Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge, Los Angeles County Super. Ct. No. BA 288736
Vincent James Oliver for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendant Herman Jay Dixon timely appealed from his conviction for first degree murder. The jury found the firearm allegations to be true, and the court found the prior conviction allegations to be true. The court sentenced defendant to 80 years to life. Defendant contends the prosecutor engaged in racial discrimination during voir dire and the court erroneously admitted hearsay evidence over his objection. We affirm as modified to correct some errors in the court’s sentencing minute order and abstract of judgment.
FACTUAL BACKGROUND
I. Prosecution Evidence
In August 2005, Monica Curtis lived with appellant, who was her boyfriend, and her three children, including Makia and Makala; they lived at the home of appellant’s parents. The house was adjacent to an auto shop owned by appellant’s parents.
On August 14, Monica and appellant argued with each other as they drove home from a party with Makia and Makala. Once at home, appellant parked inside a gate in front of the house, and everyone got out of the car. Appellant went into the house, and Monica made a call from her cellular telephone. Monica hung up her phone as soon as appellant emerged from the house, and they resumed their argument. Makia and Makala stood near the back of the car during that time.
During the argument, Monica walked over to a pay phone located between the house and the auto repair shop and called a friend. As Monica talked, appellant went over and hung up the phone. Monica then told appellant that she was going to leave. Appellant said, “‘No,’” and told his friend Willie Gaines, who stood nearby, to get his gun. Gaines retrieved a gun from the car and handed it to appellant, who immediately fired a shot into the air. Monica, who stood near the phone, asked appellant why he had fired the gun “‘in front of [her] kids?’” Appellant’s mother then came out of the house and told Makia and Makala to go inside. Makia walked toward the front door, and Makala stayed outside with Monica. Appellant then walked up to Monica and shot her in the head. Monica fell to the ground near the phone booth, and appellant ran down the street.
Makia ran into the house and awoke her brother Bima and appellant’s son Duane. The police arrived within minutes of the shooting and interviewed those present.
After talking to Makia, Los Angeles Police Detective Richard Arciniega walked down the street looking for other evidence. Arciniega encountered Gaines and two other men on the porch of the residence next door to the crime scene. Gaines approached and told Arciniega that prior to the shooting, appellant had asked Gaines to retrieve a gun from the trunk of a car. Gaines said he refused so appellant went to the trunk himself, pulled out a gun, and fired a shot into the air. Appellant then grabbed Monica and fired a shot into her head. Gaines said that appellant fled after Monica fell to the ground. Although Gaines believed that what appellant had done was wrong, he refused to sign a statement or go to the police station to make a formal statement because “[t]oo many people were watching him,” and he was afraid to get involved.
Thomas Ratcliffe, a deputy coroner, responded to the scene and noted a single gunshot to the left side of Monica’s head. Based on the “considerable” amount of stippling surrounding the wound, Ratcliffe opined the gun was six to eight inches away from Monica’s head when it was fired. Dr. Vadims Poukens performed the autopsy on Monica and concluded she died as the result of a single gunshot wound to the head. Poukens opined that based on the trajectory of the wound, the gun had been parallel to the ground when it was fired.
At trial, Gaines denied he had been present when Monica was shot and said he had been urinating nearby when he heard a gunshot. As Gaines ran toward appellant’s house, he heard a second gunshot. When Gaines arrived, he found Monica lying face down on the ground dead. Gaines had seen appellant talking to Monica near the phone booth prior to the shooting, and they had not appeared to be arguing. Subsequently, Gaines testified he had been with appellant and Monica while they stood at the phone booth and Monica had given him the keys to the car. Gaines did not know why Monica had given him the keys so he gave them to appellant. Gaines stated he was considered the neighborhood “drunk” and he was afraid to testify because he feared retaliation by individuals in the neighborhood.
II. Defense Evidence
Appellant testified in his own defense. On August 14, while at a party, Monica had a lot to drink. As they drove home, Monica turned off the radio and began arguing with appellant. When they arrived home, appellant took some food into the house, and Monica stayed outside with her girls. Gaines and Victor Jackson were in the yard. Appellant came back outside and talked to Monica. One of appellant’s friends approached, hugged him, and said, “Watch out for the H.O.B.,” a Mexican gang appellant feared because he was a former gang member. Appellant asked Gaines to get him a gun. Gaines got a gun from a friend and gave it to appellant. As Gaines handed the gun to appellant, it went off in the air. Monica asked appellant, “‘Why you all playing . . . with the gun?’” Appellant apologized, pushed Monica away and said he was going to put the gun up. Monica charged appellant, and appellant slipped and fell to the ground. Monica fell on top of him, and they struggled. During the struggle, the gun went off, and a bullet hit Monica in the head. Appellant did not intentionally kill Monica because he loved her.
Robert Adair testified that on the night of the shooting, he heard a gunshot as he was walking around the neighborhood. Adair walked in the direction of the gunshot and saw appellant wrestling with his girlfriend on the ground. Adair did not hear a second shot.
Adair was inconsistent as to whether he had seen appellant and his girlfriend wrestling on the ground before or after he heard the gunshot.
At approximately 9 p.m. on that night, Mary Dixon, appellant’s mother, heard a gunshot as she sat inside her house. Mary went to the door, looked outside and saw Makia and Makala standing near appellant’s car. Mary saw appellant near the driveway and Monica near the telephone booth. Mary told Makia and Makala to come inside and sit on the sofa, which they did. Shortly after the children entered the house, Mary heard another gunshot. Mary went outside and found appellant and Monica lying on the ground.
III. The Prosecution’s Rebuttal Evidence
Detective Arciniega and Detective Johnny Villa interviewed appellant at the police station two days after the murder. Appellant told the detectives that prior to the shooting, he and Monica had argued on the way home from a party and they continued to argue once they got home. During the argument, appellant asked Gaines to get a gun out of the trunk of the car because he needed to protect himself against enemy Mexican gang members. Gaines retrieved a gun and, as he handed it to appellant, it discharged. Thereafter, appellant and Monica continued to quarrel. During the argument, Monica attempted to slap the gun out of appellant’s hand, and as she did so, the gun discharged a second time, and a bullet hit her in the head. Appellant said Monica was four to five feet away from the gun when the second round was fired. At the time of the interview, Monica’s autopsy had been completed and the detectives were aware of the evidence showing the gun had been fired at close range. After the detectives told appellant the evidence did not support his version of the events, appellant changed his account of what had happened and instead of Monica slapping the gun from his hand, appellant said Monica rushed towards him, they struggled and the gun discharged during the struggle.
DISCUSSION
I. Peremptory challenge
Appellant contends that the court’s determination that a female juror was not an African-American was arbitrary and allowed the prosecutor to engage in racial discrimination during voir dire.
A. Background
1. Trial Motion
During voir dire, Prospective Juror No. 35 stated she and her husband were both self-employed and she worked as a writer and independent producer. She stated they had been experiencing financial difficulties and, in her absence, childcare would be a problem, and she had to find a new school for her oldest child as they could not afford the private school he was attending. Prospective Juror No. 35 stated a neighbor who happened to be home that day was watching the children. The neighbor was a “very dear friend” and the wife of an assistant district attorney who worked in the courthouse where the trial was being held.
The prosecutor subsequently exercised his thirteenth peremptory to challenge Prospective Juror No. 35. Appellant’s counsel made a Wheeler motion (People v. Wheeler (1978) 22 Cal.3d 258) stating:
That is the second African-American, female African-American, that has been challenged by the prosecution. I can’t think of any reason why she should be excluded from the jury, unless it is race based. All witnesses in this case, other than police officers, are African-American. There are very few in the entire panel. I think there are five out of 65.
The court found no prima facie case of racial discrimination under Batson (Batson v. Kentucky (1986) 476 U.S. 79) or Wheeler because it did not appear the challenged juror was African-American, stating:
I don’t think she is really African–American myself. I think she is dark skinned, but I really thought she is, even though she has an American–sounding name, she almost appeared to me to be Indian-looking. I don’t think she is African-American at all. [¶] So I will find no prima facie case has been established under Batson and Wheeler. I don’t believe that the People are exercising their peremptories in insidious fashion. I’m not asking the People to respond. But for purposes of the record, if the People would like to make a comment, you can make a comment.
The prosecutor stated the challenged juror did not appear to him to be African-American and otherwise declined to comment. The court then noted:
Quite frankly I was about 30 seconds away from excusing her for cause based upon her own personal predicament, but I really don’t feel she is African-American. [¶] So the request at this point under Batson/Wheeler is denied.
2. New Trial Motion
Appellant moved for a new trial on the ground the trial court improperly denied his Batson/Wheeler motion. The court held a hearing on the motion. Appellant argued the court erred in finding, without formal inquiry, that Prospective Juror No. 35 was not African-American. Appellant asserted the problem was not national origin but skin color and stated, “we have an obligation under the Constitution” to eradicate racial profiling in the courtroom. The court asked appellant to show how the record demonstrated a prima facie case for relief under Johnson v. California (2005) 545 U.S. 162. Counsel argued appellant was entitled to the benefit of the doubt as to the juror’s race, the court was not qualified to make the factual determination it had, and “what I saw was an African-American, and the second African-American, by the way, who was being systematically excluded by the prosecution.”
The court inquired about counsel’s claim the challenged juror was the second Black woman who had been challenged and asked why defense counsel had not included a recitation of facts regarding the first African-American challenged to support his claim of systematic exclusion. Counsel explained he let the first challenge go because there might have been a race neutral reason to exclude her. Counsel stated there were five African-Americans on the panel of 65 prospective jurors and he objected to the second challenge because African-American women are routinely excluded by prosecutors in Los Angeles County. The court disagreed with that assertion and opined it was an unfair “assessment of prosecutorial conduct generally.”
The prosecutor argued that defense counsel should have clarified his position that his motion was based on the fact the prospective juror was a person of color not on her race at the time he made his motion and that as he (the prosecutor) did not believe the prospective juror was African-American, it was “ridiculous” to claim he excluded her because she was African-American.
The court denied the motion on ground that appellant had not demonstrated a prima facie case of discriminatory purpose, explaining in part:
I believe the People when [the prosecutor] indicated he agreed with my conclusion that the juror was not African-American or Black, and I believe he exercised the peremptory in a valid, race neutral, skin color neutral basis.
I think it’s critically important to note, as the court did at that time, that Juror Number 35 was very candid in indicating that serving on this jury would constitute a financial and a personal hardship. She actually volunteered to us that she had already [spoken] with administrative representatives of the court . . . about getting excused from jury service because of significant child care issues and financial issues. . . . I indicated that at the time of the bringing of this motion I was about -- I think I said I was about 30 seconds away from excusing her for cause, and I actually would have, because I think there was a for cause challenge to her. So that goes to show I believe, again, a valid basis for her being excused, and most importantly, the lack of a prima facie case.
[Defense counsel] candidly indicates that he is limiting this motion to Juror Number 35, and as far as I’m concerned, that’s where it begins and ends, because we really have no other basis for addressing the totality of the circumstances. I am satisfied that a prima facie case was not established.
B. Proper Challenge
“‘[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.’” (People v. Silva (2001) 25 Cal.4th 345, 384.) In the instant case, the court found that appellant had not made a prima facie case of racial discrimination.
“[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. As with other findings of fact, we examine the record for evidence to support the trial court’s ruling. Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal. If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.” (Citations omitted.) (People v. Howard (1992) 1 Cal.4th 1132, 1155.)
Recently the California Supreme Court addressed the showing needed to establish a prima facie case of discrimination. “Though proof of a prima facie case may be made from any information in the record available to the trial court, we have mentioned ‘certain types of evidence that will be relevant for this purpose. Thus the 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. Bell (2007) 40 Cal.4th 582, 597.)
Appellant contends that he objected under Batson/Wheeler when the prosecutor challenged the second female person of color, that females of color are members of a cognizable group, that it is the black or dark skin of people that is universally hated and discriminated against and that the question for the court should have been whether Prospective Juror No. 35 was a member of that group. However, when appellant made his motion, he did not claim Prospective Juror No. 35 was a female person of color, rather he expressly stated she was a female African-American whose exclusion was race-based.
Whether Prospective Juror No. 35 was African-American or a female person of color, appellant points to no evidence in the record, such as that discussed in Bell, supporting an inference she was excluded for a race-based reason. As the court noted, appellant’s motion was limited to Prospective Juror No. 35. Even though defense counsel suggested another African-American woman was excluded, he conceded he did not challenge that peremptory because there might be a race-neutral reason for that exclusion. There is no indication in the record regarding the number of females of color in the venire. Neither is there any statement of the race of the victim although based on appellant’s description of all the witnesses other than the officers as being Black, it would appear Monica was also Black.
Finally, there was a race-neutral reason for excusing Prospective Juror No. 35, i.e., the court indicated it was 30 seconds away from excusing her for cause due to significant child care and financial issues. (See People v. Walker (1988) 64 Cal.App.4th 1062, 1068-1070.)
II. Field
Appellant contends the court erred in admitting Exhibit No. 7, the field notes of Detective Arciniega’s interview with Gaines at the scene.
During the cross-examination of Arciniega, defense counsel attacked his failure to audiotape his interview with Gaines, suggesting Arciniega had fabricated a statement Gaines had given at the scene because certain details of the interview were not contained in Arciniega’s field notes. Although the statement attributed to Gaines that “[i]t was wrong what [appellant] did to her,” was admitted on cross-examination, defense left the impression Arciniega had fabricated portions of his field interview in order to convict appellant.
On redirect, the People introduced, and Arciniega authenticated, a page of handwritten notes that Arciniega took during his field interview with Gaines. Over appellant’s hearsay objection, the court admitted the notes under Evidence Code section 1236, stating:
I think [a] foundation has been established for prior consistent statements. Counsel has certainly addressed the credibility or lack of it of Detective Arciniega and what Mr. Gaines may or may not have said. And it is going to be for the jury to determine [the] overall value of any such testimony, but I will overrule the objection and allow into evidence People’s 7.
Evidence Code section 1236 provides: “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.” Evidence Code section 791, subdivision (b) allows a prior consistent statement if offered after “[a]n express or implied charge has been made that [the witness’s] testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
Appellant’s complaint seems to be that the notes were not admitted in accordance with Evidence Code sections 1236 and 791 as they were admitted to address the credibility of Arciniega. Arciniega’s field notes where made before the purported trial fabrication and thus were properly admitted as a prior consistent statement. (See People v. Bolin (1998) 18 Cal.4th 297, 321.)
Appellant maintained his claim of fabrication in closing argument stating that Arciniega had a bias to convict appellant and that Gaines did not say anything like what Arciniega had in his notes.
As there was no merit to either of appellant’s claimed errors, there was also no cumulative error. (See People v. Ochoa (1998) 19 Cal.4th 353, 435-436.)
III. Abstract of Judgment
Respondent notes several inconsistencies in the court’s sentencing minute order and the abstract of judgment that need to be corrected to conform to the court’s oral pronouncement. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [“The record of the oral pronouncement of the court controls over the clerk’s minute order.”]; see also People v. Mitchell (2001) 26 Cal.4th 181, 185 [Appellate courts may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts.].)
As part of appellant’s sentence the court imposed a five-year prior serious felony enhancement pursuant to Penal Code section 667, subdivision (a)(1). However, the minute order and the abstract of judgment reflect the five-year enhancement was imposed pursuant to section 1203.085, subdivision (b), a probation-ineligibility provision.
Unless otherwise noted, all statutory references are to the Penal Code.
The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and imposed and stayed a $10,000 parole revocation fine (§ 1202.45). However, the minute order and the abstract of judgment reflect the court imposed a parole revocation fine of $200. Section 1202.45 provides that when a section 1202.4 restitution fine is imposed, the court shall “assess an additional parole revocation restitution fine in the same amount” as the restitution fine.
The court imposed a $20 court security fee. (§ 1465.8, subd. (a)(1).) Neither the minute order nor the abstract of judgment reflect that fee.
We will order the superior court to correct these errors. (See People v. Zackery (2007) 147 Cal.App.4th 380, 388 [“[T]he clerk’s minutes must accurately reflect what occurred at the hearing.”].)
Accordingly, the superior court is ordered to correct its sentencing minute order and abstract of judgment to reflect the five-year enhancement is imposed pursuant to section 667, subdivision (a)(1). The minute order and abstract of judgment should also be corrected to reflect a parole revocation fine of $10,000 is imposed and stayed and a $20 court security fee is imposed.
DISPOSITION
The judgment is modified to reflect the imposition of a five-year enhancement pursuant to Penal Code section 667, subdivision (a)(1), the imposition and staying of a parole revocation fine of $10,000, and the imposition of a $20 court security fee. The superior court is ordered to prepare and file with the Department of Corrections an amended abstract of judgment reflecting the changes indicated herein. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P.J., WILEY, J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.