Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF203579. Gerald F. Sevier, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, J.
Defendant Michael Edwards was convicted in count one of carrying a loaded firearm when he was not the registered owner. As to this crime, it was found that he committed the crime for the benefit of a criminal street gang, suffered a prior serious felony conviction that qualified as a strike, suffered a prior serious felony conviction for enhancement purposes, and served a prior prison term. Defendant was convicted in count two of active participation in a criminal street gang; the same prior conviction and prior prison term enhancements were found true. Defendant appeals, claiming the trial court erred in the following: denying his Batson/Wheeler (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258) motion, instructing the jury regarding unjoined perpetrators, and staying rather than striking the prior prison term enhancement. We agree the prior prison term enhancement should have been stricken; in all other respects, the judgment is affirmed.
FACTS
Tulare County Sheriff’s Deputy Steve Sanchez stopped a car because it was missing the front license plate. He walked up to the passenger side door and saw that there were four occupants in the vehicle. While making contact with the driver through the front passenger window, he saw that the rear passenger on that side of the car, defendant, was fidgeting and appeared to be stuffing an object into the waistband of his pants. Sanchez attempted to open the rear passenger door, but defendant locked the door. Sanchez told defendant to open the door; he opened the door after 10 seconds.
After backup units arrived to assist Sanchez, defendant was removed from the car. A patdown search was conducted, and a firearm was removed from defendant’s waistband. The gun was a.45-caliber semiautomatic handgun. While there was not a live round in the chamber of the gun, there were seven live rounds in the attached magazine of the gun.
In addition to defendant, there was a female driver of the car, a 13-year-old male in the rear passenger seat behind the driver, and Jimmy Garza (a documented active northern gang member) in the front passenger seat of the car. The female driver told Sanchez she was taking defendant home and that he lived next door to one of her relatives. When the car was stopped it was very close to defendant’s home.
The gun found in defendant’s possession was registered to Hallie Bamford, who had reported the gun was missing; he did not give permission to anyone else to possess the gun. On cross-examination, Bamford testified that his son admitted he took the gun.
In addition to testifying as the arresting officer in this case, Sanchez testified as a gang expert. First, Sanchez testified about gangs in general. Gang members carry weapons to assault their rivals. They assume roles of violence to gain respect; instilling fear is one way to gain respect. Gang members often have tattoos demonstrating which gang they represent.
Sanchez listed 10 criteria to determine if an individual is a gang member; meeting three of these criteria satisfies a finding that the individual is a gang member. The exception to the above rule is that “self-admission” to gang membership while in a custodial facility is by itself sufficient to meet the criteria of being a gang member.
It was Sanchez’s opinion that a person would be at a disadvantage in a custodial facility if he or she claimed gang affiliation but was not in fact a gang member. In addition, individuals do not normally have gang tattoos if they are not in a gang.
Regarding guns, Sanchez testified that guns carried by gang members are typically not registered to them. The purpose: the weapon cannot be traced if it is used in a crime. He said it was common for gang members to exchange weapons or guns with other gang members so the weapons are readily available for them to commit assaults against rival gang members. If one gang member has a weapon, the other gang members in his company are usually aware that the one member has a weapon. It is disrespectful for gang members to not let the others in their presence know, particularly in a car, that a gang member is in possession of something “hot.”
Sanchez testified more specifically about the Norteno street gang. Members wear the color red and associate with the letter N and the number 14. The Nortenos are an ongoing criminal street gang with 3,000 or more members in Tulare County. Sanchez testified that the primary activities of the Norteno gang were assaults, vandalism, and drive-by shootings. Sanchez recounted two crimes ending in conviction for two separate Norteno gang members: one was assault with a semiautomatic firearm and the other was voluntary manslaughter.
To support his opinion that defendant is a member of a criminal street gang, Sanchez stated that he is familiar with defendant. In 2000, defendant admitted that he was a northern gang member. On another occasion he also admitted gang affiliation, and when stopped he was displaying a red handkerchief. In 2001, when defendant was booked into a law enforcement facility, he listed southerners as his enemies. Defendant admitted gang affiliation at a booking in 2003, and in 2004 he was classified as a northern gang member by the Department of Corrections.
Pictures and descriptions of defendant’s tattoos were admitted into evidence. These included a tattoo of the word “Nightmare,” defendant’s moniker (gang nick-name). In addition, defendant had tattoos on his body of numerous words associated with the Norteno gang. The letters “TC,” tattooed on defendant’s body, represented Tulare County, and the letters “GMK” represented Goshen’s Most Kraziest, a subset of the Norteno gang.
Jimmy Garza, the front seat passenger in the car defendant was riding in, was documented as an active northern gang associate.
It was Sanchez’s opinion that defendant is absolutely a northern street gang member and a member of the subset Goshen’s Most Kraziest. His opinion was based on prior reports, prior contacts, tattoos, and self-admission.
Sanchez was asked the following hypothetical: “[Prosecutor] Say you have an individual who is in possession of a loaded firearm that’s not registered to him. This person has tattoos that identify him with a particular gang. This individual has self-admitted to being part of a particular gang. This individual is found with another known or active self-admitted gang member while he’s in possession of this unregistered firearm. [¶] Now, based on the facts of that hypothetical, do you have an opinion as to whether this particular crime, possession of an unregistered firearm, was committed for the benefit of or in association with or at the direction of the Norteno criminal street gang?” It was Sanchez’s opinion that the “gang member who is in possession of the firearm was carrying the firearm for the primary reason of protection from rival gang members and/or to commit [an] assault against rival gang members.”
Utilizing the above hypothetical, Sanchez was asked if the possession of the firearm was committed to promote or to further or assist criminal conduct by the gang. It was Sanchez’s opinion, “That it does. Being in possession of a firearm alone by a gang member promotes his status within the gang, given the fact that rival gang members are less likely to assault him if they know he is carrying a weapon. [¶] Also, it promotes the gang by people who know if the gang member’s carrying a weapon, it instills fear within the community which will in turn promote his status of himself, as well as the gang.”
On cross-examination, Sanchez stated that Nortenos are typically Hispanic and defendant is Asian. Sanchez also admitted that the 2001 booking form does not contain an admission of gang membership by defendant. Defendant was not wearing any red at the time of his arrest. When defendant’s house was searched following his arrest, there were no indicia of gang activity in his home. In addition, Sanchez testified that the fact a gun is not registered does not necessarily relate it to being a “gang thing”; he did testify that it is common for gang members to possess guns that are unregistered.
While Sanchez was transporting Jimmy Garza, Sanchez asked him if defendant was an Oriental Trooper. Garza replied that defendant “better not be, he’s a Northerner.” Sanchez testified that he did not know whether defendant knew that Garza was a Northerner and Sanchez did not know what subset of the Nortenos Garza was a member of. Sanchez admitted that defendant is the only gang member he knows who is a member of the Norteno subset of Goshen’s Most Kraziest.
Sanchez testified that it was after he saw defendant’s tattoos that he decided to look into a possible gang allegation.
DISCUSSION
I. Batson/Wheeler Motion
Jury voir dire was extremely brief. Prospective juror Santana was one of the 18 people called into the jury box and questioned by the court and counsel. He answered the standard questions asked of him. After finding 18 qualified prospective jurors to be in the jury box, the court began the inquiry as to peremptory challenges. The People and defense counsel each peremptorily challenged two prospective jurors. Santana was excused as the third peremptory challenge by the People. The defense then excused one more prospective juror and the People accepted the panel. Defense counsel then excused another prospective juror.
After the above prospective jurors were excused, the court called seven new prospective jurors to the panel, including Lina Saenz. These prospective jurors were questioned. Saenz answered the court’s general questions in a very brief fashion. After these prospective jurors were found to be qualified, the court entertained a peremptory challenge from the People. The prosecutor accepted the jury. Defense counsel then peremptorily challenged a prospective juror. The People then challenged Saenz.
At this time, defense counsel made a Batson/Wheeler motion. It was agreed that Santana and Saenz were Hispanic. The court found that these two prospective jurors excluded by the prosecutor were members of a cognizable group. The court found a prima facie case of discrimination. To this the prosecutor responded, “There’s four that have been kept on the jury” and defense counsel has excused just as many individuals. The court stated, “[T]hat’ not the analysis.”
The following exchange then took place: “THE COURT: Well, you must give a race neutral justification for the challenges that you made, particularly as to Mr. Santana and Ms. Saenz.
“MR. VACA [prosecutor]: For both of ‘em, they just seemed like they were disengaged. They didn’t appear that they wanted to be here. That’s just the vibe I got from both of them.
“THE COURT: Is that the extent of your reasons?
“MR. VACA: Yes. I mean, it had nothing to do with them being Hispanic. I mean, I’m Hispanic myself. My mom’s from Mexico. I would never be racist towards my own ethnicity.
“THE COURT: Well, that really isn’t -- I have no reason to think you would be, but that’s really not the question.
“The challenges must be made -- made for reasons that were reasonably relevant to the issues, parties or witnesses in this particular case.
“Why as to Mr. -- can you give me any further information as to Mr. Santana and his disengagement or disinterest; what struck you such that you came to that conclusion as to him?
“MR. VACA: Just based on the way he was sitting there, didn’t look like he was really here listening. He was just kind of sitting there.
“I mean, I know that jurors tend to sit there and just kinda listen, but it just seemed like he wasn’t really paying attention, nor -- I just got the impression that he really didn’t want to be here and wasn’t interested in -- in serving as a juror.
“THE COURT: How about Ms. Saenz?
“MR. VACA: Same, I got the same feeling from both of ‘em; that they -- neither one of ‘em wanted to be here.
“THE COURT: What did you observe about Ms. Saenz?
“MR. VACA: She just seemed again like she was just there -- was here but wasn’t really here, like she wasn’t interested in being here.”
“THE COURT: Is there anything about her body -- well, let’s talk about Ms. Saenz. Was there something about her body language or -- I don’t think a vibe is something that I can recognize
“MR. VACA: Okay.
“THE COURT: -- or should recognize.
“MR. VACA: The look on her -- or the expression on her face. She just kind of had a plain expression on her face, glossy-eyed -- I don’t know if you want to say glossy-eyed, but just like she wasn’t really paying attention to what was going on.
“THE COURT: Anything else?
“MR. VACA: No. I mean, just the look of her -- of her disposition sitting there didn’t seem like she was really paying attention, was really interested in what was going on.
“THE COURT: Is there anything else about Mr. Santana?
“MR. VACA: No, your Honor, anything else would be redundant. It was just the feeling -- it just looked like he was not paying attention, didn’t look like he wanted to be here. I don’t know if he wasn’t feeling well or what, it just looked like he didn’t want to be here.
“THE COURT: All right, then, I will -- just so the record is clear, I did find that a prima facie case was established and, of course, then the burden shifts to the District Attorney to provide a satisfactory under the law race neutral justification for the challenge.
“As to Mr. Santana, there was something different, if you will, about Mr. Santana’s demeanor. It -- we can’t always, when people are strangers to us, we cannot really know when we do attach significance to demeanor whether or not our conclusions are accurate, but I do recall that there was a facet to Mr. Santana’s body language and manner of responding that was -- I don’t want to say different or unusual, but it was noticeable. I did notice that.
“Insofar as -- and it may be that I was more conscious because of the prospect of asking Wheeler challenge questions as to people who are obviously of a cognizable [c]lass or group that might give rise to such a challenge if it is made.
“As to Ms. Saenz, didn’t really occur to me that she was a member of a cognizable group, but now that it’s been brought up, I do find that she was, do agree, and thinking about her demeanor during the brief information she conveyed, it probably took her no more than 10 seconds to provide the information. She did.
“The information, itself, was not something of note. I do recall that she was turned away from counsel table at the time she gave her brief answers, but I really didn’t -- it really didn’t strike me as anything, at least in my mind, because some people are shy and don’t like divulging information. Mr. Vaca interpreted that, I assume, in a different way.
“The bottom line is that while another person might make a different judgment as to the conclusions that Mr. Vaca drew from each of these two jurors, nevertheless, I am satisfied that the explanation give by Mr. Vaca was the actual basis for the challenge, and the motion is denied.”
Defendant contends the trial court erred in denying the Batson/Wheeler motion. He asserts there was little in the way of specifics to justify the prosecutor’s proffered reason that both jurors appeared to be inattentive. In addition, he claims the trial court’s findings did not reflect that it concurred in the prosecution’s assessment of the jurors’ demeanor.
An inattentive prospective juror is an appropriate concern in making a peremptory challenge and when supported by the record can properly result in a finding that a peremptory challenge was exercised in a constitutional manner. (People v. Reynoso (2003) 31 Cal.4th 903, 920.) In reviewing a claim of error by the trial court in denying a Batson/Wheeler motion, “[i]t should be discernable from the record that 1) the trial court considered the prosecutor’s reasons for the peremptory challenges at issue and found them to be race-neutral; 2) those reasons were consistent with the court’s observations of what occurred, in terms of the panelist’s statements as well as any pertinent nonverbal behavior; and 3) the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges. As to the second point, the court may not have observed every gesture, expression or interaction relied upon by the prosecutor. The judge has a different vantage point, and may have, for example, been looking at another panelist or making a note when the described behavior occurred. But the court must be satisfied that the specifics offered by the prosecutor are consistent with the answers it heard and the overall behavior of the panelist. The record must reflect the trial court’s determination on this point [citation], which may be encompassed within the court’s general conclusion that it considered the reasons proffered by the prosecution and found them credible.” (People v. Lenix (2008) 44 Cal.4th 602, 625-626.)
It is well established that the trial court’s first-hand observations of the demeanor of the challenged prospective juror and the prosecutor are of great importance and play a pivotal role in evaluating Batson/Wheeler claims. It lies peculiarly within the trial court’s province to determine credibility and demeanor. In the absence of exceptional circumstances, we should give great deference to the trial court’s assessment of credibility and demeanor. (People v. Kelly (2008) 162 Cal.App.4th 797, 807-808.)
Defendant contends the prosecutor’s claims of inattentiveness were not supported by sufficient factual, observable behavior and the trial court did not make findings in favor of the prosecutor’s reasons. We disagree. The trial court noted that there was something noticeable about prospective juror Santana’s demeanor. As to Saenz, the court began by noting that it is more conscious of jurors who are obviously of a cognizable class that might give rise to a challenge, but it did not occur to the court him that Saenz was a member of a cognizable group. The court’s statement implies it was not paying close attention to Saenz. Although the court stated that Saenz’s behavior did not strike it as being anything different or unusual, the court went on to note that the information she conveyed in response to the court’s questions took no more than 10 seconds and she was turned away from counsel table at the time she gave her brief answers. The court concluded that the prosecutor interpreted Saenz’s behavior in a different way and it was satisfied that the prosecutor’s explanation was credible--“the actual basis”--for the challenge. Thus, the court undertook a proper inquiry and was satisfied that the specifics offered by the prosecutor were consistent with the overall behavior of the prospective jurors. This is precisely what the trial court is required to do.
The trial court did not err when it denied the Batson/Wheeler motion made by defense counsel.
II. Instruction on Unjoined Perpetrators
After both sides rested, the court instructed the jury on the general principles of the law applicable to the case. The district attorney then argued the case to the jury. During his argument to the jury, the prosecutor submitted to the jury that everyone in the car knew defendant had a gun and that the gun was on his person.
Defense counsel conceded that defendant possessed the gun. The focus of his argument was in refuting the gang enhancement and substantive gang offense. In particular, counsel argued there was no evidence the driver or the 13 year old had any gang affiliations and, if there had been evidence of such affiliations, Sanchez would have testified about it. Defense counsel also stated that the jury did not hear anything from anyone else in the car.
After defense counsel completed his argument, the trial court held a conference outside the presence of the jury. The court stated that it was going to give an instruction on unjoined perpetrators. Defense counsel stated that there was not any evidence to support giving the instruction. The court replied that in his argument to the jury defense counsel questioned why the other gang members were not at trial. Defense counsel said he did not say that, but did question why the other people were not at trial to talk about to whom the gun belonged. The court stated it was going to give the instruction; it wanted defense counsel to reopen his argument if he wished to address the instruction. Defense counsel replied that he did not have time to think about it and declined the court’s invitation.
The trial continued with the prosecutor making his final argument to the jury. He argued that it was no coincidence that defendant was hanging out with Garza. In an attempt to refute defense counsel’s argument, the prosecutor stated that no one came in at trial to say that they knew defendant had the gun because “snitches” are dealt with and taken care of by gang members.
After the prosecutor concluded his argument, the court told the jury it was going to give it some more instructions, that it is of no consequence that these instructions are being given at the end of the case, and that the jury should consider the totality of the instructions. The court then instructed about statements used by Sanchez to form his expert opinion. This instruction was followed by the unjoined perpetrator instruction, followed by general concluding instructions to the jury.
The unjoined perpetrator instruction (CALJIC No. 2.11.5) was stated to the jury as follows: “There has been evidence in this case indicating that a person other than Mr. Edwards was or may be involved in a crime for which the defendant is on trial. There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial and whether he or she has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of Mr. Edwards who is on trial here.”
Defendant argues this instruction was irrelevant to the case and had the effect of directing the jury to disregard a wholly proper argument that went to a key aspect of the defense to the gang enhancement attached to the firearm possession count. It is claimed that there is a reasonable probability the jury would not have found the gang enhancement true if this instruction had not been given. Defendant maintains that the instructions to the jury to not speculate or guess why the other occupants of the car were not being prosecuted in this trial or whether they will or will not be prosecuted directed the jury not to think about why the witnesses did not appear and in effect informed the jury to disregard counsel’s argument.
“The purpose of CALJIC No. 2.11.5 ‘“‘is to discourage the jury from irrelevant speculation about the prosecution’s reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators. [Citation.]’”’ [Citation.]” (People v. Fonseca (2003) 105 Cal.App.4th 543, 548.)
Defendant contends the instruction was irrelevant to the facts of this case. We disagree. Sanchez testified he saw defendant fidgeting and putting something in his waistband after Sanchez went to the passenger side window of the car. From this evidence it could be inferred that as the car was being pulled over the gun was somewhere other than in defendant’s possession and defendant took possession of the gun and put it in the waistband of his pants. Thus, other occupants of the car may have been in possession of the loaded firearm.
The trial court did not err in giving this instruction.
III. Staying the Prior Prison Term Enhancement
At sentencing the trial court stayed the prior prison term enhancement found true in both counts because defendant also received a five-year enhancement for the prior serious felony conviction that was the basis of the prior prison term enhancement.
Defendant contends and respondent concedes the trial court erred in staying rather than striking the prior prison term enhancement in both counts.
A trial court may not impose a prior serious felony conviction enhancement and a prior prison term enhancement based on the same prior conviction. The prior prison term enhancement in each count should be stricken. (People v. Jones (1993) 5 Cal.4th 1142.)
DISPOSITION
We direct the trial court to amend the abstract of judgment to reflect the striking (rather than staying) of the prior prison term enhancement in counts 1 and 2; copies of the amended abstract are to be forwarded to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: ARDAIZ, P. J., KANE, J.