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People v. Johnson

California Court of Appeals, Second District, Fourth Division
Apr 21, 2009
No. B205670 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. LA054760, Susan M. Speer, Judge.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


MANELLA, J.

Appellant Lionel Johnson appeals his conviction on one count of residential burglary, contending that the prosecutor wrongfully exercised a peremptory challenge to exclude an African-American juror, and that one of the three enhancements based on prior offenses was improperly imposed. Respondent concedes the latter point, but the parties dispute whether the enhancement should be stricken or the matter remanded for resentencing. We affirm the conviction, reverse the sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Appellant was charged in a one-count information with residential burglary in violation of Penal Code section 459. The information further alleged that in February 1984, appellant had suffered the following three prior serious or violent felony convictions within the meaning of section 1170.12, subdivisions (a) through (d) and 667, subdivisions (a)(1) and (b) through (i): (1) a conviction for burglary in case no. A149747; (2) a conviction for rape in case no. A805945; and (3) a conviction for burglary in case no. A805945.

Statutory references are to the Penal Code.

Although the information alleged that the convictions for all three charges occurred on February 24, 1984, the prosecutor later clarified that the conviction in case no. A805945 took place on January 25, 1984.

B. Evidence at Trial

The above summarizes the evidence from appellant’s second trial. Appellant’s first trial resulted in a hung jury.

On January 31, 2007, at approximately 12:00 p.m., Kenneth Levine who lived in an apartment building on Kester Avenue in Los Angeles observed a delivery person with a package knocking on the door and ringing the doorbell of the apartment of Cassandra Vago, located across from his. Twenty or thirty minutes later, Levine again heard sounds of knocking and the doorbell ringing and observed a different person in front of Sago's apartment. Moments later, he heard noises which sounded like wood being pried. Looking through the peephole in his door, Levine saw a large African-American male apparently attempting to break into Vago’s apartment using a screwdriver. Levine moved away from the door and called 911. Levine described the intruder as 6 foot 2 or 3 inches and 280 pounds and wearing dark colored jeans and a polo shirt.

Officers responding to the 911 call observed appellant exiting the building through a side door. Appellant ran, but was caught after a brief pursuit and taken to a location where he was identified by Levine. When taken into custody, appellant had a large screwdriver in his waistband.

Appellant was not wearing a polo shirt when taken into custody and was shorter and weighed less than described in Levine’s 911 call. In addition, Levine did not recall the intruder having braids, as appellant had when arrested.

Cassandra Vago testified that when she left for work at 5:45 a.m. on the morning of January 31, her front door and kitchen window were closed and locked. When she returned at 1:00 p.m., the door was damaged, the window was open and the screen was removed. In addition, the apartment was in disarray. Numerous valuable items, such as her jewelry and laptop had been moved. A UPS package she had been expecting was inside the apartment, opened.

Appellant’s vehicle was found approximately one building away from the location of the break-in and two miles from appellant’s residence. No stolen property was found in his vehicle or his residence. Police criminalists lifted fingerprints from various surfaces inside Vago’s apartment and compared them to appellant’s, but none matched.

C. Verdict and Sentencing

The jury found appellant guilty as charged of one count of burglary. Appellant admitted the three prior convictions. The court granted a Romero motion and struck two of the three prior “strikes” based on the age of the strikes, appellant’s age, the fact that appellant had been free from criminal activity for more than a decade, and the evidence indicating appellant had made an effort to ensure the apartment was not occupied before entering. For the burglary, appellant was sentenced to the midterm of four years doubled. The court added three separate five-year enhancements for each of the three prior convictions, for a total sentence of 23 years.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

DISCUSSION

A. Peremptory Challenge of African-American Juror

The primary issue raised on appeal concerns the prosecutor’s peremptory challenge of an African-American juror, one of only two African-Americans in the panel and the only African-American woman. Appellant contends the trial court failed to make a sincere and reasoned attempt to evaluate the prosecutor’s explanation for excusing the juror, and that the prosecutor’s “implausible” hypothetical propounded to the juror proved that the prosecutor’s justification for the challenge was a sham. Appellant also contends that the dismissed juror’s responses to questions related to the the prosecutor’s hypothetical were similar to answers given by a juror who remained on the panel. We disagree.

1. Voir Dire

We begin by relating the pertinent portions of the voir dire. Prospective Jury No. 5 (also identified as Juror No. 1902), an African-American woman, was a senior administrative assistant for the chief administrative and legal officer of a corporation. She had served as a juror in a previous civil case, which had reached a verdict. She was one of the first fourteen prospective jurors to be seated inside the jury box and questioned.

After the court inquired into the jurors’ backgrounds and after defense counsel concluded his voir dire, the prosecutor asked the prospective jurors some additional questions. He first asked all the jurors what their reaction would be if no scientific evidence linked the defendant to the crime. He gave as a hypothetical a situation where four witnesses testified they saw the defendant steal a loaf of bread, but there were no fingerprints or other physical evidence, and asked whether anyone would have a problem voting for conviction under that scenario. Prospective juror no. 3 volunteered a story about a friend who had been wrongly accused of robbery, because the juror’s friend had been standing behind the perpetrator and the cashier, recognizing him as having been in the store at the time, identified him in a line up. After that exchange, prospective juror no. 2, prospective juror no. 10 and prospective juror no. 13 raised their hands to indicate an affirmative response to the prosecutor’s question and the prosecutor asked them follow up questions.

Prospective juror no. 2, a pilot with prior jury experience, initially said whether he would vote for conviction would depend on the evidence presented, but then said he would have no problem convicting. Prospective juror no. 10, a financial consultant with no prior jury experience, said “if there was more than one witness it would be pretty convincing. If there was one, I would think not.” She also said that the presence of corroborating evidence would make her more comfortable voting for conviction.

Prospective juror no. 13, an accountant with no prior jury experience, said: “[I]f there was just one witness, I would want to know more evidence. And then if there was more than two witnesses and there were other information, I probably would feel more comfortable making a decision.” Asked if she would feel comfortable convicting based on the testimony of a single eye witness, prospective juror no. 13 said: “That’s a hard question for me to really answer honestly. I don’t know how I would feel. I think it would depend on the case.”

The prosecutor next turned to jurors who had not raised their hands or volunteered information when presented with the hypothetical. He asked prospective juror no. 9, an administrative assistant who had served on four juries, both civil and criminal: “If there was a discrepancy between two people, two different people’s testimony, just some difference, how do you think you would deal with that in your mind? What would you think?” She responded: “I’d have to look at the whole picture and decide from there.”

The prosecutor then turned to prospective juror no. 5, and the following exchange occurred: “[Prosecutor]: How about Juror No. 5, what would you do if there was a discrepancy between someone’s testimony, how do you think you’d resolve that in your mind?

“Prospective Juror No. 5: I’d have to hear each person’s testimony in order to make a decision.

“[Prosecutor]: Let me go back to the hypothetical. You’ve got four people that see the crime. Everybody’s generally consistent. But one witness says he had red shoes on, the guy, I know it, I saw it. He had these weird red shoes on. And all the other three witnesses say... he had white shoes. And the guy that they caught had white shoes. [¶] So now you’ve got four witnesses being consistent on every fact in the case, but one guy thinks he had red shoes on. Even though he says that’s the guy, yeah, but he was wearing red shoes and all the other witnesses say no, he was wearing white shoes. How do you feel about that in your mind, would you be able to convict that person number five?

“Prospective Juror No. 5: No, I’d have to hear testimony from the people who saw the white shoes.

“[Prosecutor]: Like I said, three people testify, you believe them all, all four of them you believe. The only difference in their testimony really is just this one guy [who] says I know the guy that stole the bread had red shoes on, the other three said white shoes on. Would you be able to convict the defendant?

“Prospective Juror No. 5: Well, no, I don’t think so.

“[Prosecutor]: You don’t think you would convict him?

“Prospective Juror No. 5: Well, I’d have to hear, you know, each person’s side, you know, more of the testimony.

“[Prosecutor]: Okay. Well,... what makes you think you would have trouble convicting that person?

“Prospective Juror No. 5: That I would have trouble?

“[Prosecutor]: Yeah.

“Prospective Juror No. 5: I’d have to hear why people with the white and red shoes, why would they -- I’d have to hear the entire testimony. I can’t make a decision from just one person’s opinion.

“[Prosecutor]: What if the Court gave you an instruction that said a witness[es]’ testimony should not be discredited simply because there are discrepancies between [the] witness[es]’ testimony and that often discrepancies are -- that’s kind of the normal human nature, people sometimes see things different. Sometimes people are positive of something and they are not right. [¶] Would that make it easier for you having that instruction and following that Court’s instruction? Do you think you’d be able to convict the defendant under that scenario?

“Prospective Juror No. 5: Yes, it depends, you know.

“[Prosecutor]: Would you say that would be a major concern of yours even though its not really material to the facts of the case, it’s just a difference, kind of red shoes/white shoes, would that be a problem for you, do you think?

“Prospective Juror No. 5: No, it wouldn’t be a problem.”

After several rounds of challenges, the prosecutor exercised a peremptory challenge against prospective juror no. 5. Defense counsel made a Wheeler/Batson motion. The basis given for the motion was prospective juror no. 5’s race. Defense counsel did not ask the court to compare prospective juror no. 5 with any jurors the prosecutor had not challenged.

By this point, of the jurors who had been the focus of the prosecutor’s hypothetical questions, the prosecutor had excused prospective juror no. 3 and prospective juror no. 13. Prospective juror no. 2 had been excused by the defense in the first round. Prospective juror no. 10 was excused by the defense later, before the prosecutor passed on the jury. Prospective juror no. 9 was ultimately seated as a juror.

Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.

The court looked out over the remaining panelists and found a prima facie case of a wrongful challenge, noting that prospective juror no. 5 was the only African-American juror in the box, one of only two prospective African-Americans in the panel, and the only female African-American. The court asked the prosecutor to explain the challenge.

The prosecutor stated: “[Prospective juror no. 5] was the juror that I actually asked questions regarding discrepancies in testimony. I believe the scenario was a hypothetical where... every witness is consistent pretty much on every material fact in the case; however, one witness said the person had red shoes and the other three witnesses were consistent and said that... the person had white shoes. [¶] And she just seemed -- she was kind of going back and forth, but ultimately it seemed like that would be a big problem for her if that was a discrepancy even though these witnesses were consistent in ever[y] other fact or part of the case. [¶] I told her what if she was instructed otherwise that small discrepancies would be expected and at that point, again, she just kind of seemed like it would be a problem. I think she may have ultimately said she could follow the law, but I don’t know that those were her exact words. [¶] But it just seemed to me like [if] there was a discrepancy in witnesses’ testimony even if it’s to a nonmaterial type of thing that that would cause problems for her.”

The defense responded: “If there are discrepancies in [the] testimony that cause a problem, that’s perfectly normal and expected and that’s the juror’s job to try and thrash that out. So I still don’t see any reason to challenge her except for the fact that she’s Black.”

The court denied the motion, explaining: “I’m going to accept the prosecutor’s reasons as credible and honest. [Prospective juror no. 5] did seem to equivocate about that issue more than I think a more reasonable juror would have. Certainly didn’t rise to challenge for cause, but I think it’s enough to establish a [peremptory.]”

Defense counsel followed up with a motion for mistrial, which was also denied.

2. Standards for Resolving Batson/Wheeler Motions

Both the federal and state Constitutions prohibit use of peremptory challenges to exclude prospective jurors based on race. (Batson v. Kentucky, supra, 476 U.S. at p. 97; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) “Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.” (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)

The inquiry which must be undertaken to resolve a Batson/Wheeler motion is “well established.” (Lenix, supra, 44 Cal.4th at p. 612.) “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.]” (Id. at pp. 612-613.)

A prosecutor asked to explain a challenge “must provide a ‘“clear and reasonably specific” explanation of his [or her] “legitimate reasons” for exercising the challenges.’” (Lenix, supra, 44 Cal.4th at p. 613, quoting Batson, supra, 476 U.S. at p. 98, fn. 20.) “‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’” (Lenix, supra, at p. 613, quoting People v. Arias (1996) 13 Cal.4th 92, 136.) “A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection.” (Lenix, at p. 613.)

In the third stage of the Wheeler/Batson inquiry, “‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’” (Lenix, supra, 44 Cal.4th at p. 613, quoting Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) “In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as lawyer and bench officer in the community, and even the common practices of the advocate and the office who employs him or her.” (Lenix, at p. 613.)

“Review of a trial court’s denial of a Wheeler/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 for exercising peremptory challenges “‘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.]’” (Lenix, supra, 44 Cal.4th at pp. 613-614, quoting People v. Burgener (2003) 29 Cal.4th 833, 864.)

3. The Trial Court’s Determination

Appellant contends that the prosecutor’s reasons for excusing prospective juror no. 5 must have been disingenuous because she was the only one to whom the “implausible” red shoe/white shoe hypothetical was given. As the above recitation of the prosecutor’s voir dire demonstrates, he asked all of the jurors a similar hypothetical, seeking to ascertain whether the lack of physical evidence or discrepancies in the evidence would cause them to hesitate to convict. The prosecutor’s reasons for this line of inquiry were understandable. The primary witness, Levine, had provided the 911 operator with a description of the perpetrator that did not precisely match appellant. There were no matching fingerprints, and no stolen property was found in appellant’s possession. The defense could be expected to use -- and did use -- Levine’s description and the lack of physical evidence in an effort to create reasonable doubt. The record reflects that there had already been one mistrial, despite appellant’s unexplained presence at the scene, his attempt to flee when the police arrived and his general similarity to Levine’s description. Accordingly, the prosecutor had a valid reason for seeking to identify jurors who might not vote for conviction where the prosecution’s case was dependent on a single eyewitness whose testimony contained several discrepancies.

Appellant contends, apparently based on the brevity of the trial court’s ruling, that the court “failed to make a sincere and reasoned attempt to evaluate the prosecutor’s explanation for excluding prospective juror [no.] 5.” That the court was able to evaluate the prosecutor’s explanation without a lengthy exposition is not grounds for reversal. The issue is “‘whether the trial court [found] the prosecutor’s race-neutral explanations to be credible’” which can be measured by “‘the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rational has some basis in accepted trail strategy.’” (Lenix, supra, 44 Cal.4th at p. 613.) The reviewing court need only find evidence in the record that “(1) the trial court considered the prosecutor’s reasons for the peremptory challenges at issue and found them to be race-neutral; (2) those reasons were consistent with the court’s observations of what occurred, in terms of the panelist’s statements as well as any pertinent nonverbal behavior; and (3) the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges.” (Id. at pp. 625-626.) The prosecutor stated that he excused prospective juror no. 5 due to her equivocal answer to his hypothetical question. The court agreed that the juror’s responses had indicated equivocation. The court’s own observation, coupled with its express finding that the prosecutor’s reasons were “credible and honest,” demonstrate that the court made the requisite determination.

Finally, appellant contends that although trial counsel did not raise the comparative juror analysis issue, this court should compare prospective juror no. 5 to unchallenged prospective juror no. 9, who had said, in response to the prosecutor’s question about witness discrepancies: “I’d have to look at the whole picture and decide from there.” In the past, our Supreme Court had determined that comparative juror analysis should not be undertaken for the first time on appeal. (See Lenix, supra, 44 Cal.4th at p. 611, citing People v. Johnson (2003) 30 Cal.4th 1302, 1324-1325.) However, following the United States Supreme Court’s decision in Miller-El v. Dretke (2005) 545 U.S. 231, the court re-evaluated the rule and concluded that although “comparative juror evidence is most effectively considered in the trial court where the defendant can make an inclusive record, where the prosecutor can respond to the alleged similarities, and where the trial court can evaluate those arguments based on what it has seen and heard,” it is no longer precluded. (Lenix, supra, at p. 624.)

Comparative juror analysis does not, however, assist appellant here. Appellant directs our attention to a single juror -- prospective juror no. 9 -- but ignores prospective jurors no. 2, no. 3, no. 10 and no. 13, all of whom indicated some measure of uncertainty about convicting in the hypothetical situations set forth by the prosecutor, and all of whom were either challenged by the prosecutor or removed by the defense before the prosecutor passed on the jury. We note, moreover, that prospective juror no. 9 had considerably more jury experience than the others in the panel, and the prosecutor might legitimately have presumed she would have more realistic expectations with respect to discrepancies in the evidence. In any event, we will not presume the prosecutor had illegitimate motives where only one of the multiple jurors with responses similar to prospective juror no. 5’s remained on the panel.

B. Sentencing Issues

The court imposed three separate five-year enhancements under section 667, subdivision (a)(1) for each of appellant’s three prior convictions. The parties agree that because two of appellant’s past convictions were brought and tried as a single case, the court erred in imposing three separate five-year enhancements. (See § 667, subd. (a)(1) [“[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately”]; People v. Wiley (1995) 9 Cal.4th 580, 585 [requirement in section 667, subdivision (a)(1) that predicate charges must have been brought and tried separately “‘demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt’”].) The parties differ with respect to the appropriate remedy. Appellant contends we should strike five years from his sentence. Respondent urges we remand for resentencing.

In situations such as the present one where one aspect of the sentence is invalid, the proper procedure is to remand to permit the court to reconsider its sentencing choices. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151.) However, we disagree with respondent’s assertion that the court may, after remand, reconsider its decision to strike two of appellant’s prior strikes and impose a 25-years-to-life sentence. Double jeopardy precludes imposition of a greater sentence after a successful appeal except in the case of an unauthorized sentence, which is not at issue here. (People v. Torres (2008) 163 Cal.App.4th 1420, 1432; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) Moreover, the court’s stated reasons for striking the strikes -- their age and appellant’s ability to avoid illegal activity for a lengthy period -- remain unaffected by this appeal.

DISPOSITION

The judgment is affirmed in part and reversed in part. The sentence is vacated. The matter is remanded for resentencing in accordance with the views expressed in this opinion.

We concur: WILLHITE, Acting P. J., SUZUKAWA, J.


Summaries of

People v. Johnson

California Court of Appeals, Second District, Fourth Division
Apr 21, 2009
No. B205670 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Johnson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LIONEL JOHNSON, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Apr 21, 2009

Citations

No. B205670 (Cal. Ct. App. Apr. 21, 2009)