Opinion
E050402
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. DARRYL TYRONE GOSHEN, Defendant and Appellant.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVI024300)
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed in part; reversed in part.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Darryl Goshen, of second degree murder, during which he used a knife (Pen. Code, §§ 187, subd. (a) & 12022, subd. (b)(1)). He was sentenced to prison for 15 years to life, plus one year and appeals, claiming his Wheeler/Batson motion was erroneously denied, the jury was misinstructed and the sentencing court improperly ordered him to pay some of the cost of appointed counsel and the cost of booking. We reject all his contentions but the last, and, therefore, affirm the judgment and the sentence, while reversing the order for the cost of appointed counsel and booking.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.
FACTS
Around 9:45 p.m. on May 14, 2006, a deputy sheriff was dispatched to a Victorville apartment complex. As he approached defendant, who was standing facing the victim, he saw defendant plunge a knife into the victim's neck. The victim had had his hands balled up at his side, but had not had anything in them. Defendant took off running after the officer told him to stop, and the latter pursued him. Defendant was apprehended at gun-point by another officer who arrived at a different part of the complex, after he attempted to side step this officer following that officer's order to stop. Defendant had no injuries. The knife was found under a car in the parking lot of the complex where defendant had been apprehended.
ISSUES AND DISCUSSION
1. Denial of Defendant's Wheeler/Batson Motion
After the prosecutor used peremptory challenges to remove the only three African-Americans that were in the jury pool, defendant, who is also African American, brought a motion to quash the jury pursuant to Wheeler/Batson. Because the prosecutor had excused all the African-Americans in the jury venire, the trial court asked her to explain her use of peremptories against them. The prosecutor said she excused potential juror Ford due to her family's contact with law enforcement and the fact that her brother had been prosecuted for murder. Defense counsel agreed that Ford had properly been excused. The trial court concluded that it was satisfied with the prosecutor's reason for excusing Ford, which was specific and supported by the record. The prosecutor stated that she excused potential juror Shirley because he had been arrested for disturbing the peace. Defense counsel asserted that this reason was questionable. The trial court concluded that it was satisfied with the prosecutor's reason for excusing Shirley, which was specific and supported by the record, despite Shirley's assertions that he could be fair. The prosecutor said she excused potential juror Benson because the latter was a court room clerk, who said that she sees "these cases" everyday and the prosecutor was concerned that if the quantum of proof in this case was not as great as in the cases Benson had seen in her court room or if this case was presented by the prosecutor differently than the prosecutors Benson had seen, the latter could not be impartial. The prosecutor added that she typically peremptorily excused court room clerks and she could not recall if she had ever had one on any of her juries.
The trial court said that although it was aware that one wrongful excusal of a potential juror was all that was needed to require quashing the jury under Wheeler/Batson, the fact that the excusals of Ford and Shirley were supported by the record made it feel that the excusal of Benson was proper. It added that it accepted as honest the prosecutor's representation that she had excused Benson because the latter was a court room clerk and not because she was African-American.
Defense counsel moved for a mistrial based on the excusals of Ford, Shirley and Benson, but said he would withdraw his motion if the trial court placed Benson on the jury. The prosecutor pointed out that she had excused a Caucasian potential juror because he was a former correctional officer. In denying the motion, the trial court said it was not its job to determine if the prosecutor was correct in her belief that a court room clerk could not be impartial, but only to determine if the prosecutor honestly held that belief and excused the potential juror because of it. The trial court added that it was permissible for an attorney to excuse a potential juror due to that potential juror's occupation.
This is correct. (People v. Reynoso (2003) 31 Cal.4th 903, 924-925.)
Defendant here challenges the excusals of Shirley and Benson. '""In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, 'the trial court "must make a 'sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, [the court's] knowledge of trial techniques, and [the court's] observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .' [Citation.]"' [Citation.] . . . [¶] 'Review of a trial court's denial of a WheeIer/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] "We review a trial court's determination regarding the sufficiency of a prosecutor's justifications . . . '"with great restraint.'" [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]"' [Citation.]"'" (People v. Vines (2011) 51 Cal.4th 830, 848 (Vines).) In accepting a prosecutor's race-neutral explanation for excusing a potential juror, "'the issue comes down to whether the trial court finds [it] . . . to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, [it is]; and by whether [it] has some basis in accepted trial strategy.' [Citation.]" (People v. Lenix (2008) 44 Cal.4th 602, 613.) The trial court focuses on the subjective genuineness of the reason, not its objective reasonableness. (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
Defendant points out that Shirley was convicted of disturbing the peace (and we point out that this occurred seven years or less before this trial), he said this would not affect his ability to view the evidence in this case, there was nothing about the case that would cause him a problem with being fair and impartial or that would cause him to hold anything against law enforcement or the defense or anyone else and he had been treated "fine" by law enforcement. Defendant here asserts that the trial court erroneously accepted that prosecutor's proffered explanation because the latter had accepted a juror who had two suffered convictions for driving under the influence and one for driving with a suspended license between 1983 and 1985. However, this juror said of these convictions, "I had it coming. I was young. I didn't realize that drinking and driving was that bad for me. Later in life, you realize that you could have hurt somebody. You take your punishment and go on with life." Therefore, his position was not similar to Shirley's, who suffered his convictions much more contemporaneously to the trial and who did not express the sentiment that he had offended due to his youth, that he had gotten what he deserved for what he had done and that he had learned and "moved on" from the experience. In fact, when asked by defense counsel if the public defender's advice to Shirley at the time of his conviction was "don't come back," Shirley added, "The odds weren't in my favor." "The prosecutor reasonably could have taken such life experiences into account in selecting jurors. . . . [¶] . . . [She] could have found [the differences] significant . . . ." (Vines, supra, 51 Cal.4th at p. 852.) Moreover, there is a difference between convictions for driving under the influence and on a suspended license and disturbing the peace. The latter, as many prosecutors know, often result from more serious charges involving an act of violence, which is far more similar to the murder charge then pending against defendant, in contrast to the other two offenses.
At first, Shirley said it occurred in 2007 and then he changed it to 2003.
This statement contradicts defendant's assertion that this juror had a more negative contact with law enforcement than Shirley did.
Defendant asserts that the prosecutor treated and questioned this juror differently than Shirley. Specifically, he asserts that after Shirley, in response to questions by the trial court and defense counsel, said that he could be fair and impartial despite his conviction for disturbing the peace, the prosecutor asked him how he had been treated by law enforcement and whether there was nothing from the conviction that would cause him to hold anything against law enforcement, the defense or anyone. First, this was the prosecutor's first opportunity to question Shirley, who had not previously been asked by the trial court or defense counsel about any possible negative treatment by law enforcement. Second, in contrast to Shirley, the juror volunteered that he committed his offenses because of his youth, the punishment he received he had coming and he had learned his lesson. It would have been redundant for the prosecutor to ask him the same questions she asked Shirley. Shirley did not similarly volunteer such sentiments and before the prosecutor questioned him, he had not volunteered specifically that he had been treated fine by the police at the time of his offense.
Defendant continues his comparative juror analysis by pointing out that the prosecutor accepted as an alternate juror someone who had suffered a conviction for driving under the influence, whose friend had been "busted" for drugs around 1992 and whose sister had spent time in jail for grand theft at a time not disclosed. However, this alternate also said that he suffered his conviction in 1992 and he "pled guilty because [he] was." Thus, his position was more similar to the juror's than to Shirley's. Since Shirley was not excused because a friend or relative had suffered a conviction, the fact that this alternate's friend and sister had is marginally relevant. Additionally, this alternate went on to state that he and other relatives had been crime victims and his nephew was a prison guard and his father had been a Border Patrol Officer. If the relevant consideration is one's interaction with the criminal justice system, this alternate had a more balanced one than Shirley did.
Defendant concedes as much in his reply brief.
Defendant also asserts that the trial court did not "make a serious inquiry into the genuineness of the proffered reason" for the prosecutor excusing Shirley. Defendant, however, fails to state what more the trial court should have done.
As to potential juror Benson, defendant incorrectly asserts that the trial court's reason for excepting the prosecutor's justification for excusing her was its conclusion that the excusals of Ford and Shirley were not race-based. Defendant then asserts that the prosecutor's reason, i.e., that Benson was a court room clerk and, thus, might be biased by comparing this case to others she had heard, was not valid because it applied equally to anyone who has sat in on a criminal case. Defendant is again incorrect. There is a great difference between a lay person, who is fairly unfamiliar with the court system, viewing one criminal trial as a juror (which some of the jurors in this case had) and a felony criminal division court room clerk, with 30 years of experience, seeing hundreds of criminal cases being tried. In contrast to a juror who said that when he found out what this case was about, "it immediately made me start taking . . . [¶] th[e] summons [to appear for jury duty a lot more seriously,]" Benson said, "I didn't have any thought at all because I do these types of charges daily. [¶] . . . [¶] [Sometimes,] . . . it gets a little routine." We do not find the fact that the prosecutor did not ask Benson if, despite her vast experience with criminal cases, she would compare this prosecution with those an indication that the prosecutor's explanation was not sincere. Of course, Benson would have said that she would not. 2. Jury Instruction
Although one juror said he had served on five juries in the past, only three were for criminal cases, the most recent 10 years previously. Another juror said she had served on three juries, but did not specify whether any were for a criminal case. Another juror had been on one criminal jury "25 years ago." A fourth juror had been on one criminal jury "years ago."
When asked how long she had worked in the criminal courts, she responded that she had been "with the court system for 30 years. I've worked downtown criminal courts about the last 15." She elaborated that she began in Los Angeles and then went to Pomona, before returning to Los Angeles. She did not specify whether she was in a criminal courtroom during her first stint in Los Angeles or at Pomona.
a. Involuntary Manslaughter
Defendant contends the trial court had a sua sponte duty to instruct the jury that if his voluntary intoxication caused him to be "not conscious of his . . . actions or the nature of those actions" he should be convicted of involuntary manslaughter (Judicial Council of California Criminal Jury Instruction, CALCRIM No. 626). Defendant correctly concedes that there must be substantial evidence of his unconsciousness due to voluntary intoxication in order for this duty to arise. (People v. Halvorsen (2007) 42 Cal.4th 379, 418 (Halvorsen); People v. Breverman (1998) 19 Cal.4th 142, 175, fn. 22.) Defendant finds that substantial evidence in the fact that his blood alcohol level, given the burn off rate for alcohol provided by the autopsy surgeon, was, by defendant's calculation, 0.20 at the time of the crime. The doctor also testified that at any given blood alcohol level, some people can appear more or less intoxicated than another with the same level. There was no testimony whatsoever about defendant's drinking habits and whether he would be as impaired at 0.20 as someone who did not have his drinking habits. Defendant also relies on statements he made during an interview with the police a little over six hours after the crime. In that interview, defendant continually denied stabbing the victim, saying he had no reason to stab him, as the victim had come to his aid when others beat the defendant up twice after the defendant argued with a woman. The problem with defendant's statements, in term of the current issue, is that he did not claim that he was not conscious of his actions or the nature of those actions, nor did his statements create a reasonable inference of either. He had a clear recollection of exactly what he claimed had occurred—defendant and the victim going to the gym in the afternoon and drinking two 16 ounce bottles of beer, each, beginning at 4:00 or 5:00 p.m., then meeting up with the victim's friends while playing basket ball at the courts near defendant's apartment, defendant getting into two arguments with the woman, who was part of the group, his being "jumped" twice by her male friends, while the victim tried to stop them, the woman's mother or aunt attacking defendant with a knife, him getting the knife and attempting to return to his apartment when he was intercepted by a police officer he identified by name and dropping the knife. Although at certain points in the interview, he speculated that the victim had been stabbed while defendant was "stumbling" with the knife, this was pure speculation and in response to the interviewer's insistence that another officer had seen defendant stab the victim. The fact that defendant's version of the events did not match what police witnesses testified had happened does not mean defendant was not conscious of what he was doing—several times during the interview, he expressed great concern about being convicted of murder and going to prison. His version of the events was, no doubt, his effort to avoid these consequences. Therefore, apart from his blood alcohol level, there was no evidence of unconsciousness and the former was insufficient, in and of itself, to constitute substantial evidence of unconsciousness, a point with which defendant agrees.
Defendant said he was woozy and his head was spinning from the two beatings. However, this did not establish that he was not conscious of his actions or the nature of those actions.
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In People v. Ochoa (1998) 19 Cal.4th 353, 424, the California Supreme Court concluded, "[Defendant's] statement that he did not know what was going through his mind does not present conflicting evidence" "[with other evidence demonstrating] a methodical, calculated approach to the crimes . . . even read in isolation, it would be ambiguous and insufficient to permit a jury composed of reasonable individuals to find that he committed involuntary manslaughter. Read in context, we understand his remark only to mean that his intoxication clouded his judgment and caused him to make foolish choices, not that he lacked malice aforethought." We do not consider defendant's statements here to even rise to the level of the defendant's statement in Ochoa.
In Halvorsen, supra, 42 Cal.4th at pages 418, 419, the California Supreme Court concluded there was insufficient evidence to trigger the trial court's duty to instruct sua sponte on unconsciousness where, "[d]efendant's own testimony makes clear that he did not lack awareness of his actions during the course of the offenses. . . . That he did not, by the time of trial, accurately recall certain details of the shootings does not support an inference he was unconscious when he committed them. . . . [D]efendant in this case testified in sharp detail regarding the shootings. That he earlier had told [a doctor] he did not remember them does not, without more, suggest his testimony about the crimes was mere confabulation. . . . [¶] . . . [E]vidence that . . . he spent the afternoon drinking . . . , producing a blood alcohol level that . . . might, according to the testimony of [a doctor], have approached .20 percent at the time of the shootings . . . [¶] . . . is lacking in substantial evidence that defendant was not conscious of his criminal actions . . . ."
In People v. Turk (2008) 164 Cal.App.4th 1361, 1379, 1380, Division One of this court concluded, "[T]estimony . . . suggests that [defendant] was significantly intoxicated at the time of the killing. However, this testimony does not support the inference that [defendant] was so intoxicated as to be unconscious . . . . [¶] [No] eyewitness testified that, prior to the killing, [defendant] appeared to 'lack awareness of his actions' as a result of intoxication. [Citation.] [Defendant] did not testify at trial and there is no statement from him therefore that he lacked a recollection of the events preceding the killing. [Citation.] [¶] Further, there was no expert testimony presented suggesting that the symptoms of intoxication that [defendant] exhibited, . . . indicated unconsciousness stemming from intoxication. . . . [¶] Further, [the] testimony that [defendant] appeared intoxicated does not, by itself, constitute evidence of unconsciousness. . . . [Defendant] identifies no expert or eyewitness testimony that suggests that he was unconscious at the time of the killing."
Having concluded there was insufficient evidence to support an instruction on unconsciousness, we necessarily reject defendant's "fall-back" argument that his trial attorney was prejudicially incompetent for failing to request such an instruction.
b. Intoxication Affecting Imperfect Self-Defense
The jury was instructed that a murder is reduced to voluntary manslaughter if defendant acted in imperfect self-defense, which required that defendant actually believe he was in imminent danger of being killed or suffering great bodily injury and he actually believed that the immediate use of deadly force was necessary to defend against the danger and one or both of those beliefs was unreasonable. Defendant here contends that the trial court had a sua sponte duty to instruct the jury that it could consider his intoxication in determining if he had either belief.
Defendant acknowledges that "'[a]n instruction on the significance of voluntary intoxication is a "pinpoint" instruction that the trial court is not required to give unless requested by the defendant.'" (People v. Verdugo (2010) 50 Cal.4th 263, 295.) Defendant attempts to circumvent this binding precedent by arguing that because the trial court gave instructions that the jury could consider evidence of possible voluntary intoxication in deciding whether defendant had the intent to kill or he acted with premeditation and deliberation, it had a sua sponte duty to give the same instruction on the beliefs necessary for imperfect self-defense. The same argument was rejected by the California Supreme Court in People v. Rundle (2008) 43 Cal.4th 76, 145 [disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22] and People v. Clark (1993) 5 Cal.4th 950, 1021 [disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.22].
Penal Code section 22, subdivision (b) provides that evidence of voluntary intoxication is admissible only on the issue of whether defendant formed "a required specific intent . . . or . . . whether the defendant premeditated, deliberated, or harbored express malice aforethought." Defendant believing he is in imminent danger of being killed or seriously injured or believing that he needs to use deadly force immediately to protect himself from either is not a specific intent, nor premeditation, deliberation or harboring express malice.
Defendant concedes that no binding precedent exists holding that evidence of intoxication is relevant to whether one acts in imperfect self-defense. In fact, People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1453, 1455-1458 and Justice Brown's concurrence in People v. Wright (2005) 35 Cal.4th 964, 982-985, suggests otherwise. Be that as it may, this jury was not precluded from considering defendant's intoxication in determining whether he acted in unreasonable self-defense merely because it was instructed that it could consider intoxication in determining whether he had the intent to kill, an element of first degree murder and that voluntary intoxication cannot negate implied malice for second degree murder. (See People v. Boyer (2006) 38 Cal.4th 412, 468, fn. 39.)
Finally, there was no substantial evidence that defendant's intoxication caused him to believe he was in imminent danger of being killed or seriously hurt by the victim or to believe that the use of deadly force was necessary to prevent either danger. In fact, defendant's only statements about the victim were that the victim was his friend and was acting as his protector when the group of young men beat defendant up twice before the victim was stabbed. Thus, there was no evidence that defendant harbored either belief or that either was caused by his ingestion of alcohol. Therefore, defendant's "fall-back" argument that his trial counsel was incompetent for failing to request such an instruction fails. 3. Sentencing
In her report, the probation officer recommended that the sentencing court find defendant had the then present ability to pay appointed counsel fees in the amount of $150.00 and a booking fee of $79.86. At the sentencing hearing, defense counsel submitted on the probation report. The sentencing court ordered that defendant pay $150.00 for his legal representation and $79.86 for the cost of his booking. Defendant here contends that the orders was improper because he did not have notice, the court did not conduct a hearing to determine his ability to pay and the record lacks evidence of that ability.
We reverse the orders because the record contains no evidence to support the sentencing court's implied finding that defendant had the ability to pay, which is not forfeited by defendant's failure to object below. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397-1398, 1400.) Defendant declined to be interviewed by the probation officer, therefore, there is no information in the probation report about any assets or income he had at the time of the sentencing, and he had previously declared himself to be indigent so as to be appointed counsel. As to his reasonably discernable future financial position, up to a period of six months after sentencing (see Pen. Code, § 987.8, subd. (g)(2)(B)), defendant was sentenced to 15 years to life, plus one year, which began the day he was sentenced. Therefore, the record does not support the implied finding that his future financial position was such that he had the ability to pay. Because a source of funds at defendant's disposal to pay these fees is not even conceivable, in the interests of judicial economy, we will not remand the matter for a hearing on defendant's ability to pay. (See People v. Flores (2003) 30 Cal.4th 1059, 1058.)
DISPOSITION
The orders that defendant pay appointed counsel fees of $150.00 and a booking fee of $79.86 are reversed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
RICHLI
J.