Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court in Los Angeles County Super. Ct. No. BA274071, Ruth A. Kwan, Judge. Affirmed.
Charles Kelly Kilgore for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyosh and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Christopher Gonzalez was convicted of first degree murder and firearms discharge allegations. He contends: (1) The warrantless seizure of his car violated the Fourth Amendment. (2) Exclusion of all African-American jurors violated his right to a jury drawn from the community. (3) The trial court inappropriately limited cross-examination of the police gang expert. (4) His right to due process was violated because the photo lineup (six-pack) was unduly suggestive.
We find no error and affirm.
PROCEDURAL HISTORY
Appellant was convicted on count 3, which alleged the murder of Deontae Shaw on December 2, 2002. He was acquitted on counts 1 and 2, which alleged the murder of Howard Gordon and attempted murder of Neville Miller on October 21, 2001. The jury also found that a multiple-murder special circumstance was not true.
All three of the counts originally included a criminal street gang allegation (Pen. Code, § 186.22, subd. (b)(1)). Before the case went to the jury, the court struck count 3’s gang allegation. The gang allegation remained on the other two counts, but the jury found appellant not guilty on them.
Subsequent code references are to the Penal Code unless otherwise stated.
Appellant was sentenced to prison for 50 years to life on count 3, based on 25 years to life for first degree murder and 25 years to life for firearms discharge (§ 12022.53, subd. (d)).
FACTS
We summarize the evidence solely for count 3.
1. Prosecution Evidence
A. Greg A.’s Description of the Shooting
On the morning of December 2, 2002, Greg A. was “[t]aking out the garbage” in front of his parent’s house on Sixth Avenue near 57th Street. A small white car passed him. Seconds later, as Greg put trash into the bin, he heard gunshots. He then observed that the white car was parked at the corner, about 33 feet away from him, and “a young man [was] being shot.” The young man, later identified as Deontae Shaw, was standing on the car’s passenger side. He appeared to be reaching into the car to shake hands with the driver. The driver had his arm up and was using a small handgun to shoot Shaw. Greg could see the driver’s right profile through the car’s rear window, as the driver’s head was turned to the right. No one else was in the car.
After firing “more than three or four shots,” the driver turned the car west onto 57th Street and drove away. Shaw stumbled across the street and collapsed, mortally wounded. Greg yelled to his family members to dial 911 and then tried to assist Shaw.
B. The Investigation
Police officers responded to the 911 call. Shaw was taken away in an ambulance. He died from multiple gunshot wounds.
Homicide Detective Juan Contreras interviewed Greg at 11:05 a.m. that same morning. Greg described the car as a small white “squarish” compact with a “hatchback,” meaning that the car’s back window was not separate from its trunk. He also described the shooter. He himself was African-American. He said the shooter was of his complexion or “maybe a little lighter, [with] a moustache and maybe a goatee.” He also described the shooter as “bald,” by which he meant the shooter had very short hair, rather than no hair at all.
A few days after the shooting, Detective Contreras was driving one street west of the homicide scene when he saw appellant driving a compact station wagon that came close to the description provided by Greg. The car was “off-white” in color with a “grayish” or “light green” tint, “depending on the lighting.” It appeared to have been “painted over at one time.”
Detective Contreras noted the car’s license plate and followed appellant. Appellant parked the car on Fifth Avenue, about a block north of the crime scene, and joined two men on the porch of a house. Contreras returned to the police station and ran the car’s license plate on the database of the Department of Motor Vehicles. He thereby obtained appellant’s name, address, and photo. The photo showed the same person whom Contreras had seen driving the car. Appellant was 20 years old. The car was a 1996 Saturn. It was registered to “Georgina Gonzalez” at an address on Victoria Avenue. Contreras put out “a felony want” bulletin for the car, and informed his unit to impound it for evidence.
At 8:15 p.m. on December 12, 2002, Detective Grace Garcia saw appellant park the white Saturn station wagon in front of the address on Victoria Avenue. The car was impounded. Appellant was not arrested that day, but he told Garcia that he belonged to the Denver Lanes, a Blood gang.
On December 17, 2002, a criminalist found a .32-caliber gun inside the center console of appellant’s car. The gun contained six live rounds of ammunition. More live ammunition was found inside a baggie in the car. Bullets test-fired from the gun were compared with .32-caliber projectiles removed from Shaw’s body during the autopsy. The gun was the murder weapon.
Inside appellant’s car, the police also found a traffic citation dated October 2002, that had appellant’s name, the car’s license plate number, and the address on Victoria Avenue. Shaw’s fingerprints were not found in the car.
Sometime on December 17, 2002, appellant was arrested. His house was searched that day pursuant to a search warrant. In his bedroom, there were cryptic messages and symbols on various objects that, when interpreted by the gang expert, showed appellant’s allegiance to his gang and desire to kill members of a rival gang. A live round of ammunition was also found in appellant’s room.
On January 21, 2003, Detective Contreras showed Greg a six-pack that included appellant’s photo. Greg circled appellant’s photo in the six-pack. On the written comments section of the identification form, he wrote, among other things, that appellant’s photo “passe[d] as the closest resemblance to” the light-complected African-American who drove the vehicle and committed the shooting, “because of his slender face, complexion, mustache, [and] beard, [even though his] hair was cut shorter.”
On February 20, 2003, Greg was taken to a live lineup that contained six men who appeared very similar. Appellant had a large Afro hairstyle at that time. Greg signed a paper, indicating that he could not identify anyone. He focused attention on appellant, however, as he asked to have appellant hold his arm out and present a right side view. When he thought about the lineup afterwards, he realized that appellant matched the shooter more closely than any of the men in the lineup.
At the preliminary hearing, Greg testified that appellant might or might not be the shooter.
At the trial, Greg testified that appellant looked “similar” to the shooter, but he could not say that appellant was the shooter. He did, however, identify appellant’s car as the one the shooter used.
C. Defense Evidence
Shaw’s fingerprints were not found in appellant’s car.
Just before the shooting, two other neighbors, D.R. and Mario F., were outside talking together about 66 feet away from the corner of Sixth Avenue and 57th Street. They turned toward the corner when they heard the shots.
D.R. testified that he saw a small station wagon, but it was not appellant’s car, as it was an older car. D.R. admitted, however, that his attention was mainly focused on the young man who was being shot.
Mario testified that he heard gunshots, saw someone running, and saw a light green two-door Honda hatchback speed away. Appellant’s car was not that car, as the car he saw was smaller.
DISCUSSION
1. The Fourth Amendment Issue
Appellant contends that the warrantless seizure of his car on the basis of a “felony want” violated the Fourth Amendment, as probable cause did not exist for the seizure.
A. The Record
Appellant’s written motion to suppress evidence simply argued that, because there was no warrant, the burden was on the People to justify the seizure of the car and subsequent search of it.
There was confusion at the suppression hearing itself because the sole witness, Detective Garcia, used the terms “felony want” and “felony warrant” interchangeably.
When the hearing began, the court asked whether counsel would stipulate that there was no arrest or search warrant. Defense counsel said he understood there was no warrant. The prosecutor refused to stipulate, “because there was a search warrant, and there also was a want in the system, a felony want for this defendant.”
Later statements by counsel clarified that a search warrant was obtained after the car was seized, but did not exist at the time it was seized.
Detective Garcia was then called as a witness. Defense counsel interjected: “Your Honor, before we begin, if there are any warrants that are being relied upon, I would ask that they be marked for identification . . . .” The court asked the prosecutor if the prosecutor possessed a warrant. The prosecutor replied, “There was no Harvey/Ojeda issue filed. I mean, I’m putting on the witness who stopped the car based on what she knew and what she ran in the system, and unless counsel is going to file a Harvey/Ojeda [sic], I do not have to present those.”
Ojeda v. Superior Court (1970) 12 Cal.App.3d 909, 915 (Ojeda); People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey).
Defense counsel complained that he thought appellant was detained on a traffic stop, and he needed notice if there were search warrants or arrests warrants.
The prosecutor responded that defense counsel had been given the “murder book,” which stated: “[O]n December 12, 2002, officers received information from 77th homicide detectives that a felony warrant was placed on possible 187 [murder] suspect Christopher Gonzalez’s vehicle, information received was on a 1996 Saturn station wagon, four-door, license place number, and it gives the license plate number.”
Defense counsel replied that he knew about search warrants and arrest warrants, but he did not know what the report meant by “a felony warrant on a vehicle.”
The court asked the prosecutor if there was “such [a] thing as a felony warrant.” The prosecutor said she planned to ask Detective Garcia about the felony warrant. She also had available “the detective who inputted the felony warrant into the system.” The prosecutor believed the “felony warrant” was “archived.” Garcia said, “That’s correct.”
Defense counsel again complained that if the People were relying on a warrant, it needed to be introduced as evidence. The defense objected to any reference to a “warrant” unless the prosecutor made clear the “amorphous reference to a felony warrant.” The court noted defense counsel’s objections. Detective Garcia then testified:
On December 12, 2002, Detective Garcia and her partner were assigned to the 77th Division gang unit. About 8:15 p.m., Garcia saw appellant parking a white 1996 Saturn in front of an address on Victoria Avenue. Earlier that day, Garcia received information that there was a “felony warrant on the vehicle.” Garcia explained that a “felony warrant” is “a specific want on a vehicle, and the want is listed in the system. When you run the license plate, it will say specifically what the vehicle is wanted for. In this instance, it was wanted as a possible 187 [murder] suspect vehicle.” Garcia knew about the “felony warrant or want” because she had spoken earlier that day to Detective Contreras, the homicide detective assigned to the case. Contreras told her about that specific car, a 1996 Saturn with that license plate number. When she saw the car, Garcia “ran” the license plate number, which “came back with a hit, or with a confirmation that there was a want on the vehicle.”
The prosecutor asked, “Now, once you ran the license plate number on this and saw the felony warrant, or the want, or a hit, whatever the different things you’ve called it, what did you then do?” Detective Garcia said that, based on the confirmation of the information Detective Contreras gave her, she and her partner “conducted a traffic stop,” which meant they ordered appellant to step out of the car. They called Contreras, who had “put the warrant in the system.” They impounded the car on instructions from Contreras. Appellant was not arrested at that time.
The prosecutor further inquired, “Once the car was impounded, are you aware of any search warrants that were then executed the following day for this vehicle.” Defense counsel objected based on speculation, hearsay, and relevance. The trial court said it did not understand the objection, as it thought the defense was trying to suppress the gun found in the car. Defense counsel responded, “Well, the thrust of this motion is the seizure of the vehicle that day, and not necessarily any subsequent search that took place in the days later.” The court sustained the objection. Detective Garcia then testified that after the car was impounded, it was towed.
On cross-examination, Detective Garcia clarified that she and her partner made a traffic stop based on the “want,” and did not see any traffic violation. The court then heard argument.
The prosecutor simply stated: “I believe that from the officer’s testimony, as you could tell, there was a felony warrant [sic] in the system. She received that information not only from the detective, but verified it in their computer when she ran the license plate. I believe that’s sufficient. Submitted.”
Defense counsel strenuously complained that the words “warrant” or “felony warrant” should not have been used, as the terms were not clear, and the seizure of the car was not authorized by a warrant signed by a magistrate. He maintained that there was no legal basis for the seizure, as there was no search warrant, exigent circumstance or traffic violation. According to him, the seizure could not be justified by a “want” or “warrant,” which appeared to be “some kind of police administrative be-on-the-lookout type of information.”
The court denied the suppression motion. It ruled that there was probable cause to detain the vehicle based on the felony want, as the car matched the description and license plate of the car that was suspected of involvement in a murder.
B. Analysis
Applying the appropriate standard of review (People v. Glaser (1995) 11 Cal.4th 354, 362), we find no violation of appellant’s Fourth Amendment rights through the seizure of his car.
Defense counsel argued that the information known to Detective Garcia did not justify seizing appellant’s car. The law is to the contrary. “[A] police officer is entitled to rely on information which reaches him through official channels.” (Ojeda, supra, 12 Cal.App.3d at p. 915.) “One means of establishing probable cause is by matching the description of vehicles.” (People v. Jones (1981) 126 Cal.App.3d 308, 314.) Garcia could reasonably rely on the information provided by Detective Contreras, which Garcia verified before seizing the car. (People v. Gomez (2004) 117 Cal.App.4th 531, 540-541; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1552-1558.)
If the defense requests it, the prosecution must show that the officer who originally furnished information to officers in the field had probable cause to believe a felony was committed. (Ojeda, supra, 12 Cal.App.3d at pp. 915-916; Harvey, supra, 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.) Defense counsel made no such request here. In any event, “[t]here is no requirement that the officer whose personal observations were relied upon for purposes of the probable cause determination actually testify to his or her observations. To the contrary, the Harvey/Madden rule merely precludes the prosecution from relying on hearsay information communicated to the arresting officer that is not sufficiently specific and fact based to be considered reliable.” (People v. Gomez, supra,117 Cal.App.4th at p. 541.) The specific, fact-based information about appellant’s car that Detective Garcia learned from Detective Contreras met that test.
Appellant asks us to focus on what Detective Contreras knew at the time he placed the “want” for appellant’s vehicle. He complains that the car that Contreras saw appellant driving did not match every detail of what the eyewitnesses had told the police and the 911 operator. That argument was not made below. The scope of review is limited to the arguments raised at the suppression motion. (People v. Williams (1999) 20 Cal.4th 119, 136.) Moreover, there were sufficient facts for probable cause, as Greg described the car as a “squarish” compact white hatchback and Contreras saw appellant driving a “grayish” car of that description, about a block from the area of the shooting, a few days after it occurred.
We have seen the photo of the car. It was distinctive enough to justify the seizure.
We therefore conclude that the seizure of appellant’s car did not violate his Fourth Amendment rights, and the suppression motion was properly denied.
2. Exclusion of African-American Jurors
During voir dire, defense counsel made Wheeler/Batson motions regarding the prosecutor’s use of peremptory challenges to exclude four prospective African-American jurors. There were no African-Americans on the jury that was finally selected. On appeal, appellant complains that exclusion of two of the prospective African-American Juror Nos. 9646 and 9435, violated his constitutional rights to equal protection and to a jury composed of a representative cross-section of the community. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.)
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)..
A. The Record
Juror No. 9646 was a computer technician at Farmer’s Insurance. She was a single mother of two boys, ages 12 and 16. She lived in the Crenshaw area. She had never been on a jury or charged with a crime. She had no relatives in law enforcement. Neither she nor any of her relatives had been a victim of a crime. She felt she could be fair to both sides and follow the law.
When the prosecutor later exercised a peremptory challenge against this juror, defense counsel made a Wheeler/Batson motion. He complained that the juror was African-American and race was the only possible justification for excusing her. The court found there was a reasonable inference that the juror might have been excused based on race. It asked the prosecutor to justify her reasons. The prosecutor explained that Juror No. 9646’s arms were crossed the entire time that other jurors were answering questions. The juror had appeared to frown if she did not like an answer. At one point, she had closed her eyes, and it was possible she fell asleep. This was a complicated case, and the prosecutor did not want a juror who did not want to be in the courtroom.
The court stated that Juror No. 9646 appeared to act younger than her age. It had seen that the juror’s hands were folded, but had not observed some of the behavior the prosecutor described. It thought the juror sat “with an attitude,” as if she were “kind of a young punk.” The “bottom line” was that the court believed the prosecutor was giving a genuine reason, and the exclusion was based on “bad vibes and bad body language,” rather than on race.
Juror No. 9435 was a cosmetologist whose husband was a production manager. She had two 16-year-old children. She lived in Inglewood. She had been the victim of two crimes, “a hit and run” and a home invasion robbery. During the robbery, someone entered her home, robbed it, and stole her car, while she and her children were asleep.
During further questioning, the court asked if any of the jurors “lived in a gang-infested neighborhood.” Juror No. 9435 asked the court to clarify that term. The court did so, and asked the juror if she lived in such an area. She replied that “gangs are everywhere,” there was some gang activity where she lived in Inglewood, there had been “tagging” in the alley behind her, and she had witnessed gang gatherings. She also said she owned rifles and a handgun, which she kept for protection.
When the prosecutor indicated that she planned to excuse Juror No. 9435, defense counsel renewed his Wheeler/Batson motion. He pointed out that Juror No. 9435 was the last African-American who might reasonably sit on the jury. The court stated that while it could see why the People would want to excuse the juror, there appeared to be, “on the surface . . . no good reason to excuse her.” It therefore told the prosecutor to state her reason. The prosecutor said that she challenged the juror because of the responses to the questions about gang infestation, as this was a gang-related case in which a gang expert would testify, and the juror seemed to minimize the problem of gangs. Also, the prosecutor did not understand why the juror had laughed when she was asked if she had ever fired her gun.
The court agreed with the prosecutor, finding that the juror’s response to questions and demeanor showed she had an “attitude” when talking to the court and counsel that was “not acceptable.” Therefore, the court found that the juror was excused for reasons other than race.
B. The Applicable Law
A prosecutor who uses peremptory challenges to strike prospective jurors because of group bias violates a criminal defendant’s right to trial by a jury drawn from a representative cross-section of the community under both the Fourteenth Amendment to the United States Constitution and article I, section 16 of the California Constitution. (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell).) The federal constitutional right was established by Batson, supra, 476 U.S. 79. The California counterpart was recognized prior to Batson, in Wheeler, supra,22 Cal.3d 258. (Bell,at p. 596.)
The trial court conducts a three-part inquiry in response to a Wheeler/Batson motion. First, the defendant must make out a prima facie case by showing that the totality of the circumstances creates an inference of a discriminatory purpose. Second, if the defendant has made out a prima facie case, the burden shifts to the prosecution to adequately explain its peremptory challenges by offering justifications that are group bias-neutral. Third, if such an explanation has been given, the trial court must decide whether the defendant has proven purposeful discrimination. (Bell, supra, 40 Cal.4th at p. 596; Johnson v. California (2005) 545 U.S. 162.)
A prosecutor may rely on a prospective juror’s body language, facial expression, or manner of answering questions, as an appropriate basis for a peremptory challenge. (People v. Reynoso (2003) 31 Cal.4th 903, 917.) The trial court must make a “sincere and reasoned attempt” to assess the prosecutor’s justifications, but it need not make specific or detailed comments, to explain why it accepts the prosecutor’s explanation for the challenge. (Id. at p. 919.)
In reviewing the denial of such a motion, a deferential standard of review is ordinarily used, to determine whether the ruling was supported by substantial evidence. The prosecutor is presumed to have employed the peremptory challenges in a constitutional manner. The reviewing court gives great deference to the trial court’s ability to assess the validity of the rationale the prosecutor offered for the challenges. (People v. Reynoso, supra, 31 Cal.4th at p. 919; see also People v. Salcido (2008) 44 Cal.4th 93, 136-137.)
C. Analysis
The prosecutor explained that Juror No. 9646 was excused because of her “attitude,” as her facial expressions and body language made it appear she “didn’t want to be here.” Juror No. 9435 was also dismissed for her “attitude,” as it appeared from her responses that she minimized the problem of gang activity. As to both of the excused jurors, the court found that the record supported the prosecutor’s assertions that the jurors were excluded for reasons other than their race. We give great deference to those findings, which are supported by the record. The court fulfilled its duty, by making a “sincere and reasoned attempt” to assess the prosecutor’s justifications. (People v. Reynoso, supra, 31 Cal.4th at p. 919.) We therefore hold that the Wheeler/Batson motions were properly denied.
3. Limitation on Cross-Examination of the Gang Expert
The gang expert could not say whether the killing of Shaw was gang-related, as very few facts were known about it, and its cause might have been “something personal.” Due to that testimony, the trial court struck the gang allegation on count 3. Even though his conviction does not include a gang enhancement, and even though the trial court permitted extensive cross-examination of the gang expert, appellant contends that the court committed prejudicial error when it sustained objections to a few questions about whether gang members might hand off guns to other people after using the guns during a crime.
Before the rulings in question, the expert had already testified, during cross-examination, that a gang member who had used a gun might hand it off to another gang member, or might retain it for a long period of time. Appellant contends that the court should not have sustained objections to further defense questioning on that subject. He complains, in particular, that the prosecutor was permitted on redirect examination to elicit testimony that again showed that gang members might either hand off guns to someone else or hold onto the weapons themselves. When defense counsel tried to raise the subject again on recross-examination, the trial court foreclosed further questioning, on the ground there was no evidence that anyone handed the gun to appellant.
We reject appellant’s arguments about the rulings limiting cross-examination because (1) the rulings were not an abuse of discretion; (2) the expert had already given the testimony defense counsel sought; and (3) assuming error, there was no possible prejudice, as the gang allegation was later stricken.
4. The Six-Pack
Appellant contends that Greg’s eyewitness identification should have been excluded because, according to appellant, he was the only person in the six-pack who looked like an African-American.
When the same argument was made below, the court inquired whether appellant was “a hundred percent African American.” Defense counsel responded that appellant’s mother was from Central America and did not appear African-American, but appellant did not look Hispanic. Defense counsel characterized appellant as “a light-skinned African American.”
We note, however, that appellant uses his mother’s Hispanic surname.
The court agreed with defense counsel that appellant did not look Hispanic, but disagreed with counsel’s characterization of the racial background of the other men whose photos appeared in the six-pack. The court had difficulty defining the men’s race “simply and easily.” It thought various of the men might be African-American, Hispanic, a combination of those races, or Middle Eastern. It concluded that the six-pack was not unduly suggestive, so Greg’s identification of appellant from the six-pack was admissible.
We use the independent standard of review de novo for this issue. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)
The six-pack shows six young men of appellant’s age, all of whom have dark eyes, dark eyebrows, close-cropped hair, and similar well-groomed facial hair. Like the trial court, we reject appellant’s suggestion that he was the only man in the six-pack who appeared to be an African-American. Appellant emphasizes that Greg testified on cross-examination that appellant’s photo appeared closest to an African-American, and the other photos appeared to be of men “of another race.” In our view, the photos show men who might be African-American, Hispanic, Middle Eastern, or a combination of those races. Four of the photos, including appellant’s photo, show relatively light-skinned men. Two of the photos depict men with darker complexions. Small numbers appear only under appellant’s photo but, unlike the problem with the six-pack in People v. Carlos (2006) 138 Cal.App.4th 907, 912, appellant’s name does not appear beneath his picture. The faces are what catch the eye, and appellant’s photo does not stand out.
We therefore conclude that the six-pack in this case was not unduly suggestive, so Greg’s identification of appellant did not violate appellant’s constitutional right to due process of law.
We caution law enforcement agencies, however, that the continued practice of putting identifying numbers on the front of the six-pack, next to the suspect’s photo, could lead to a finding, in an appropriate case, that the numbers made the suspect’s photo stand out, resulting in an unduly suggestive lineup.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.