Opinion
B162352.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES MAURICE PIPER, JR., Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster and Michelle J. Pirozzi, Deputy Attorneys General, for Plaintiff and Respondent.
Charles Maurice Piper, Jr., appeals from the judgment entered following a jury trial that resulted in his conviction of unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1); count 7) and evasion of a police officer (Veh. Code, § 2800.2, subd. (a); count 10) and court findings that he had suffered five prior convictions which qualified as strikes under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He was sentenced to prison to concurrent terms of 25 years to life on counts 7 and 10.
All further section references are to the Penal Code unless otherwise indicated.
Appellant contends the trial court committed reversible error by denying his two mistrial motions based on the prosecutors excusal of Black jurors (People v. Wheeler (1978) 22 Cal.3d 258). He contends the trial court abused its discretion by refusing to dismiss four of his five strikes and by refusing to reduce his felony convictions to misdemeanors. He challenges his sentence as cruel or unusual (or both) punishment under the federal and state Constitutions (U.S. Const., 8th Amend.; Cal. Const., Art. 1, § 17). He contends the abstract of judgment should be amended to reflect he was convicted of unlawful possession of ammunition, not a firearm, in count 7.
Based on our review of the record and applicable law, we affirm the judgment. We direct the trial court to prepare an amended abstract of judgment to reflect appellants conviction in count 7 is for unlawful possession of ammunition.
FACTUAL SUMMARY
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The following summary is based on this appellate standard of review.
On January 24, 2001, about 12:20 a.m., Los Angeles Police Sergeant Danny Contreras effected a traffic stop of a car on Pacific Coast Highway which matched a description in a radio dispatch. After appellant, the driver, pulled over, Contreras ordered him to show his hands. Appellant complied by sticking both hands and his head out the window. Contreras then made eye contact with him and Andre Luzano, the passenger, and requested a back up unit.
After its arrival, appellant was directed to exit the car. He responded by asking, "Why are you stopping me? Why are you hassling me?" When he abruptly drove off, the two patrol cars gave chase with their lights and sirens activated. During the ensuing pursuit, appellant drove on the wrong side of the road, went through stop signs and a red light, changed lanes without signaling, and drove about 40 to 45 miles per hour in a 25-mile-per-hour zone. At one point, "a dark item" which appeared to be a handgun flew out of the passengers window and over the edge of a bridge. After stopping his car, he and Luzano fled on foot.
Both Luzano and appellant were subsequently arrested. After appellant was discovered crouching under a plastic tarp, a pager, and seven live rounds of .45-caliber ammunition fell from his pocket. During a postarrest search, a live round of .45-caliber ammunition and a plastic baggie containing marijuana were recovered from a front pants pocket.
Appellant did not present an affirmative defense.
DISCUSSION
1. No Improper Excusal of Jurors for Group Bias Shown
Appellant contends the prosecutor improperly excused three Black jurors based impermissibly on group bias. We find appellant has failed to carry his burden.
During voir dire, the prosecutors first peremptory challenge was to Juror No. 5, a Black male. After the prosecutor excused Juror No. 7, also a Black male, appellant moved for a mistrial on the ground the prosecutor had excused two Black jurors.
Appellant does not challenge the denial of his Wheeler motion made on the ground the prosecutor also excused Juror No. 6, who was disabled.
Appellants attorney argued that a prima facie case existed and pointed out that appellant and Luzano, his codefendant, were Black; there were "very few" Black jurors in both the grand and petite venire; and the prosecutors excusal of two Black jurors constitutes "approximately 40 percent" of the Black jurors on the petite venire.
In response to the courts request, the prosecutor explained she excused Juror No. 5, because he had testified in court on behalf of a cousin who had been accused of a shooting and that on the previous day, she became uncomfortable when she observed him making eye contact with appellants attorney.
She explained that she excused Juror No 7, a Black female, because "she was unemployed. And I felt that she does not have the stability in the community to be able to sit as a juror in this matter."
Appellants attorney argued the prosecutor offered "a completely insufficient justification" and that "its very obvious shes targeting Black[s] . . . for racial motives."
In denying the Wheeler motion, the court stated the prosecutor had "given sufficient reasons" for excusal of the two Black jurors.
The court indicated that it did not pay attention to the people "coming and going" in response to appellants attorneys inquiry about whether the court had noticed any unusual eye contact by Juror No. 5 and him.
Subsequently, appellants attorney renewed his Wheeler motion based on the prosecutors excusal of Juror No. 2, a female Black. He argued that the prosecutor had now excused three Blacks; there were "very few" Blacks in the jury pool; and appellant and his codefendant were both Black.
In response to the courts request, the prosecutor explained, "We went to side-bar with this juror, and shes indicated that her son had been accused of similar offenses, [i.e.,] discharge of a firearm . . . . He in fact pled guilty. And while explaining that, she said that she felt that [appellant and his codefendant] were on trial because something was missing. I felt that she could not be fair because of that, because of that statement she made. She further indicated that her [ex-]husband had in fact been accused of theft, and she indicated that her nephew was shot in Hawthorne." The prosecutor added that she felt that Juror No. 2 "could not be fair based [up]on the totality of her experience with the criminal justice system from [sic] her family[, i.e.,] given her background with respect to the numerous contacts shes had with the criminal justice system through family members."
Appellants attorney disagreed and argued that Juror No. 2 appeared to be "very pro-prosecution" in that she "admired" her son for accepting responsibility by pleading guilty for discharging a firearm. He added that the prosecutor committed "a clear . . . violation of Wheeler and Batson [v. Kentucky (1986) 476 U.S. 79,]" because her peremptory challenges were "directed exclusively against" Blacks. Luzanos attorney argued no reason existed to suspect Juror No. 2 would not be fair, because she had testified for the prosecution in a federal credit fraud case.
The trial court denied appellants motion based on its finding that "the prosecution has given the court justifiable reasons" for excusal of the three Black jurors and, in particular, Juror No. 2.
"`Peremptory challenges are permissible only if they are based on specific bias, namely "`a bias relating to the particular case on trial or the parties or witnesses thereto." (People v. Tapia (1994) 25 Cal.App.4th 984, 1013 . . . .)
"`It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (People v. Wheeler, supra, 22 Cal.3d [258] at pp. 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89 . . . .) Under Wheeler and Batson, "`[i]f a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, . . . he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood [i.e., a reasonable inference] that such persons are being challenged because of their group association." (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154 . . ., italics in original; People v. Garceau (1993) 6 Cal.4th 140, 171 . . . .)" (People v. Irvin (1996) 46 Cal.App.4th 1340, 1350; see People v. Johnson (2003) 30 Cal.4th 1302, 1306 ["Wheelers terms, a `strong likelihood and a `reasonable inference, refer to the same test, and this test is consistent with Batson"].)
"`If the trial court finds that the defendant has established a prima facie case, the burden shifts to prosecution to provide "a race-neutral explanation related to the particular case to be tried" for the peremptory challenge. (People v. Fuentes [(1991)] 54 Cal.3d [707] at p. 714 . . . ; Batson v. Kentucky, supra, 476 U.S. at p. 97 . . . .) However, the explanation need not be sufficient to justify a challenge for cause. (Batson v. Kentucky, supra, 476 U.S. at p. 97 . . . ; see People v. Johnson (1989) 47 Cal.3d 1194, 1216 . . . .)
"`There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner. (People v. Clair (1992) 2 Cal.4th 629, 652 . . . .) We give great deference to the trial court in distinguishing bona fide reasons from sham excuses. (People v. Fuentes, supra, 54 Cal.3d at p. 714; People v. Wheeler, supra, 22 Cal.3d at p. 282.) Additionally, "[i]f the record `suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm." (People v. Howard, supra, 1 Cal.4th at p. 1155, quoting People v. Bittaker (1989) 48 Cal.3d 1046, 1092 . . . .) (People v. Turner (1994) 8 Cal.4th 137, 164-165; accord, People v. Crittenden (1994) 9 Cal.4th 83, 117.)" (People v. Irvin, supra, 46 Cal.App.4th at pp. 1350-1351.)
Mindful of these principles, we conclude the record contains ample evidence to support the trial courts finding that the prosecutors explanations for excusal of the three Black jurors were based on specific bias, not impermissible group bias.
Juror No. 5s responses reflected the prosecutor was entitled to infer that he might be unsympathetic to the prosecution based on that jurors negative experience with the criminal justice system. Not only had his cousin twice been a suspect in a crime, one possibly an attempted murder charge, Juror No. 5 in fact had testified on his behalf in court in one instance. (See, e.g., People v. Williams (1997) 16 Cal.4th 635, 664-665; People v. Arias (1996) 13 Cal.4th 92, 138; People v. Turner, supra, 8 Cal.4th 137, 171.) Also, the prosecutor had observed Juror No. 5 making eye contact with appellants counsel, which raises a reasonable inference that he might be sympathetic towards appellant. (See, e.g., Turner, supra, 8 Cal.4th at p. 171.)
The prosecutors excusal of Juror No. 7 also was based on a race-neutral reason. Her response that she was unemployed supports the prosecutors conclusion that she "did not have the stability in the community to be able to sit as a juror in this matter." (See, e.g., Wallace v. State (Ala.Cr.App. 1987) 530 So.2d 849, 852 [unemployed juror "`may be somewhat irresponsible"].)
Juror No. 2s responses, even more so than Juror No. 5s, indicate substantial negative experience with the criminal justice system with respect to family members, i.e., her son, her ex-husband, and a nephew. (See, e.g., People v. Williams, supra, 16 Cal.4th at p. 664-665; People v. Arias, supra, 13 Cal.4th at p. 138; People v. Turner, supra, 8 Cal.4th at p. 171.) Additionally, she appeared to be sympathetic to appellant based on her statement that appellant was on trial "because of the fact theres some information that is missing or . . . ."
2. Refusal to Dismiss Strikes Not Abuse
Appellant contends the trial court abused its discretion by refusing to dismiss four of his five strikes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497). We find no abuse.
At sentencing, appellants motion to dismiss the strikes was heard. The trial court, which expressly acknowledged its authority to dismiss a strike under section 1385, denied the motion.
Appellant urges the trial court erred in refusing to dismiss the four strikes for three basic reasons.
He argues "the trial courts statement rejecting appellants Romero motion without comment demonstrates that the court simply ignored the many factors justifying an exercise of discretion to dismiss the strikes." (See, e.g., People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)
He also argues that his "conduct falls `outside the spirit of the three strikes law because his [four] prior convictions for making terrorists threats (§ 422) and arson of inhabited property (§ 451, subd. (b)) all arose out of a single incident committed almost 10 years earlier and both of his current felony offenses are `wobbler-type offenses that subject him to only second strike sentencing under the district attorneys three strike policy."
With respect to his claim, he points out that at the hearing, his attorney stated, "This is a presumed second strike because both offenses are wobbler offenses. Theyre neither serious nor violent. And, in fact, theyre pretty low key. The ex-felon in possession is a technical offense. And by [the District Attorneys] own admission, the campaign pledge upon which he ran, he said that these are the types of things that are presumed two strikes, that you double the high term and you send them away for that."
"Pursuant to section 1385, subdivision (a), `in furtherance of justice, the trial court may dismiss an allegation or vacate a finding that a prior serious or violent felony conviction qualifies as a strike under the Three Strikes laws. On appeal, we review the courts ruling under the abuse of discretion standard. (People v. Superior Court (Romero)[, supra,] 13 Cal.4th [at p.] 504 . . . ; accord, People v. Williams [(1998)] 17 Cal.4th [148,] 151-152, 158-159.)
"`The governing canons are well established: "This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]" (People v. Warner (1978) 20 Cal.3d 678, 683 . . . .) . . . "[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and legal policies appropriate to the particular matter at issue." (People v. Russel [(1968) 69 Cal.2d 187,] 195 . . . .) (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 . . . .)
"The abuse of discretion standard `is deferential. . . . But it is not empty. (People v. Williams, supra, 17 Cal.4th at p. 162.) The touchstone for that standard, where a trial court is asked to dismiss a prior serious or violent felony conviction which qualifies as a strike `in furtherance of justice pursuant to section 1385, subdivision (a), was first stated in Williams and was recently reiterated in People v. Garcia (1999) 20 Cal.4th 490, 503 . . . . It is whether `in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams, supra, 17 Cal.4th at p. 161, italics added; People v. Garcia, supra, 20 Cal.4th at p. 503.)" (People v. Gaston (1999) 74 Cal.App.4th 310, 314-315.)
We conclude no abuse of discretion transpired here. Initially, we note that appellant is correct that his current convictions do not constitute violent or serious crimes to the extent those crimes are defined, respectively, in sections 667.5, subdivision (c), and 1192.7, subdivision (c). Nonetheless, they are not offenses which may be considered insignificant. Felony evasion is a crime of moral turpitude (People v. Dewey (1996) 42 Cal.App.4th 216, 222-223) which "carries with it as a likely consequence the possibility of massive physical harm" (People v. Johnson (1993) 15 Cal.App.4th 169, 174). Also, possession of ammunition by a felon gives rise to the inference of potential for great bodily injury, even death, from the improper use of firearms. (See People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-1038.)
Moreover, when his current convictions are considered with his prior criminal conduct, which is not minimal, it is clear that it cannot be said that he falls outside the spirit of the three strikes law. In 1991, a juvenile petition for robbery was sustained, and based thereon he was placed in a youth home for nine months. In 1993, he sustained the four convictions underlying the challenged strikes, i.e., for which he was sentenced to prison for eight years. Appellant and an accomplice threatened the victims life and "to burn him out of the neighborhood." They threw a burning Christmas tree through the window of the victims home. In 1998, while on parole therefor, he was convicted of battery on a peace officer (§ 243, subd. (c)) and sentenced to prison for 32 months. On March 14, 2000, he was paroled therefrom, and on January 24, 2001, he committed the current crimes.
3. Denial of Motion to Reduce Convictions From Felonies to
Misdemeanors Not Abuse
Appellant contends the trial court abused its discretion by denying his motion to reduce his two convictions for felonies to misdemeanors. We find no abuse.
On application by the defendant, the court may declare an offense which is punishable either as a misdemeanor or a felony, to be a misdemeanor. (§ 17, subd. (b).) In exercising its discretion, the trial court takes into account all relevant factors, e.g., the nature and circumstances of the offense; the defendants appreciation and attitude toward the offense; his traits of character as evidenced by his behavior and demeanor at trial; and the defendants criminal history. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-980.)
The record contains abundant support for the trial courts implied finding that reduction of the two felonies to misdemeanors would be inappropriate. Although appellant is young, he has a substantial criminal history, as recounted above. Also, his prior convictions involved violence or the potential for violence, i.e., robbery, terrorist threats, arson, attempted arson, and battery on a peace officer. Moreover, he was on parole when he committed the current crimes. (Cf. Alvarez, supra, 14 Cal.4th at pp. 973, 981 [finding that current crime was "`for sure" a misdemeanor supported by evidence that .41 grams of powdered methamphetamine found during consensual search of bag after defendant stopped for riding skateboard on wrong side of street].)
4. Twenty-five Years to Life Not Cruel or Unusual (or Both) Sentence
Appellant contends his two concurrent sentences of 25 years to life constitute cruel or unusual (or both) punishment. We find no constitutional infirmity.
"The basic fallacy of appellants argument lies in his failure to acknowledge that he `is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citations.] (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630 . . . , review den. Mar. 14, 1996.) Appellants adult criminal history includes prior convictions for [making terrorist threats and arson of an inhabited property]. His sentence therefore was based on these proven prior convictions and not solely on his current convictions. Assuredly, it is not constitutionally proscribed. (See, e.g., People v. Kinsey, supra, 40 Cal.App.4th at pp. 1624, 1630-1631 [29 years to life not cruel or unusual punishment under state Constitution]; People v. Ingram (1995) 40 Cal.App.4th 1397, 1412-1417 . . . , review den. Mar. 14, 1996 [61 years to life not cruel or unusual punishment as applied]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1130, 1134-1137 . . . , review den. Feb. 15, 1996 [upholding sentence of 15 indeterminate terms of 25 years to life plus determinate term of 53 years against cruel and/or unusual punishment as applied challenges].)" (People v. Stone (1999) 75 Cal.App.4th 707, 715; see also People v. Ayon (1996) 46 Cal.App.4th 385, 400 [240-years-to-life sentence under Three Strikes law, which is "functional equivalent of a life sentence without possibility of parole" not cruel or unusual punishment in light of defendants current offenses and extensive ongoing criminal conduct].)
5. Amendment of Abstract of Judgment Warranted
Appellant contends, and respondent concedes, the abstract of judgment should be amended to reflect appellant was convicted in count 7 of unlawful possession of ammunition, not a firearm. We agree.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an abstract of judgment to reflect appellant was convicted in count 7 of unlawful possession of ammunition.
We concur: VOGEL (C.S.), P.J. and EPSTEIN, J.