Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03095.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In the spring of 2006, Defendant Brian Jones and codefendant Charles Harvey wreaked havoc on a stretch of Highway 12 near Rio Vista, California. Engaging in a high-speed chase with a California Highway Patrol officer, running cars and a “big rig” truck off the road, and shooting a woman, the two ultimately forced two victims out of their pickup truck at gun point and continued to flee in the stolen vehicle. Later, when defendant and Harvey were arrested, the police found personal items from the pickup truck, which belonged to the victims, scattered about the home where defendant and Harvey were found.
Convicted of multiple felonies, defendant appeals. Finding one of his claims meritorious, we vacate one of defendant’s convictions for receiving stolen property and affirm the remaining judgment.
Factual Background
At 7:00 p.m. on April 7, 2006, California Highway Patrol Officer Chris Parker attempted to stop a Ford Explorer he saw speeding on Highway 12 near Rio Vista. The Explorer stopped, but as Officer Parker walked toward the vehicle, he “heard a high RPM of the engine of the Explorer and it took off away from [him].” Officer Parker returned to his car and a high-speed chase ensued, but due to unsafe conditions, Officer Parker soon stopped his pursuit and lost sight of the vehicle.
Nyidra Walker was traveling on Highway 12 when the same Explorer hit her vehicle, causing it to spin into oncoming traffic. She saw a man driving the Explorer before he fled the scene. Charles Seals, also driving along Highway 12, heard a noise behind him and saw Walker’s car spinning out of control behind him. The Explorer nearly ran into Seals’ big rig, and then ran yet another car off the road. Seals saw that the Explorer was “sparking” and the driver’s side tire was flat, but the driver continued to flee.
Richard Posada and Martha Rodriguez were traveling the same highway when the Explorer passed them, turned around, and stopped in the middle of the road. They noticed damage to the front end of the Explorer and a blown tire on the driver’s side. Two men, later identified as defendant and Harvey, got out of the Explorer and, armed with guns, approached Posada and Rodriguez. The two men attempted to take Posada’s car by force, but Posada drove away.
As Posada drove away, a shot was fired through the back window of Posada’s car, hitting Rodriguez in the shoulder. Posada looked into his rearview mirror and saw defendant and Harvey grab someone out of a white pickup truck and “jump in.” That same truck soon passed Posada.
Rocky Richardson and Joseph Hogue, also traveling on Highway 12, saw defendant and Harvey approach Posada and Rodriguez. Seeing the wrecked Explorer, Hogue believed defendant and Harvey had been in an accident and were attempting to get help, so he slowed down.
As Richardson and Hogue slowed down, defendant and Harvey, still armed, approached them. Carrying an assault rifle and aiming a pistol at Richardson, defendant ordered Richardson out of the truck; Harvey stood by Hogue’s door with a rifle. Richardson and Hogue complied and got out of the truck. Hogue then saw the truck “burn out” and drive away.
Later that night, Stockton Police Officer Ben Padilla was dispatched to a residence in Stockton, where he found Richardson’s truck in the driveway. He requested additional units, who arrived and secured the perimeter of the house. SWAT officers were also called; prior to their arrival, Officer Padilla saw defendant and Harvey come out of the house. When the two men heard the police radios, however, Harvey ran back into the house and defendant attempted to run away.
Defendant was apprehended outside; Harvey remained inside the house for some time before he finally surrendered. Sacramento County sheriff’s detectives took victims Richardson and Hogue to a field show-up in Stockton, near the house at which the truck was found, where they identified defendant and Harvey as the carjackers. A subsequent search of the residence where the truck was found revealed numerous personal items belonging to Richardson and Hogue--items that were in Richardson’s truck when it was stolen.
Defendant was charged with two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a) --counts one & two), one count of attempted carjacking (§§ 664/215, subd. (a)--count three), two counts of carjacking (§ 215, subd. (a)--counts four & five), possession of an assault weapon (§ 12280, subd. (b)--count six), felon in possession of a weapon (§ 12021, subd. (a)(1)--counts seven & eight), and two counts of receiving stolen property (§ 496, subd. (a)--counts eleven & twelve). It was further alleged that defendant personally used a firearm (counts one to five) and caused great bodily injury to Martha Rodriguez (counts one to three) (§ 12022.53, subds. (b)-(d)), and had six prior convictions for serious felonies pursuant to section 667, subdivision (a).
Hereafter, undesignated section references are to the Penal Code.
Trial began in February 2007. On April 10, 2007, a jury found defendant guilty of attempted carjacking as alleged in count three, carjacking as alleged in counts four and five, possession of an assault weapon as alleged in count six, being a felon in possession of a firearm as alleged in counts seven and eight, and receiving stolen property as alleged in counts eleven and twelve. The jury also found true the firearm use allegations with regard to counts three, four, and five. The court declared a mistrial on counts one, two, and nine because the jury could not reach a verdict on those counts.
Discussion
I. Batson/Wheeler
Defendant contends the trial court erred “in finding the defense had not made a prima facie case of improper racial discrimination” during jury selection. On this record, we cannot determine whether there was error.
On the final day of jury selection, defendant made a Batson/Wheeler motion challenging the prosecution’s exercise of a peremptory challenge to excuse Ms. S., an African-American woman. Defendant argued he “didn’t have very many opportunities to get anyone of color, let alone African-American individuals on the jury.” Counsel for codefendant Harvey added that Ms. S., who had been an employee of the San Juan Unified School District for 10 years, was a “perfect impartial juror.”
Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258.
The court invited the prosecutor to respond but he declined unless the court was ruling that the defense had made a prima facie case of racial discrimination; the court was not. The court thus ruled as follows: “All right. Based on my view of the manner in which voir dire was conducted, the exercise of the challenges of the People, the racial background of the challenges exercised by the People, and certainly in context with the number of challenges that were exercised and the manner that they were, there was nothing that leads me to conclude or even to infer that it was a race-based motive for the exercise of the challenge, and I do not find that the prima facie showing has been made based on this record.”
Under Wheeler and Batson, the use of peremptory challenges to remove a prospective juror because of that juror’s race or ethnicity is unconstitutional discrimination. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at pp. 86-87.)
To establish a Wheeler/Batson claim, three steps are involved. First, a defendant must make a prima facie case by showing that the “‘totality of the relevant facts’” gives rise to a discriminatory inference. (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129], quoting Batson, supra, 476 U.S. at p. 94.) If that is done, the People must then show race-neutral reasons for the challenge. (Johnson, supra, 545 U.S. at p. 168.) And if that is done, the trial court must then decide whether purposeful racial discrimination has been proved. (Ibid.)
Here, the trial court determined that defendant had not cleared the first hurdle--he had not made a prima facie case. “The trial court’s determination that no prima facie showing of group bias has been made is subject to review to determine whether it is supported by substantial evidence. [Citation.] We examine the record of the voir dire and accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand.” (People v. Jenkins (2000) 22 Cal.4th 900, 993-994, fn. omitted.)
Defendant argues in his opening brief that the prosecutor “struck the only African-American who made it into the jury box.” Yet, there is no evidence in the record to support that assertion. In fact, on this record, we cannot discern the racial makeup of the jury venire or the petite jury. With the exception of Ms. S., we cannot discern the racial identity of any juror excused by the prosecution or the defense or the racial identity of those jurors selected. Accordingly, there is no evidence the prosecution utilized this one peremptory challenge to eliminate African-Americans from the jury.
II. Receipt of Stolen Property
Pursuant to California Rules of Court, rule 8.200, defendant joins codefendant Charles Harvey’s claim on appeal that one of their convictions for receiving stolen property should be vacated because “the prosecution proved only one act of theft against two victims.”
As they did in response to defendant Harvey’s appeal, the People concede the error. Having considered the law and reviewed the record, we accept the People’s concession. Property belonging to two different victims, but taken simultaneously, constitutes a single offense. (People v. Smith (1945) 26 Cal.2d 854, 859; People v. Lyons (1958) 50 Cal.2d 245, 275; People v. Mitchell (2008) 164 Cal.App.4th 442, 461-462.) Accordingly, we will affirm the conviction on count eleven and reverse the conviction on count twelve.
III. Cruel and/or Unusual Punishment
Defendant further contends his sentence violates the state and federal constitutional prohibitions against cruel and/or unusual punishment. Defendant failed to raise this objection in the trial court. He has thus forfeited the claim on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
IV. Clerical Error
Defendant and the People agree there is a clerical error in the abstract of judgment. Following the probation department’s recommendation at sentencing, the trial court sentenced defendant to 39 years six months to life on count three, plus 29 years to life on counts four and five and an additional 25 years to life on count six, all to be served consecutively to defendant’s sentence on count three. The court also imposed a concurrent sentence of 25 years to life on count seven. Pursuant to section 654, the court stayed imposition of sentence on counts eight, eleven, and twelve. As a result, defendant was sentenced to an aggregate term of 122 years six months in state prison.
The abstract of judgment correctly lists the sentences imposed; however, it miscalculates the aggregate term to be 147 years six months in state prison. We shall order the trial court to amend the abstract of judgment to reflect the correct aggregate term of 122 years six months.
Disposition
The conviction on count twelve is hereby vacated. The judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment in light of this court’s decision regarding the conviction on count twelve and to reflect the correct aggregate term, imposed at sentencing, of 122 years six months in state prison. The trial court is further directed to deliver a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J., HULL, J.