes.
Even if we assume the prosecutor’s prior statements would have been admitted if offered by defense counsel, the omission of that evidence was not prejudicial. Absent a true inconsistency in the prosecutor’s positions, the jury would have drawn no negative inference from the former arguments regarding appellant’s and Lewis’s roles in the crimes. It is not reasonably probable the result of the trial would have been more favorable to appellant had the evidence been introduced. (Strickland, supra, 466 U.S. at pp. 694-695.)
5. Augmentation Request
Appellant asks us to revisit our denial of a motion to augment the record on appeal to include transcripts from his first trial and Richard Lewis’s trial. He acknowledges that these transcripts were not a part of the superior court file in the case before us, having been neither filed nor lodged in the record (Cal. Rules of Ct., rule 8.155(a)(1)(A)), but he suggests that augmentation requests should be construed liberally. Appellant claims the transcripts, which were referred to by counsel and by the trial court, are necessary to assess whether his right to due process was violated by the introduction of the aiding and abetting theory on retrial.
We deny the request to reconsider our ruling. “Augmentation does not function to supplement the record with materials not before the trial court. [Citations.]... Rather, normally ‘when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.’ [Citation.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; see also People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.) Appellant has not demonstrated any exceptional circumstances that would justify a deviation from this rule in this appeal.
We also note that the parties fully litigated issues concerning the instructions on aiding and abetting and the consistency of that theory with the position previously taken by the prosecutor. We have assumed that counsel, when arguing their positions on the aiding and abetting issue, accurately described the theories relied upon in the trial of Richard Lewis and in appellant’s first trial. We do not require the full transcripts of those prior proceedings to resolve the issues presented in this appeal, and we reject any suggestion that defense counsel provided ineffective assistance of counsel in failing to make those transcripts a part of the trial court record in this case.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., SIMONS, J.