Opinion
C055331
2-10-2009
THE PEOPLE, Plaintiff and Respondent, v. LANDON BYRON JACKSON, Defendant and Appellant.
Not to be Published
The facts underlying this appeal involve a shooter sporting a blue "do-rag," blue beanie, and a blue jacket, who jumped out of a car and announced something like "this is a Meadowview killer" before he opened fire on a group of friends, at least one of whom was a member of the Meadowview Bloods street gang. In addition to the shooters pronouncement, which strongly suggested the shooting was gang related and performed for the benefit of the shooters gang, a prosecution expert testified regarding the criminal activities of the Valley Hi Crips, opining that the shooting was for the gangs benefit and defendant was a validated Crips gang member. The expert was permitted to testify regarding five incidents of prior uncharged misconduct allegedly involving defendant. While we conclude the prosecutors theory for admission of the testimony was erroneous and the testimony itself suspect under sound rules governing gang expert opinion, any error did not render defendants trial fundamentally unfair and, consequently, did not violate his federal constitutional right to due process. (Estelle v. McGuire (1991) 502 U.S. 62, 70 ; People v. Partida (2005) 37 Cal.4th 428, 439.) As a result reversal is not required, because we believe it is clear beyond a reasonable doubt the jury would have found defendant guilty even in the absence of the disputed testimony based on compelling evidence, including three eyewitness identifications as well as physical evidence. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
FACTS
At the conclusion of the first joint trial of defendant and his former girlfriend, Kaydee Wormington, two separate juries deadlocked. Both defendant and Wormington had testified, and that testimony was read to the jury during defendants second trial.
At the retrial, the only real issue was who shot at siblings Alicia and Ricky Canady on December 13, 2004, both of whom were standing in the driveway of William Jeffersons house. The basic story line is not disputed. A group of friends, at least one of whom was a member of the Meadowview Bloods street gang and some of whom were smoking marijuana, were socializing in front of William Jeffersons house. A yellow Mustang, driven by a young white woman, stopped in front of the house. A passenger asked, "Cuz where are you all from?" After Ricky responded "this is Meadowview," the passenger shouted something like, "this is a Meadowview killer" and began shooting into the group. Alicia was shot twice in the leg.
There were weaknesses in two of the identifications to be sure. One of the two witnesses who identified defendant was high on marijuana at the time of the shooting and unable to identify the driver; the second was mentally impaired. The third witness, one of the victims of the attempted murder and a Meadowview Blood, positively identified one of defendants little "homeys," Corey Gaines, as the shooter and testified that defendant was not the person who opened fire on the day of the shooting.
Sixteen-year-old William Jefferson smoked three or four marijuana "blunts" a day and had smoked marijuana just before the shooting. The marijuana made him feel lazy and slowed him down. He could not identify the color or length of the drivers hair, but he did see a bald-headed black male in the rear passenger seat behind the driver. He could not say if the shooter had any facial hair. He told investigators the shooters gun was black; at the first trial he said he was not sure if it was a semiautomatic or a revolver, and at the second trial he testified that it was a chrome semiautomatic. During cross-examination, he refused to read any more of his prior testimony and had to be admonished that he did not have the liberty to choose what he wanted to look at.
Jefferson was not sure if he had been smoking before he was shown a photographic lineup. He picked defendant out of the lineup two-and-a-half months after the shooting, and at trial he identified defendant as the shooter. He claimed he had seen defendant once, maybe six months to a year before the shooting, when he was riding a bus and a friend of his had pointed defendant out. He was unable to identify the driver.
The record is replete with references to Michael Morgans limitations as a witness. The prosecutor emphasized that there was a considerable lag in time between her asking him a question and his response. The court gave her some leeway to lead her witness, over the defense objection, because of Morgans difficulty in understanding the questions. He was easily confused and often contradicted either his earlier testimony or his answers in the first trial. For example, he testified the Mustang was coming from one direction and later testified it came from the opposite direction. He could not read maps. Yet he too identified defendant as the shooter, both in a photographic lineup and at trial.
Ricky Canady had disavowed his gang affiliation with the Bloods, was married, attended community college full time, and was seeking work at the time of trial. Soon after the shooting, he spent the night with his girlfriend. That night, Corey Gaines, also known as P.K. for Piru Killer, spent the night at the same apartment. Canady, who was drunk, thought Gaines was the shooter. The next day they hung out together and Canady concluded, based on Gainess behavior, that he must not have been the shooter after all. Two years later he changed his mind again and identified Gaines as the shooter. At trial, he insisted that defendant was not the man who shot at him.
Whatever the limitations of the testimony offered by Jefferson and Morgan that we might accept, we cannot discount the significance of the testimony offered by defendants girlfriend and percipient witness, Kaydee Wormington. Wormingtons testimony from the previous trial was read into the record after she asserted her Fifth Amendment right to remain silent at her second trial.
On December 12, 2004, Wormington and her father purchased a yellow Mustang with a manual transmission. Her father gave her instructions on how to operate a stick shift because she had never driven one before. The following day she picked up defendant and Corey Gaines in her yellow Mustang. Wormington testified that defendant told her to stop the car in front of a house with a group of African-Americans in the driveway. She complied.
She further testified that Corey Gaines and defendant got out of the car. It is unclear from her testimony if Gaines got completely out of the car, but it is clear that, according to Wormington, he was back in the car before she heard any shots. Defendant, however, was out of the car when she heard one of the males respond "Meadowview," and then she heard four or five shots and saw someone fall to the ground. During cross-examination, she stated that defendant shot the female victim.
Defendant jumped back into the car, yelling at her, "[B]itch, drive. Go. Go. Drive." She testified she stalled the car twice and then drove away. Defendant ultimately ordered her to get into the passenger seat and he then drove.
Wormington testified at some length how defendant had abused her and called her names like "bitch, slut, whore, [and] punk." He would slap, choke, and "man-handle" her. She explained she stopped the car out of fear of his reprisal if she disobeyed his order. She testified she wanted out of the relationship but conceded she continued to call him many times a day after the shooting. On one occasion over a month after the shooting, she picked him up at the hospital because he was crying and told her he needed her. She talked to him frequently even after her arrest. The prosecutor elicited testimony during cross-examination of Wormington that her allegations of abuse were made only after she attended a domestic violence class in jail and belatedly admitted she was, in fact, with defendant at the time of the shooting.
Someone dropped a blue cell phone and left it at the scene of the crime. Kaydee Wormington was the subscriber for that phone. She testified she had given it to defendant as a birthday gift.
Defendants testimony from the previous trial was also read back to the jury after he too invoked his right not to testify. Defendant admitted he did "hang with" and considered himself a member of the Valley Hi Crips. The prosecution introduced many photographs of defendant "throwing up" gang signs, dressed in blue, and accompanying other known gang members. Jefferson testified the shooter was wearing a blue do-rag, a blue beanie, and a blue jacket; Ricky Canady testified the shooter was wearing a blue do-rag and "all blue" clothing.
A gang expert testified to the customs and practices of African-American gangs in general and the Valley Hi Crips in particular. She explained, as gang experts customarily do, gang psychology and sociology, including such fundamentals as: Crips wear blue and utilize their left sides (e.g., an earring in the left ear), hand signs are the mark of group solidarity or challenge, a soldier in a gang is "someone who on a regular basis will put in work for the gang" and thereby attain status within the gang hierarchy, violence breeds fear and respect, daytime shootings are particularly effective for maintaining control in neighborhoods, and a Crips reference to a Blood as "cuz" as well as the inquiry "where are you from?" are considered challenges.
The primary activities of the Valley Hi Crips, according to the expert, are homicides, attempted homicides, robberies, narcotics dealing, and stealing vehicles. The expert testified that in December 2004 the Meadowview Bloods and Valley Hi Crips were engaged in a gang war. She reported that defendant was a validated Crip gang member, and she believed he had attained status as a soldier for the Valley Hi Gangster Crips. She opined that the shooting was for the benefit of the Valley Hi Gangster Crips, who would be given credit within the gang community for catching Meadowview Bloods "slipping," meaning they were caught without their guns. Defendant does not challenge any of the gang-related testimony of the expert, including the evidence of two predicate offenses committed by gang members and personally investigated by the expert.
At times during the trial, counsel or witnesses referred to the Valley Hi Crips as the Valley Hi Gangster Crips.
Defendant does, however, challenge the experts hearsay testimony regarding five incidents of prior uncharged misconduct in which he was allegedly involved. The admissibility of the prior uncharged misconduct was hotly contested at trial. In a lengthy pretrial brief, the prosecutor argued that defendants past conduct "is relevant to his gang membership and more importantly, to issues of intent that the People must prove pursuant to PC 186.22(b)(1). The enhancement places on the People the burden to prove that Jackson maintained the specific intent to promote, further or assist the Crip street gang when he committed his crime for the benefit of, at the direction of, or in association with the gang."
In the same brief and at the hearing on the admissibility of the evidence, the prosecutor expressed an expansive notion of the admissibility of otherwise inadmissible hearsay as a foundation for a gang experts opinion. Relying on People v. Valdez (1997) 58 Cal.App.4th 494, 506-507, she argued "the expert may recite otherwise inadmissible hearsay in open court, and the extent of such testimony is limited only by the discretion of the trial court, and reviewable only on an abuse of discretion standard." The use of otherwise inadmissible police reports, she believed, was not an issue for the court and the damage could be remedied through cross-examination or instructions to the jurors that they were not to consider the evidence for the truth of the matters stated.
At the hearing, the prosecutor went even further, proposing that there are special rules for the admissibility of otherwise inadmissible hearsay in gang cases. She argued, "I think that in many different areas of criminal law there are special rules. In sex crimes, theres 1108. Molest cases there are special rules of evidence. [¶] And in gangs we have the basic gang allegation, which really in effect opens the door regardless of — whether a defense lawyer likes it or not, it places in issue the defendants specific intent. His motive behind why he commits the charged crime."
Again the prosecutor alluded to the special rules for gang cases. "[W]hen you read the cases, including Gardeley, they are really characterizing what comes in under gang expert as character evidence. [¶] . . . [¶] So I do think there are special rules and special applications when it comes to the gangs that you dont see in a regular case when we are discussing 1101 evidence. [¶] . . . [Defense counsel] can say that Im piling it on or trying to pile it on, but the bottom line is that Im able to pile it on. And Im entitled to it, to pile it on under the law. A law allows me to do that."
The court allowed the expert to testify at some length and in specific detail about each of five charges she obtained from various police reports. The expert based her opinion that defendant was a soldier for the Valley Hi Gangster Crips, in part, on the five following allegations:
1. On October 14, 2003, defendant allegedly was in the back seat of a car with other Valley Hi Crips. He was wearing a blue shirt under a blue sweater with blue shoelaces and purportedly placed a handgun behind some salsa in a 7-Eleven store. A loaded .45-caliber semiautomatic handgun was found in the car. Defendant admitted that both guns were his and suggested he needed them for protection because "[y]ou never know whats gonna go on out here."
2. On August 19, 2004, there was a drive-by shooting in the South Sacramento neighborhood of Meadowview, an area known as Blood territory. The occupants of one of the cars, a black Honda Accord with flip-up lights, were wearing blue bandanas over their faces. At least one of the victims was a Meadowview Blood.
3. Six days later, defendant allegedly was driving the same black Honda. The owner, one of defendants girlfriends, purportedly said she had loaned the Honda to defendant on August 19. Defendant abandoned the car and attempted to escape. When apprehended, he allegedly told a police officer he was a former member of the Valley Hi Crips. There was a fresh bullet hole in the trunk of the car.
4. On November 24, 2004, occupants in two groups of cars were reported to be shooting at each other. One of the cars was a white Chrysler Sebring. Police officers, according to the report, found defendants license, a cell phone, and registration papers naming Kaydee Wormington as the owner.
5. On February 21, 2005, Justin Starks was approached by three males later allegedly identified as Corey Gaines, Dimetric Mosley, and defendant. According to Starks, defendant recognized him and appeared initially hesitant to participate in the robbery, but when Starks resisted Gainess advance, defendant shot him twice in the back and accidentally shot Gaines as well. Defendant purportedly took Gaines to the hospital.
Defendant was not charged with any of these offenses. The expert testified that these incidents supported her opinion that defendant was a soldier in the Valley Hi Gangster Crips because "[h]e is a person whos out there where handguns are involved, people are getting shot" and he is "out with other gang members committing violent crimes."
DISCUSSION
I
Expert Testimony in the Prosecution of Street Terrorists
To address the state of crisis caused by violent street gangs in California, the Legislature sought to eradicate criminal activity by gangs, in part by enhancing gang members sentences when their crimes are committed "for the benefit of, at the direction, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b)(1); see California Street Terrorism Enforcement and Prevention Act, Pen. Code, §§ 186.20 et seq.) Many jurors are unfamiliar with the intricacies of gang subcultures, including the meaning of their special vernacular, their code of conduct, their symbols, their values, and their objectives. As a result, the prosecution of gang members would be crippled without expert testimony on such matters as the culture and habits of gangs (People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931); whether and how a crime was committed to benefit or promote a gang (People v. Villegas (2001) 92 Cal.App.4th 1217, 1227); rivalries between gangs (People v. Williams (1997) 16 Cal.4th 153, 192-193); gang-related tattoos, gang graffiti, hand signs, and gang colors and attire (Ochoa, supra, 26 Cal.4th at pp. 438-439; People v. Loeun (1997) 17 Cal.4th 1, 6-7); and the primary activities of a specific gang (People v. Galvan (1998) 68 Cal.App.4th 1135, 1139-1142; People v. Gardeley (1996) 14 Cal.4th 605, 620 (Gardeley)).
Evidence Code section 801 provides a vehicle for admitting gang expert opinion. Pursuant to section 801, "[a]n expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. [Citation.] The opinion must be based on matter perceived by, or personally known, or made known to the witness at or before the hearing that is of the type that reasonably may be relied on in forming an opinion on the subject to which the experts testimony relates." (People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).) An expert may offer an opinion in response to a hypothetical question based on facts shown by the evidence. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1197.)
As noted above, the prosecution took an extremely expansive view of the admissibility of gang expert testimony under Evidence Code section 801 and Gardeley, supra, 14 Cal.4th 605. Does Gardeley, as the prosecution argued, create a special rule of admissibility for hearsay evidence of a gang members prior acts of uncharged misconduct as long as that evidence is introduced as a basis for an expert opinion and, as the trial court believed, it appears reliable? Though we conclude that any error was harmless, we reject this interpretation of Gardeley.
In Gardeley, the Supreme Court upheld the admissibility of a gang experts opinion, including his testimony recounting hearsay. "Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an experts opinion testimony must be reliable. [Citation.] For `the law does not accord to the experts opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the experts opinion is no better than the facts on which it is based. [Citation.] [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony." (Gardeley, supra, 14 Cal.4th at p. 618.)
The trial court, like the court in Killebrew, believed that Gardeley compelled admission of the five incidents of uncharged misconduct because, in the courts estimation, the hearsay met the threshold test of reliability. (Killebrew, supra, 103 Cal.App.4th at pp. 652-653.) But admission of the evidence was not compelled. The trial court overlooked the Supreme Courts admonition to exercise its discretion "`to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein. (People v. Coleman (1985) 38 Cal.3d 69, 91 . . . .) This is because a witnesss on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into `independent proof of any fact." (Gardeley, supra, 14 Cal.4th at p. 619.)
In light of our disposition, we need not address whether admission of the hearsay evidence violated defendants right to confrontation as that right has been clarified by the Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 .
Thus, we reject the prosecutions notion that Gardeley creates a special rule of admissibility for the admission of a gang experts testimony. The prosecutions analogies to Evidence Code section 1108 and child molestation cases are inapt because the Legislature in those cases created an express exception to allow the admission of otherwise inadmissible evidence. The prosecutor has pointed to no comparable statute allowing gang expert opinion whether or not the evidence is inflammatory, unduly prejudicial, necessary, or cumulative. Nor does Gardeley condone the admission of hearsay that, under the circumstances presented, effectively transforms inadmissible matter into independent proof of any fact. Rather, Gardeley reaffirms the long-standing principle that a trial court must exercise its discretion to assure that a gang expert does not become a mere conduit for inadmissible and extraordinarily prejudicial hearsay.
There is no doubt that hearsay evidence about gangs is admissible to buttress a gang experts opinion that the crime is "gang-related" or committed to "benefit" the gang. However, here the contested evidence is not about the gang, but about defendant. And the evidence is not merely about defendants membership in the gang, association with gang members, or conformity with gang customs, but about five specific incidents of uncharged misconduct. The hearsay was relied on by the prosecution not to prove the shooting was "gang-related" or to "benefit" the gang, but as evidence of defendants specific intent.
Notwithstanding limiting instructions by the court, there is a danger that gang-related propensity evidence of uncharged misconduct will reflect a defendants bad character and jurors will infer that he would have been more likely to commit the charged offense. Evidence Code section 1101 bars admission of such propensity evidence unless it is admitted to prove intent, identity, motive, etc. Defense counsel urged the prosecutor to clarify whether she was seeking admission of the evidence based on section 1101. He pointed out, however, that even if it was being offered under section 1101, "that would have to come from evidentiary sources that are properly admissible and not multiple layers of hearsay through an expert."
The prosecutor pointed out that in the first trial she did not "establish or use per say [sic] 1101. We used primarily information — detailed information from Wendy Brown as a basis for opinion." This was a prelude to her explanation of the special rule of evidence in gang cases. She later argued, "when you read the cases, including Gardeley, they are really characterizing what comes in under a gang expert as character evidence," and she repeated her understanding that "there are special rules and special applications when it comes to the gangs that you dont see in a regular case when we are discussing 1101 evidence."
The prosecutor could not have been more wrong. The Supreme Court has been unrestrained in its condemnation of admitting evidence of uncharged misconduct to show criminal propensity except under the narrowly defined circumstances set forth in the Evidence Code. (See Evid. Code, §§ 1101, 1108.) In People v. Smallwood (1986) 42 Cal.3d 415 (Smallwood), for example, the court wrote: "The harm which flows from allowing the jury to hear evidence of other crimes is too well known to require much restatement. In People v. Thompson (1980) 27 Cal.3d 303 . . ., this court rigorously enforced the rule that evidence of other crimes may never be admitted to show the accuseds criminal propensity." (Smallwood, at p. 428.) The court reiterated the rationale for the rule: "`"The primary reasoning that underlies this basic rule of exclusion is not the unreasonable nature of the forbidden chain of reasoning. [Citation.] Rather, it is the insubstantial nature of the inference as compared to the `grave danger of prejudice to an accused when evidence of an uncharged offense is given to a jury. [Citations.] As Wigmore notes, admission of this evidence produces an `over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts. [Citation.] It breeds a `tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses . . . ."" (Ibid.)
Smallwood predates the enactment of Evidence Code section 1108 in 1995. (Stats. 1995, ch. 439, § 2.)
Gang evidence itself is similarly dangerous. "California courts have long recognized the potentially prejudicial effect of gang membership. . . . [¶] Thus, as a general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative." (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Here, of course, gang evidence was relevant to proving the gang enhancement. But when that evidence involved not only evidence related to the customs and habits of gangs, and not only defendants affiliation with the gang in question, but unproven and uncharged allegations that he committed specific gang-related crimes in the past, the court erred by failing to exercise its discretion to weigh the highly inflammatory and prejudicial impact on the jury.
Defendant insists the probative value of the expert testimony was weak and cumulative. The Attorney General disagrees and posits that, in any event, the risk of prejudice was ameliorated by the courts limiting instruction to the jurors wherein they were admonished not to consider the hearsay evidence for the truth of the matter asserted, but only to evaluate the basis upon which the experts testimony was based. We need not resolve this dispute because any error in admitting the expert testimony was clearly harmless under the standard of review applicable to this case given the overwhelming evidence of defendants guilt.
Prejudice
Defendant claims the erroneous admission of the hearsay evidence of his uncharged misconduct was so serious as to render his trial fundamentally unfair and thereby violate his federal constitutional right to due process. We disagree.
"To prove a deprivation of federal due process rights, [defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial." (Albarran, supra, 149 Cal.App.4th at p. 229.) "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913; see People v. Partida (2005) 37 Cal.4th 428, 439.) "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (Kyles v. Whitley (1995) 514 U.S. 419, 434 .)
But even if defendant persuaded us the admission of the evidence violated the due process requirement, we find the error harmless. Constitutional violations in the admission of evidence are subject to federal harmless-error analysis under Chapman, supra, 386 U.S. at p. 24. "`[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. [Citation.] The harmless error inquiry asks: `Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error? [Citation.]" (People v. Geier (2007) 41 Cal.4th 555, 608.)
After carefully reviewing the entire record, we find the error harmless under the Chapman standard. The evidence that defendant was the shooter was compelling. Eyewitnesses Jefferson and Morgan, albeit with their limitations as percipient witnesses fully exposed during cross-examination, both identified defendant as the shooter. Jefferson saw a yellow Mustang trying to leave, and heard the clutch trying to engage, after a bald-headed black male got into the rear drivers side. After two attempts, the driver of the Mustang was able to engage the clutch and left the scene rapidly, "[b]urning rubber." Defendants girlfriend, Kaydee Wormington, owned a yellow Mustang. She admitted she stalled the car twice before leaving the scene.
Most damning was Wormingtons testimony. The jury heard her testimony from the first trial that she saw defendant get out of the Mustang and approach a group of African-Americans, and heard him ask where they were from. A heavyset African-American male responded, "Meadowview," and she heard gunshots and saw someone fall to the ground. Defendant jumped back into the car, yelling "bitch, drive." Wormington stalled the car. She testified she finally got the car started, drove to the end of the street, and stalled the car again. Defendant then told Wormington to get in the passenger seat, and he got out of the car, went around to the drivers seat, and drove off.
In addition to three eyewitness identifications, someone dropped a blue cell phone at the scene of the shooting, and defendant admitted Wormington had given him the phone as a gift.
We recognize that one of the victims, Ricky Canady, identified Corey Gaines as the shooter, and defendant testified that on the day of the shooting he told Wormington to take Gaines out in her yellow Mustang. But Canady did not identify Gaines until two years after the shooting. Until then, he refused to cooperate with the investigation. We do not believe his belated identification was credible enough to overshadow the other three eyewitness identifications, including, most importantly, Wormingtons testimony that defendant fired four or five shots at the group of people standing on the driveway.
On this record, we conclude defendant would not have obtained a more favorable verdict in the absence of the evidentiary error. As we have repeated throughout this opinion, his participation in the gang was undisputed. The erroneously admitted evidence of gang-related misconduct reinforced his image as a gangster, but it was not unlike his own admissions and the photographs of him as an active participant in gang life. Moreover, the jury was appropriately admonished not to consider the evidence for the truth of the alleged misconduct, and we presume the jury followed the courts instructions. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) In sum, the positive identifications by three witnesses, coupled with the evidence that defendant left his phone at the scene, renders it clear beyond a reasonable doubt that the jury would not have acquitted defendant even if the prior misconduct evidence had not been admitted.
II
Defendant contends he was denied his federal constitutional right to equal protection (Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson)) and his state constitutional right to a trial by a jury drawn from a representative cross-section of the community (People v. Wheeler (1978) 22 Cal.3d 258, 265-266 (Wheeler)) when the prosecutor exercised a peremptory challenge to excuse an African-American woman from the jury venire. We reject his claim.
"The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims." (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
Here the trial court ruled that the exercise of the peremptory challenge to the sole African-American on the venire established a prima facie case. As a result, the prosecutor offered three permissible, race-neutral bases for the challenge. The prosecutor explained: "I have three grounds that cause me concern with Miss [C.]. And, actually, they were asked — that I had to really ponder with this particular juror because she appeared to be a conservative. She appeared visually to me to be a conservative lady. She has a good job, and she has no children. I thought that might be a plus, and, actually, there wouldnt be any baggage.
"But the thing that caused me concern were [sic] her feelings. She initially said that she had strong feelings about the juror system, the criminal system and initially went into how the system didnt work. She was rehabilitated to a certain extent by the Court, certainly enough to get over a cause challenge. But what I heard from her is, she served on a panel, apparently not — Reached a verdict, which must have been not guilty, which caused her some concern because she felt that the person was probably guilty — That the prosecutor had not proven their case, she stated.
"And the bottom line was, she felt that — These are her words — `Innocent people in jail and some `guilty people on the street.
"The `guilty people on the street didnt affect me too much, but the `innocent people in jail caused me concern because in a non-guilty verdict, a red flag goes up in my mind, in the application of reasonable doubt.
"In the particular case, I wouldnt want a misapplication to be applied and have her go back to those strong feelings of that — That Mr. Jackson would be one of those innocent people in jail.
"Something else that caused me concern was that her nephew was prosecuted in Sacramento County, in what I would consider a remote time ago, in a fraud arrest. It was three, four years ago.
"And the last thing that caused me quite a bit of concern was that she had a partner — Her current partner was prosecuted in a D.V., domestic-violence case, two years ago. This is even more recent than her nephew. It was in San Joaquin County.
"This person Im not sure, male or female, but this person was prosecuted, and she felt from that, and from her guilty plea, that there was no opportunity for both sides to present their case.
"That, to me, is a very, very defense-oriented statement in itself.
"In the particular case, I am working with [defense counsel] regarding Miss Wormingtons transcript. At least the Court has some indication of some of the subjects raised in that transcript. Although a lot of the detail value of Miss Wormingtons domestic-violence allegation are [sic] probably not going to be included in a read-back, I feel that there is at least the framework of the D.V. defense that she brought in in the first trial that will not be stricken by this Court, because she was absolutely cross-examined on it by [defense counsel].
"Because of that, there is an issue as to how this woman would feel about another woman making allegations that involve concerns about domestic violence.
"So, I mean, with all that, I felt comfortable, very comfortable in that."
Once the race-neutral explanation is offered, "the trial court must determine whether the opponent of the strike has proved purposeful racial discrimination." (People v. Fiu (2008) 165 Cal.App.4th 360, 391 (Fiu).) "At the third stage of the Wheeler/Batson inquiry, `the issue comes down to whether the trial court finds the prosecutors race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutors demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proferred rationale has some basis in accepted trial strategy. [Citation; fn. omitted.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the courts own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office who employs him or her." (Lenix, supra, 44 Cal.4th at p. 613.)
The trial court made a "sincere and reasoned effort to evaluate the prosecutors explanations for her excusal of the prospective juror[]." (People v. Jordan (2006) 146 Cal.App.4th 232, 246.) The trial court explained, at some length: "Counsel is allowed to use the totality of the circumstances, including the fact that counsel has challenged other similarly situated members of the majority group on an identical or comparable ground. So, essentially, thats what you have here.
"You know, one of the things that [the prosecutor] hangs her hat on is the fact that the affected juror, the juror in question, Miss [C.], had indicated, quite clearly, that, you know, that she felt that the person during her prior jury service was guilty. But the jury did reach a not-guilty verdict based on the law, and she did indicate that she had a problem with that.
"In fact, she went further by stating that there were innocent people in jail and guilty people on the street. And, yes, I did try to rehabilitate her, and I do think that if counsel had made a motion for cause to exclude her, I would have denied such a motion.
"But I am — I do find it relevant that, based on that reason alone — And [the prosecutor] actually challenged other similarly situated members of the majority group — In other words, of Caucasian, because, lets face it, the majority of the jurors that we have here today, even the ones in the box, the majority of the jurors are Caucasian, and she did challenge them on identical or comparable grounds.
"In fact, I recollect that, Miss [A. P.] having some sentiments, but certainly Miss [R.] was clearly there. I mean, she said — In fact, she said there was another juror who said it, `and Im just like her. And when I referenced Miss [C.], and I talked about gut feelings about guilt or innocence, then she indicated, yes, that was the conversation.
"And I will note — And the reason I brought that up is because I will note that [the prosecutor] did exclude, did exclude [P.] — Actually, her name is [P. A.]. (Sic)
"She did exclude Miss [A.], and she also did exclude [N. R.]. So if one were to look at this objectively she essentially excluded two members
"Oh, let me say this. Miss [R.] did not appear to be Caucasian, though; she actually appeared to me to be either Japanese or Korean, although her name certainly is not a Japanese surname nor a Korean surname. But I do find that Miss [P.] — But Miss [A.] certainly was Caucasian. And she was excluded for that reason.
"And you know, quite frankly, that is a non-discriminatory justification. And I think its an accurate justification as well, you know, based on the affected jurors responses to the question.
"And also, you know, she did have some involvement with the justice system, via her nephew and via her partner that, you know, it was pretty clear that she was not satisfied with the outcome at least of a domestic-violence case. But she did indicate she could set it aside and be fair and impartial to both sides.
"But I do find that the prosecution has offered non-discriminatory justification in all — In three of these instances, first of all, the feelings about the justice system, i.e., reaching a not-guilty verdict and feeling that the defendant was guilty.
"Her nephew was prosecuted in Sacramento three or four years ago presumably by the very same office that [the prosecutor] worked for, and she had a partner in the DV case two years ago in San Joaquin, and she was not satisfied with the outcome.
"So I do find that there was a — I do find that they are non-discriminatory justifications. So I do find at this time that the Wheeler/Batson motion must fail, and so it is denied."
Given the trial courts sincere and reasoned effort to evaluate the merits of the prosecutors explanations, we give deference to the courts ability to distinguish "`bona fide reasons from sham excuses" and review the ruling on "purposeful racial discrimination for substantial evidence." (Fiu, supra, 165 Cal.App.4th at p. 391.) The record provides ample evidence to support the trial courts factual findings. (People v. Lewis (2008) 43 Cal.4th 415, 469.)
Defendant urges us to conduct a comparative analysis to evaluate whether the prosecutors stated reasons for exercising a peremptory challenge are truthful or pretextual. "Comparative juror analysis is evidence that, while subject to inherent limitations, must be considered when reviewing claims of error at Wheeler/Batsons third stage when the defendant relies on such evidence and the record is adequate to permit the comparisons." (Lenix, supra, 44 Cal.4th at p. 607.) Defendants argument notwithstanding, a comparative analysis supports the trial courts ruling.
The prosecutor excused three jurors who had expressed dissatisfaction with the criminal justice system. Skepticism about the fairness of the criminal justice system is a valid ground for excusing a juror. (People v. Gray (2005) 37 Cal.4th 168, 192; People v. Calvin (2008) 159 Cal.App.4th 1377, 1386.) Juror [C.] was the most emphatic. She expressed her disappointment with the criminal justice system on multiple occasions, including her prior jury service and her partners recent experience. She believed that many innocent people were incarcerated while the guilty went free. She expressed her regret that, as a juror, she was compelled to acquit a defendant, even though in her gut she believed him to be guilty. The prosecutor was justifiably reluctant to have such a skeptic on the jury.
Two other jurors were excused for the same reason. Juror [P.] had a similar experience as a juror wherein "the burden of proof was not proven" and the defendant was acquitted. Similarly, Juror [R.], who had served as a juror in a battery case, had a "gut feeling" that the defendant was guilty, but based "on evidence and the testimony," the jury acquitted. In all three cases, the prosecutor excused prospective jurors who gave tangible evidence of their disappointment in the criminal justice system. It was their unpleasant or unsatisfactory experiences, rather than any racial prejudice, that motivated the prosecutor to dismiss them.
Defendant minimizes the significance of this factor, however, and emphasizes that Jurors [C.] and [P.], like two other jurors, had relatives who had been prosecuted. Because the prosecutor did not excuse either of the two other jurors, defendant argues the prosecutors exercise of a peremptory challenge to Juror [C.] was racially motivated. Not so. Defendants selective use of some, but not all, of the factors affecting the wisdom of choosing particular jurors highlights the inherent limitations of a comparative analysis. While it is true that jurors who were not excused had relatives who had been prosecuted, as did Juror [C.], neither of them expressed dissatisfaction or skepticism about the fairness of the criminal justice system. But Juror [C.]s blunt indictment that "I just felt like when we finished, the system really hadnt worked" provided an adequate racially neutral justification for excusing her.
In sum, the prosecutor offered credible race-neutral explanations for challenging Juror [C.], who happened to be African-American. The trial court carefully evaluated those explanations and considered how the prosecutor had used the same criteria to evaluate other jurors as well. Thus, the trial courts ruling is entitled to deference and its factual finding that the challenge was not racially motivated is supported by substantial evidence. We find no Batson/Wheeler error.
III
Defendant accuses the prosecutor of six different instances of misconduct. He asserts the judgment must be reversed based on a persistent pattern of misconduct. We disagree.
"In general, a prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury. [Citations.] But the defendant need not show that the prosecutor acted in bad faith or with appreciation for the wrongfulness of the conduct, nor is a claim of prosecutorial misconduct defeated by a showing of the prosecutors subjective good faith." (People v. Price (1991) 1 Cal.4th 324, 447.) A prosecutors conduct violates a defendants constitutional rights only when the pattern of behavior is so egregious it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Mendoza (2007) 42 Cal.4th 686, 700.)
Although a prosecutors duty to prosecute vigorously allows her to strike hard blows, defendant reminds us she "`is not at liberty to strike foul ones. It is as much [her] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. [Citation.]" (People v. Pitts (1990) 223 Cal.App.3d 606, 691.) Yet "`"when the claim [of misconduct] focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."" (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Tiffany Avent
Defendant asserts that the prosecutor attempted to dissuade Tiffany Avent from testifying, assumed facts not in evidence by examining her about an abusive relationship, and informed the jury she had not testified in the first trial to enable her to argue Avent had been forced to provide alibi testimony. None of defendants allegations constitute misconduct.
The prosecutor requested the court to appoint counsel for Avent before she testified because there was an allegation she had picked up defendant and Worthington after the shooting, and therefore she might have been an accessory after the fact. Moreover, she was recorded discussing her testimony with her husband, and although she told an investigator she was working on the day of the shooting, her work records revealed she was not. Counsel was appointed, Avent testified, and there was neither any misconduct nor prejudice arising from appointment of counsel.
Defendant objects to the prosecutors questions of Avent whether her husband had abused her and the prosecutors statement during closing argument that Avent had not testified at the first trial. Avent appeared at this trial for the first time as an alibi witness for defendant. During her examination, the prosecutor challenged her testimony and asked, "Miss Avent, do you feel compelled to testify as you have today because of an abusive relationship that youre in with your husband?" When defense counsels objection was overruled, the prosecutor repeated, "My question to you, do you feel compelled to testify as you have today based on any form of abuse that has existed between you and your husband?" Avent testified the last time her husband was incarcerated it was not because he had abused her and she did not feel compelled to provide defendant an alibi.
The prosecutor argued: "Tiffany Avent; is it consistent with the defendants testimony? Oh, you bet it is. And I guess thats why she wasnt asked to testify in the first trial. [¶] And what happened? Shes talked to the defendant about 15 times. And regardless of whether shes — realize [sic] shes being coached or not, and I believe she does, the point now is she is an alibi witness."
The prosecutor is free to challenge a defense witnesss credibility and to urge the jurors to draw inferences from the evidence. "It is not . . . misconduct to ask the jury to believe the prosecutions version of events as drawn from the evidence. Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each partys interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument, and that is essentially what the prosecutor did here." (People v. Huggins (2006) 38 Cal.4th 175, 207.)
The fact remains that defendant presented a new alibi for his second trial. Avent testified she had only recently come forward and thus it was implicit she had not testified in the first trial. The prosecutor properly challenged her motivation to testify and properly urged the jury to reject a belated and unlikely alibi. We would not characterize the prosecutors examination or argument as misconduct, let alone an egregious pattern of misbehavior that compromised a fair trial.
Personal Plea
Defendant contends the prosecutor committed misconduct by making a personal plea for a guilty verdict. The prosecutor argued: "Im not standing in front of you, nor do I come into court and say to you, convict this man right here solely because hes a gang member. Because he is a gang member. And hes a very active gang member. Thats wrong. [¶] I want you to convict because you think he did it. Because he did do it. And its important to me that you tell him that you know that he did it."
Following defense counsels objection, the trial court told the prosecutor to "please keep the personal out of it" and admonished the jury that "What the attorneys say is not evidence."
A prosecutor can express belief in a defendants guilt as long as it is based on the evidence and does not suggest to the jury the belief is based on information outside the trial record. (People v. Mayfield (1977) 14 Cal.4th 668, 781-782.) Taken in context, the prosecutor was urging the jury to convict defendant because he shot the victims, not because he was a member of a gang. There is no suggestion her belief was based on anything outside the evidence admitted at trial. Moreover, after her innocuous and brief comment, the trial court promptly admonished the jury. This argument does not constitute misconduct.
Demographics and Sociology of Victims
During closing argument, the prosecutor lamented the consequences of the gang subculture including violence, drugs, and a lack of direction. She found this subculture depressing. In this context, she made reference to the difference in upbringing between the victims and defendant. While pointing out that this weeks victims could become next weeks perpetrators and vice versa, she mentioned: "But the Canadys are kids from a much different upbringing than Mr. Jackson. That much is clear. They are kids from the hood. Young people. They are much more ghetto in their upbringing. Less opportunities. [¶] And there are parts of this case that are very depressing, and thats one of em. Because they dont always or havent always choosen [sic] that lifestyle or that [sic] a continuation of what they were raised in, unlike this man who chose it. Who didnt get sucked in. He chose it."
Defendant contends that evidence of the relative circumstances of the two families was not admitted at trial and therefore the prosecutor committed misconduct by introducing facts during argument. (People v. Pinholster (1992) 1 Cal.4th 865, 948.) In a recorded conversation, defendant bragged about choosing a gang lifestyle. Moreover, the prosecutor may simply have been asking the jurors to infer a difference between the gangster victims and the gangster defendant. More importantly, the prosecutors isolated comment, even if based on evidence not before the jury, was unlikely to influence the jury. After all, the sociology of the gang subculture pervaded this trial and slight gradations between those who were "born into the hood" and those who volitionally chose it would have had little impact in deciding whether defendant was the shooter. This is not the kind of egregious misconduct that would necessitate a reversal.
Girls in the Hood
In a similar vein, defendant argues the prosecutor again introduced facts not in evidence when she argued there were young females "with no self-esteem getting used and getting passed around in this subculture. And thats depressing. I mean, if you have daughters, thats depressing to know that they can have that low of a self-esteem." She later connected to the theme of defendant by referring to his alleged "slappings [of] Kaydee Wormington" and asserting that "[t]his is a very sexist subculture. Very sexist. There is all the bravado. Bravado, machismo, everything involved in this. She gives some very specific examples of being abused by Landon Jackson."
Wormington had testified that defendant became aggressive, obsessive, jealous, and abusive; called her names like "[b]itch, slut, whore, punk"; and sometimes slapped and choked her. We agree with the Attorney General that the prosecutors argument was a fair comment on the evidence. Her testimony provided sufficient evidence to infer a sexist subculture.
We reject defendants claim that either individually or cumulatively the prosecutor crossed the line from forceful advocacy to improper misconduct. None of the incidents we have addressed come close to the egregious misbehavior that jeopardizes a fair trial.
DISPOSITION
The judgment is affirmed.
We concur:
HULL, J.
CANTIL-SAKAUYE, J.