Opinion
B230674
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. MIKE SHAWRON MORGAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA074729)
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Modified and Affirmed.
Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Mike Shawron Morgan guilty of the second degree robberies of John Cho and Shinho Cho in violation of Penal Code section 211,separately finding defendant personally used a firearm to commit both offenses under section 12022.53, subdivision (b). Defendant was also found guilty of being a felon in possession of a firearm and teargas (§ 12021, subd. (a)(1), § 12403.7, subd. (a)) and the unlawful use of teargas (§ 12403.7, subd. (g)). After defendant waived his right to a jury trial on the recidivist allegations, the trial court found defendant had been convicted of a total of four serious or violent felonies under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two serious or violent felonies (§ 667, subd. (a)), and served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for a term of 75 years 4 months to life, consisting of two consecutive terms of 25 years to life under the three strikes law for the robbery convictions, plus a total of 13 years four months for the two weapons use enhancements. Concurrent sentences of 25 years to life were imposed for the other three convictions. The trial court additionally imposed two five-year enhancements for the convictions under section 667, subdivision (a)(1), and two one year enhancements for the prior prison terms.
All statutory references are to the Penal Code unless otherwise indicated.
These allegations relate to case Nos. YA016319 (Jul. 5, 1994) and RIF084670 (Sept. 29, 2000).
In his timely appeal, defendant contends: (1) he was denied his state and federal constitutional rights to a representative and impartial jury because the trial court erroneously granted the prosecution's motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) to prevent the defense from exercising a peremptory strike; (2) there was constitutionally insufficient evidence to support the jury's finding of personal firearm use in connection with the robbery of Shinho Cho; (3) the court erroneously failed to instruct the jury sua sponte with the "lesser included enhancement" of being armed with a firearm as to the robbery counts; (4) the court improperly imposed recidivism enhancements under sections 667, subdivision (a), and 667.5, subdivision (b), for the same prior convictions; and (5) the court improperly imposed a $40 court security fee for his convictions based on the law at the time of sentencing, rather than the $30 fees mandated at the time he was convicted of the underlying offenses.
We agree with the final two contentions and therefore order the trial court to modify the judgment to strike the imposition of the two section 667.5, subdivision (b) enhancements and reduce the total section 1465.8 security fee to $150. In all other respects, the judgment is affirmed.
STATEMENT OF FACTS
On April 7, 2009, at approximately 9:00 a.m., John Cho and his father Shinho Cho were opening The UPS Store on South Normandie Avenue in Gardena. John was the owner. Shinho went outside to move his car to the back of the store. An African-American male entered the store wearing a black baseball cap, a white "hoodie" sweatshirt, and black athletic pants. The cap's brim was lowered so that John could not see his face. The male approached the cash register and said, "This is a robbery . . . give me all the money." John told him to stop "joking." In response, the male removed his hands from the hoodie, showing that he wore latex gloves and had a handgun tucked in his waistband.
The male repeated his demand for money. John was afraid for himself and his father, who was coming into the shop. The Chos complied with the robber's order that they move to the back of the store and lie down. Out of fear, John told the robber that all the money was in the registers at the front of the store. The robber had John open the registers, which contained a total of $420. John moved away and crouched down as the robber ordered. The robber sprayed John's face with pepper spray and fled. John called 911 to report the robbery.
The UPS Store was equipped with eight interior surveillance cameras. John identified the robber, Shinho, and himself from photographs taken by the cameras during the robbery. He also identified a customer, Frank Zucconi, who entered the store during the robbery. A video recording from the cameras was played to the jury. From the videos, John identified when the robber showed him the handgun. Although John never saw the robber hold the gun in his hand during the robbery itself, while viewing the video, he did see the robber holding the gun. The robber pulled the gun out of his waistband and held it at his side when he took John and Shinho to the back of the store. The video accurately depicted the robbery.
On cross-examination, John testified that the police drove him to a location near the 405 freeway to identify a suspect, but the person did not look like the robber. Later that day, the police took him to a strip mall in a different location for a field show up, but he could not identify the suspect (defendant), whose clothes did not match those of the robber. John could not make an in-court identification of defendant as the robber; he could only see his chin under the baseball cap.
Shinho recalled that when he entered the store after moving his car, he saw the robber, who wore a white sweatshirt and baseball cap which covered most of the robber's face. The robber pushed him into the store's back room. Shinho was ordered to lie down on the floor. He saw the robber's gun just before the robber pepper-sprayed him in the face.
Zucconi testified at the preliminary hearing, but died before trial. His prior testimony was read to the jury. He was John's friend and visited him the morning of the robbery. When he entered the store, he saw a stranger at the cash register—an African-American male who wore a white hat that covered most of his face. Zucconi identified the robber as the same person depicted in the photographs taken from the surveillance cameras. The robber's white sweatshirt had "Ecko" on it. As the robber turned and walked quickly out of the store, Zucconi pulled out his heart medication and faked a heart attack. He did not know if the robber was armed, but he was afraid. Zucconi saw the robber get into the front passenger side of a silver Dodge Magnum parked outside the store. It drove away quickly, southbound on Normandie.
The 2007 silver Dodge Magnum Zucconi identified as the getaway car was registered to defendant's father, but defendant was the owner and primary driver. Defendant told a police officer on February 10, 2009, that his father had bought the car for him some seven months earlier. Defendant, his girlfriend, and his father contributed to making the payments for the vehicle. Although both defendant and his girlfriend would drive the Magnum, defendant drove it "almost 100 percent of the time."
At the time of the robbery, Kenneth Naranjo was a loss prevention officer working at the Vons supermarket across the street from The UPS Store. At 9:09 a.m., Naranajo was parked in the Vons parking lot, investigating the theft of market shopping carts. Defendant's Magnum drove fast into the lot and parked in a space next to a shopping cart rack. There was a trash can next to the rack. The Magnum's passenger side door swung open. An African-American male was in the passenger seat with clothing on his lap. He dropped the clothing into the trash can. The male wore a blue and white top. After putting the clothes in the trash, he covered them with the trash that was inside the can. The male turned and faced Naranjo. Naranjo identified defendant in court as the person he saw in the Vons parking lot.
Naranjo also identified defendant at the preliminary hearing, although he had previously told the prosecutor that he would not be able to do so.
After defendant drove off, Naranjo called the police to report what he regarded as suspicious behavior. Officers responded to the scene, where Naranjo had remained. No one had gone into that area in the meantime. One officer put rubber gloves on his hands and took a sweater and sweat pants out of the trash can. Later, the officers drove Naranjo to a location to see if he could identify the car and suspect. A person was in custody, wearing the same clothing as the person at the trash can. From a distance of 40 feet, Naranjo could not be "100 percent" sure the suspect was the same person he had seen in the parking lot, but he was sure that the car was the same.
Both John and Shinho identified the sweat pants as the ones worn by the robber. John identified the sweatshirt.
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Officer Jason Hooker responded to the robbery scene shortly after 9:00 a.m. He smelled pepper spray and talked to John, Shinho, and Zucconi. He also watched the video from the surveillance cameras. An hour later, he went to the Vons parking lot, where he met with Naranjo and found a white hooded sweatshirt and black pants in the trash can.
Inglewood Police Officer Roberto Espinoza heard a broadcast description of the getaway car used in the Cho robbery at approximately 11:45 a.m. The officer saw defendant's Magnum parked in a no parking "red zone" at a strip mall on Crenshaw Boulevard. Defendant was leaning against the passenger side door and wearing a blue sweater. Officer Espinoza arrested defendant at the scene. There was no one inside the Magnum.
The Magnum was parked in front of a beauty supply store. Officer Espinoza entered the store and approached a woman, Wandisa Cowart, who had been at the window, watching the arrest. She said, "That's my boyfriend. What's going on?" While the officer was talking to the woman, a field show-up was being conducted outside with defendant.
Officer Hooker was subsequently informed that Inglewood police officers had detained a male (defendant) and a car (his Magnum), matching the description of the vehicle used in the Cho robbery. Defendant was arrested and taken to a hospital because of a staph infection in his right leg.
Forensic technician Kimberle Swobodzinski of the Gardena Police Department took a buccal swab from defendant to obtain a DNA sample. She obtained samples from the hooded sweatshirt and black sweat pants recovered from the Vons trash can. Forensic analyst Amber Sage of the Los Angeles Sheriff's Department, specialized in DNA analysis, examined defendant's DNA sample, along with samples of the sweatshirt and black sweatpants. The analysis showed that the DNA on the sweatshirt and sweatpants had profiles that were consistent with at least three individuals, including defendant. More specifically, the sweatshirt profile would match one in 2,833 Caucasians, 1 in 1,485 African-Americans, and 1 in 10,050 Hispanics. The sweatpants profile would match one in 1,880 Caucasians, 1 in 243 African-Americans, and 1 in 6,845 Hispanics.
Defense
It was stipulated that defendant was 5 feet, 7 inches tall. When defendant was booked after his arrest, he was listed as 5 feet, 7 inches tall and weighed 150 pounds. On March 21, 2009, defendant was treated at Long Beach Memorial Hospital for a three-inch abscess to the upper posterior area of his thigh. The blue shirt and shoes depicted in photographs as those worn by defendant at the time of his arrest could not be located at the time of trial.
Mitchell Eisen, Ph.D., testified as an expert regarding scientific research as to how the human memory works. According to the psychologist, most people recall quite well the major features of the events they observe, but they tend to make inferences about the minor details from plausible information. That is, people fill in memory "gaps" with post-event inferences, built around the major details, which were actually remembered. In that process, people can make mistakes. If a person fills in such a gap with a mistaken assumption, the person will typically incorporate that error when asked to recall the event. A "source monitoring error" occurs when a person receives plausible additional information from other sources and comes to believe that he actually perceived and remembered the new information. The longer a person views something, the better his or her memory is likely to be. There is a "dramatic drop-off memory in the first hours and days after the event." Conversely, person's memory is best when the event is fresh. It should not improve after a lengthy delay. Certainly, there should be no contradiction between the early and the later recollections. There is no strong scientific correlation between a person's confidence and the accuracy of a memory or identification.
Officer Steve Penko testified concerning the photographs of defendant taken at the hospital following the arrest. They accurately depicted the piercing in defendant's eyebrow and the tattoo on back of his neck, along with the earring in his left ear.
Howard Mattern testified as an expert in forensic audio/video analysis concerning the prosecution's video and photographic evidence.
Juanita McNeil, defendant's aunt, testified that she saw defendant at 9:23 on the morning of the robbery, when defendant arrived at her Gardena home to drive her to a 10:00 a.m. appointment at the Torrance Health Center on Del Amo Boulevard, approximately five and a half miles away. Also present in the car were McNeil's son and defendant's girlfriend Wandisa. In fact, Wandisa drove McNeil to the appointment in his car, taking less than 10 minutes. Defendant was in the passenger seat. When the appointment was over, at approximately 10:15 or 10:20, he drove McNeil to work in Long Beach at approximately 10:45 a.m. It would take approximately five minutes to drive from her home to the Vons on Redondo Beach Boulevard. According to McNeil, defendant would loan his car to her, as well as to Wandisa, her son, and others.
Vileecia Lachonte Wesson, defendant's wife and mother of their three children, testified that defendant owned a silver Dodge Magnum they purchased in late 2007 or early 2008 with the assistance of defendant's father. Defendant was the primary driver, but Wesson drove it too. The car was also driven by her sister, mother, and three or four friends approximately twice or three times a month. She disapproved of defendant loaning the car to friends. Wesson drove the Magnum the weekend before the robbery.
DISCUSSION
Batson/Wheeler
The Wheeler court held that a prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group membership violates a criminal defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276-277.) Batson held, among other things, that such a practice violates a defendant's right to equal protection of the laws under the United States Constitution's Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 97.) The Batson/Wheeler principles apply to defense peremptory challenges excusing jurors improperly on the basis of race, gender, or ethnic grounds. (United States v. Martinez-Salazar (2000) 528 U.S. 304, 315; People v. Willis (2002) 27 Cal.4th 811, 813-814 (Willis).)
Here, during voir dire, the prosecution interposed a Batson/Wheeler objection on the ground that the defense was systematically attempting to remove Asian-Americans from the jury after the defense exercised five or six of its ten peremptory strikes against persons of that ethnicity. The trial court found the prosecution had made a prima facie showing of discriminatory intent and retained jurisdiction over Juror No. 9153—the Asian-American prospective juror who was the subject of the final peremptory challenge (the others having been excused). After defense counsel offered her reasons for excusing the six prospective jurors believed to be Asian-American, the court accepted counsel's race-neutral explanations as to some, but found the reasons offered for three of the prospective jurors, including Juror No. 9153, were not credible or not otherwise legitimate. The court therefore granted the Batson/Wheeler motion and ordered Juror No. 9153 reseated.
Defendant contends he was denied his state and federal constitutional rights to a representative and impartial jury because the trial court erroneously granted the prosecution's Baston/Wheeler motion to prevent the defense from exercising a peremptory strike as to Juror No. 9153, who was a member of the panel that heard defendant's trial.
In order to place the ruling regarding Juror No. 9153 in context, we summarize the voir dire as to all prospective jurors implicated in the prosecution's Batson/Wheeler motion. Juror No. 5785 was self-employed and married with two children. Her son was studying pre-law in college. At the age of 16, he and friends were attacked by gang members at a park in Torrance, but was not seriously injured. The attackers were caught and tried. Juror No. 5785 said she had strong feelings against gang members, but could be fair. She had served in a civil jury that reached a verdict. However, she understood that the burden of proof in a criminal trial was different, and she could follow it.
Juror No. 1148 was married with three children. She was a medical records clerk; her husband was an unemployed fish cutter. Two of her nephews were police officers, one in the Long Beach Police Department and the other in a department outside Los Angeles County. She would not be biased in favor or disfavor of law enforcement witnesses. At first, she said she would need more than one witness to convict. After listening to the trial court and the prosecutor explain the law, however, she agreed that she would not need two witnesses if she believed one beyond a reasonable doubt.
Juror No. 6396 was a single, "younger male," who worked in the accounting department of a sporting goods company. He had no jury experience. Upon learning the names of the potential witnesses, he gave the trial court a note, expressing concern that he might know the victim, John Cho. Juror No. 6396 understood the witness had a common surname, but he was acquainted with many Korean-Americans in Los Angeles and Torrance. The court inquired further and informed the entire venire that the Cho witnesses were 41 and 71 years old, and they might own a UPS store. Juror No. 6396 apparently did not know them.
The defense exercised three peremptory challenges, none of which appeared to have been directed at Asian-Americans. Counsel passed on her next peremptory challenge and accepted the jury as it was constituted. After a prosecution challenge, the trial court filled the 18-person panel with new prospective jurors to replace those who had been excused.
Juror No. 1890 was an account executive for a freight company. When the defense asked about bias in favor of police officer witnesses, Juror No. 1890 said he would be inclined to give more credibility to such a witness because of his or her law enforcement status. When pressed as to whether he could follow the trial court's instructions to the contrary, however, the prospective juror said he would abide by the court's directives.
Juror No. 9153 was married with an adult son. She and her husband were retired. She had sat on three criminal juries and one civil; there were verdicts in all four trials. The prospective juror said she understood the difference between criminal and civil burdens of proof. Her home was burglarized in 1970 and the juvenile culprits were caught. That experience would not influence her in defendant's trial.
The defense asked Juror No. 3151whether he could be impartial, despite defendant's admission of being a convicted felon. Although there was some ambiguity in his response, it appears that he would presume defendant was innocent and properly decide the matter by applying the guilt-beyond-a-reasonable-doubt standard.
Trial counsel exercised her fourth peremptory challenge to Juror No. 5785. Her fifth challenge was to Juror No. 9971, who apparently was not Asian-American. The defense's next challenges were to Jurors No. 3151, No. 1148, No. 6396, No. 1890, and No. 9153. At that point, the prosecutor made a Wheeler motion outside the jury's presence on the ground that the defense was striking Asian-American jurors—five or six of the ten peremptory strikes. The prosecutor asked the trial court to maintain jurisdiction over Juror No. 9153 and order him back the following day.
At the Wheeler hearing, the trial court provided defense counsel with the identification numbers of the six prospective jurors of Asian-American descent that she had challenged. Counsel explained that she dismissed Juror No. 5785 because she had been on a civil jury. Also, because her son had been attacked by gang members, counsel thought the prospective juror's antipathy toward gang members might extend to all felons. Counsel also noted that Juror No. 5785's son was a pre-law major. Regarding Juror No. 1890, counsel said "defendant did not care for him" and "defendant felt that he responded poorly body-language-wise to [counsel's questions] about felon and presumption of innocence in a negative way." Regarding Juror No. 1148, counsel was concerned that the prospective juror had two nephews who were police officers and might be biased in favor of the officers testifying in the case.
Counsel did not remember Juror No. 3151 but had noted that, like Juror No. 1890, his body language and facial expressions were "not positive" concerning status as a felon and the presumption of innocence. Regarding Juror No. 6396, counsel was concerned about his strong ties to the Asian-American community, based on his note to the trial court. Finally, with regard to Juror No. 9153, counsel noted that she had been on at least one civil jury and might not apply the criminal standard of proof. Also, she had been the victim of a burglary, spoke with a strong accent, and seemed "quite timid."
The trial court found defense counsel's explanation as to Juror No. 6396 credible. It also credited counsel's explanations as to Jurors No. 5785 and No. 1148. On the other hand, the court found counsel had not rebutted the presumption of improper use of strikes as to Jurors No. 1890, No. 3151, and No. 9153, and ordered Juror No. 9153 reseated. As to Juror No. 1890, the court explained that the proffered explanation amounted to an improper delegation of the attorney's professional judgment to her client. The court did not recall any body language as to Juror No. 3151. Regarding Juror No. 9153, the court acknowledged that the prospective juror's having been a crime victim was a facially race-neutral basis for exercising a strike, but implicitly found that basis was pretextual. The manner in which counsel had systematically stricken Asian-American jurors argued strongly in favor of racial bias against those who shared the same ethnicity as the victims. In contrast, the purported race-neutral explanation seemed thin, given that the challenged juror had served on three criminal juries and one civil, and that suffering a residential burglary "does not necessarily mean they they [sic] can't be or won't be fair in another type of case."
In response to defense counsel's assertion that the panel contained other Asian-Americans, despite her challenges, the trial court found there were three Asian-Americans among the prospective jurors seated at the time of its ruling—Jurors No. 6708, No. 3683, and No. 9153. Additionally, the prospective juror who would have taken the place of Juror No. 9153 was also Asian-American. The court rejected trial counsel's argument that the presence of three Asian-Americans on the panel showed that she was not trying to "kick[] them all off." With Juror No. 9153 reseated, the parties accepted the panel.
The standard for reviewing a Batson/Wheeler motion is well established. As set forth in People v. Lenix (2008) 44 Cal.4th 602 (Lenix), state and federal constitutional authority imposes a three-step inquiry: "First, the trial court must determine whether the [moving party] has made a prima facie showing that the [opposing party] exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the [opposing party] to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the [moving party] has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. [Citations.]" (Lenix, supra, at pp. 612-613.) The reseating of improperly challenged jurors is a proper remedy where the prosecution establishes a Batson/Wheeler claim. (Willis, supra, 27 Cal.4th at p. 824.)
Our review of a trial court's ruling on a Batson/Wheeler motion is deferential, meaning that we examine "only whether substantial evidence supports its conclusions." (See Lenix, supra, 44 Cal.4th at p. 613, citing People v. Bonilla (2007) 41 Cal.4th 313, 341-342 (Bonilla).) We therefore exercise great restraint in reviewing a lower court's determination of the sufficiency of the moving party's reasons for making peremptory challenges. (Lenix, supra, at pp. 613-614.) "'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.]'" (Id. at p. 614, citing People v. Burgener (2003) 29 Cal.4th 833, 864 (Burgener).) In assessing the lower court's findings on the question of purposeful discrimination, "we must 'rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 908 (Reynoso).) As the court stated in Batson: "'[T]he trial judge's findings in the context under consideration here largely will turn on evaluation of credibility,' and for that reason 'a reviewing court ordinarily should give those findings great deference.'" (Ibid., quoting Batson, supra, 476 U.S. at p. 98, fn. 21.)
Initially, defendant argues the trial court erred in finding a prima facie showing of racial discrimination because the court's only articulated ground was the disproportional use of challenges against Asian-American prospective jurors—6 of the 10 peremptory challenges. We disagree. To make a prima facie showing of group bias, the moving party "must make a '"showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose."' [Citations.]" (People v. Howard (2008) 42 Cal.4th 1000, 1016-1017, quoting Johnson v. California (2005) 545 U.S. 162, 168.) Here, six of the final seven challenges were exercised against Asian-Americans, which standing by itself provides strong support of an inference of discriminatory intent, especially when the crime victims were Asian-American. As the Attorney General points out, a heavily disproportionate use of peremptory challenges against members of a racial group can be suspicious enough to establish a prima facie case under the Batson line of cases. (See Johnson v. California, supra, at p. 173.)
Moreover, as we discuss infra, this was not a case in which there were obvious race-neutral bases for the challenges, so as to dispel an inference of systematic discrimination. In arguing that statistical disparities alone are legally insufficient to establish a prima facie case of group bias, defendant erroneously relies on cases in which the trial court found no prima facie case and defendant's appellate challenge was based solely on statistical disparity. "'When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court's ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question." (People v. Guerra (2006) 37 Cal.4th 1067, 1101, quoting People v. Farnam (2002) 28 Cal.4th 107, 135.) In contrast, appellate review of a lower court's finding of a prima facie case must recognize that the systematic exclusion of members of a racial group factors strongly into a finding of group bias. As our Supreme Court has explained, "although a prosecutor's excusal of all members of a particular group may establish a prima facie discrimination case, especially if the defendant belongs to the same group, this fact alone is not conclusive." (People v. Hoyos (2007) 41 Cal.4th 872, 901.)
Nor is defendant correct in asserting that an inference of group bias is dispelled by trial counsel's initial decision to accept the panel and not strike the Asian-American prospective jurors. A discriminatory intent may arise at any time during voir dire. Thus, when counsel subsequently exercised six of the final seven challenges against Asian-Americans, the trial court reasonably found it arose later rather than sooner.
We turn to the third step of the Batson/Wheeler analysis—whether the trial court's finding of purposeful discrimination was supported by the evidence in the record. Defendant asserts the trial court's finding was based on the erroneous belief that the defense challenges eliminated all Asian-Americans from the petit panel of 12 prospective jurors. While the court initially expressed the view that all Asian-Americans had been excused, its later statements clearly demonstrate the court understood that at the time of the Batson/Wheeler hearing, there were three Asian-Americans among the prospective jurors seated at the time of its ruling—Jurors No. 6708, No. 3683, and No. 9153, and the prospective juror who would have taken the place of Juror No. 9153 was also Asian-American. The court did not find that all members of that group had been excluded. Its concern was that trial counsel had "eliminated virtually every Asian[-American] in the panel . . . ." (Emphasis added.) As the Attorney General points out, it does appear that trial counsel's challenges had the effect of eliminating all the Asian-Americans in the original panel of 18 prospective jurors.
Our independent review of the record demonstrates that the trial court made "'a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered'" and its conclusions are therefore "'entitled to deference on appeal.'" (Lenix, supra, 44 Cal.4th at p. 614, quoting Burgener, supra, 29 Cal.4th at p. 864.) The court did not reject any of counsel's explanations out of hand. Indeed, it found credible defense counsel's race-neutral explanations as to Juror No. 6396 (his strong ties to the Asian-American community), Juror No. 5785 (antipathy to gang members, based on attack on her son), and Juror No. 1148 (two nephews were police officers).
On the other hand, the trial court rejected counsel's explanation as to Juror No. 3151—that his body language and facial expressions were negative during voir dire concerning status as a felon and the presumption of innocence. The court found that explanation inadequate because it did not recall any such display of body language. Defendant does not challenge that finding on appeal.
The trial court rejected counsel's explanation for striking Juror No. 1890, finding the proffered basis was not counsel's own, but that of her client. Defendant argues the court committed legal error by ruling that defense counsel may not take his or her client's observations into account in exercising peremptory strikes. Our reading of the record, in accordance with the proper deferential standard of review, does not support such a broad interpretation of the court's finding. Rather, the court was attempting "'to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.'" (Reynoso, supra, 31 Cal.4th at p. 908.) Here, counsel did not state that she agreed with her client in making the challenge. Rather, counsel distanced herself entirely from the proffered race-neutral explanation, stating "defendant did not care for him" and "defendant felt that he responded poorly body-language-wise to" questions regarding defendant's status as a felon and the presumption of innocence. There was nothing unreasonable about finding a race-neutral explanation pretextual where it was not the product of counsel's own independent judgment. A defendant's dislike for a prospective juror hardly dispels an inference of racial animus.
Finally, as to Juror No. 9153, defendant argues the trial court was obligated to accept counsel's race-neutral explanation—that the prospective juror was a burglary victim—since it was supported by the record and the underlying offense was similar to a burglary. Given that the court acted reasonably in finding some of counsel's explanations credible and others not, we have no reason to question the court's credibility determination that the proffered explanation as to Juror No. 9153 was pretextual. The juror stated that the burglary occurred nearly four decades ago and the event would not influence her in defendant's trial. In light of counsel's dubious use of peremptory challenges against at least two other Asian-Americans, it was reasonable for the court to find counsel's reliance on a 39-year-old burglary pretextual.
From the foregoing analysis, it is clear the trial court made a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, and its conclusions are therefore entitled to deference on appeal. (Lenix, supra, 44 Cal.4th at pp. 613-614.)
Sufficiency of Evidence
Defendant contends there was constitutionally insufficient evidence to support the personal firearm use enhancement under section 12022.53, subdivision (b), in connection with the robbery of Shinho. He argues the evidence showed Shinho was not in The UPS Store when defendant displayed the handgun to John and there was no evidence defendant threatened Shinho with the weapon. However, defendant acknowledges that there was sufficient evidence that he was armed during the robbery of Shinho and, therefore, the jury's true finding for the enhancement should be modified to reflect the firearm enhancement under section 12022.5, subdivision (a), for merely being armed. The contention fails because there was reasonable, credible, and solid evidence that defendant displayed his handgun at various times during the robbery of both victims, including when he forced John and Shinho toward the back of the store just before incapacitating them with pepper spray.
Section 12022.53, subdivision (b) provides: "Notwithstanding any other provision of law, any person who . . . personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."
As we recently explained: "'"Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence." (People v. Carrasco (2008) 137 Cal.App.4th 1050, 1058 [(Carrasco)].)' (People v. Wilson (2008) 44 Cal.4th 758, 806.)" (People v. Bryant (2011) 191 Cal.App.4th 1457, 1472 (Bryant).)
The gravamen of defendant's claim is that there was no evidence defendant willfully displayed his firearm to Shinho in a threatening manner during the commission of the robbery. However, "the prosecution was not required to prove that defendant pointed the gun [the victim] or expressly threatened her with the weapon. '"Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5[, subdivision] (a)." (People v. Granado (1996) 49 Cal.App.4th 317, 325; see People v. Carrasco, supra, 137 Cal.App.4th at pp. 1059-1060.)' (People v. Wilson, supra, 44 Cal.4th at pp. 806-807.)" (Bryant, supra, 191 Cal.App.4th at p. 1472.)
Defendant's argument fails for a variety of reasons. First, Shino testified that he saw the handgun tucked into defendant's waistband just before defendant pepper-sprayed him. From John's testimony that defendant lifted his sweatshirt to reveal the handgun, the jury could infer that the firearm was visible because defendant intentionally exposed it. Whether defendant's exposition of the gun was inadvertent or intentional was a question of fact for the jury. Certainly, Shinho felt threatened and the display helped to effect defendant's escape. (See People v. Monjaras (2008) 164 Cal.App.4th 1432, 1437 ["The pistol tucked into defendant's waistband looked like a firearm, and it in effect communicated that it was a firearm when defendant menacingly displayed it and ordered the victim to give him her purse."]; see also Wilson, supra, 44 Cal.4th at pp. 806-807; Carrasco, supra, 137 Cal.App.4th at pp. 1059-1060; Bryant, supra, 191 Cal.App.4th at p. 1472.)
Second, the surveillance video showed that defendant pulled the gun out of his waistband and held it by his side at the time he forced John and Shinho to the back of the store. Again, the issue of whether defendant did so inadvertently was a question for the trier of fact, and the jury could draw the reasonable inference that defendant intended them to see (and be threatened by) the handgun. Nothing in section 12022.53, subdivision (b) required proof that the victim actually saw the firearm. In Bryant, we noted that the defendant intimidated his victim by, among other things, holding "the gun by his side, deliberately within [the victim's] view." (Bryant, supra, 191 Cal.App.4th at p. 1472.) The fact that neither John nor Shinho noticed the handgun at defendant's side did not preclude the jury from finding that defendant deliberately displayed it and intended that it be seen.
Moreover, the robberies of Shinho and John were contemporaneous and part of the same robbery transaction. (Carrasco, supra, 137 Cal.App.4th at p. 1059 [robbery "is a continuing offense that concludes not just when all the elements have been satisfied but when the robber reaches a place of relative safety"].) As such, defendant's initial deliberate display of the firearm to John was an integral part of threatening conduct used to effectuate both robberies.
Instruction on "Lesser Included Enhancement"
The trial court properly instructed the jury on the charged special allegation that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) in the commission of the robberies. Defendant, however, contends the trial court erroneously failed to instruct the jury sua sponte with the alternative "lesser included enhancement" of merely being armed with a firearm under section 12022, subdivision (a). The argument fails because it was rejected by our Supreme Court in People v. Majors (1998) 18 Cal.4th 385 (Majors).
"[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." (People v. Lewis (2001) 25 Cal.4th 610, 645.) However, in Majors, supra, 18 Cal.4th at page 410, our Supreme Court held that trial courts are not required to instruct sua sponte on lesser included enhancements. The Majors court explained the distinction as follows: "One of the primary reasons for requiring instructions on lesser included offenses is '"to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence"'—that is, to eliminate '"the risk that the jury will convict . . . simply to avoid setting the defendant free."' [Citation.] This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses."
Defendant acknowledges the holding in Majors, but argues it has been effectively undercut by subsequent authority, specifically Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and People v. Seel (2004) 34 Cal.4th 535 (Seel). Not so. The Apprendi court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, at p. 490.) In Seel, it was held that double jeopardy protections preclude retrial of premeditation allegations after a finding of insufficient evidence. (Seel, supra, at p. 539.) The holding in Majors is consistent with Apprendi' s requirement that the jury act as factfinder to increase the penalty for a crime beyond the prescribed statutory maximum since it is the jury that makes the finding on the enhancement allegation. Similarly, Seel's double jeopardy holding can be applied consistently with Majors in the event such an enhancement is reversed for lack of sufficient evidence.
We therefore follow Majors and refuse to impose an obligation to instruct sua sponte on a so-called "lesser included enhancement." (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Prior Prison Term Enhancements
Defendant contends the trial court improperly imposed recidivism enhancements under sections 667, subdivision (a), and 667.5, subdivision (b), for the same prior convictions. The Attorney General concedes sentencing error under People v. Jones (1993) 5 Cal.4th 1142, 1148-1152 (Jones). We accept the concession.
The prosecution alleged four prior serious or violent felony convictions for purposes of the three strikes law—three 1994 convictions in case No. YA016319, and one 2000 conviction in case No. RIF084670. The same four convictions were alleged as serious felonies for purposes of the five-year recidivist enhancement under section 667, subdivision (a)(1). The prosecution alleged the 2000 prior conviction and one of the three 1994 convictions for purposes of the one year prior prison term enhancement under section 667.5, subdivision (b). Defendant waived his right to jury trial on the recidivist allegations, and the trial court found all the allegations true. At sentencing, the court imposed two five-year recidivism enhancements under section 667, subdivision (a)(1), and two one-year enhancements under section 667.5, subdivision (b).
In Jones, supra, 5 Cal.4th 1142, our Supreme Court "held that in enacting what is now subdivision (a) of section 667, the voters did not intend that a defendant's sentence would be enhanced for both a prior conviction (under the new statute) and the resulting prison term (under § 667.5)." (People v. Murphy (2001) 25 Cal.4th 136, 156.) Here, as the imposition of the two section 667.5, subdivision (b) enhancements was contrary to Jones, they must be stricken.
Court Security Fee
Finally, defendant contends the trial court improperly imposed a $40 court security fee for each of his five convictions based on the law at the time of sentencing, rather than the $30 fee mandated at the time of his convictions. We agree.
As originally enacted in 2003, section 1465.8, subdivision (a)(1) provided: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense. . . ." (Stats. 2007, ch. 302, § 18.) Effective July 28, 2009, subdivision (a)(1) of section 1465.8 was amended to increase the security fee from $20 to $30 on every conviction for a criminal offense. (Stats. 2009-2010, 4th Ex. Sess. 2009, ch. 22, § 29.) Effective October 19, 2010, it was amended to increase the fee to $40 for each conviction. (Stats. 2010, ch. 720, § 33.) On October 8, 2010, 11 days before the amendment took effect, the jury rendered its verdicts and they were recorded at that time. Defendant was sentenced on January 20, 2011. The trial court imposed the $40 fee as to all five convictions for a total of $200.
In support of his contention that he was subject to the fee amount as of the date of conviction, defendant relies on People v. Davis (2010) 185 Cal.App.4th 998 (Davis). In Davis, our colleagues in Division Four of this district held that, as a matter of statutory construction, a court facilities fee imposed under Government Code section 70373 did "not apply to cases in which the defendant's conviction, by plea or jury verdict, was rendered before the . . . effective date [of the statute]." (Davis, supra, at p. 1000.) The Davis court explained that "[i]t has been settled law for over 250 years that a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt." (Id. at p. 1001.) The court determined that Government Code section 70373 "only applies to cases in which the conviction occurs on or after its effective date" and reversed the trial court's fee assessment. (Davis, supra, at p. 1001.)
We agree with defendant that Davis was correct and that its rationale applies equally to the imposition of the court security fee at issue here. Just as the facilities fee at issue in Davis, application of the court security fee is keyed to convictions. (See Davis, supra, 185 Cal.App.4th at p. 1000; Gov. Code, § 70373 ["To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . ."].)
While it is true, as the Attorney General points out, that section 1465.8, subdivision (a)(1) does not expressly proscribe the imposition of the increased fee amount to convictions that predated the amended statute, nothing in the statute or the legislative history indicates an intent to disregard the general rule, as set forth in Davis. In People v. Alford (2007) 42 Cal.4th 749, 755, our Supreme Court stated: "The legislative history of section 1465.8 makes clear that the Legislature intended the fee to operate as quickly as feasible, consistent with the overall goals of the Budget Act of 2003." That statement, however, is perfectly consistent with the Davis rationale. Indeed, as the Alford court explained, "Section 1465.8's legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date." (Id. at p. 754.)
In sum, the trial court should not have applied the $40 court security fee to defendant, whose convictions by jury verdict predated the operative date of the 2010 amendment to section 1465.8. We therefore modify the judgment to reflect the proper court security fee of $30 per conviction.
DISPOSITION
The judgment is modified to (1) strike the imposition of the two one-year enhancements under section 667.5, subdivision (b), and (2) reduce the total section 1465.8 security fee to $150. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J.
ARMSTRONG, J.