Opinion
D057602
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SPELLS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD223105)
APPEAL from a judgment of the Superior Court of San Diego County, Lisa Foster, Judge. Affirmed.
Christopher Spells appeals from a judgment convicting him of unlawfully causing a fire. He argues the trial court erred in (1) denying his Batson/Wheeler motion based on the prosecutor's use of peremptory challenges to excuse three female prospective jurors, and (2) refusing his request to dismiss strike prior convictions. We reject these contentions and affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2009, Spells and his girlfriend (Brenda Howard) got into an argument. Spells hit Howard and began throwing things at her, including an ashtray, a trash can, and a coffee table. Howard fled the apartment and called 911. Spells's cousin (Tyea Whitson) was passing by when Howard fled. Whitson looked inside the apartment window and saw a small fire burning on the bed. Whitson heard Spells yelling " 'I'm going to kill you all,' " and heard him throwing things and the sound of glass breaking. Whitson screamed " 'fire' " and alerted others to leave the complex.
Meanwhile, the police had arrived at the complex in response to Howard's domestic violence call. Spells was breaking windows in the apartment. The police ordered him out of the apartment, and, before he came out, they noticed smoke coming from the apartment windows. Spells eventually came out of the apartment and was arrested. The fire department arrived and put out the fire.
Spells was charged with arson. The jury convicted him of the lesser included offense of unlawfully causing a fire of an inhabited structure. (Pen. Code, § 452, subd. (b).) Based on his strike prior convictions, he was sentenced to 25 years to life, plus a one-year term for a prior prison term enhancement.
DISCUSSION
I. Denial of Batson/Wheeler Motion
Spells argues the trial court erred in denying his Batson/Wheeler motion based on the prosecutor's peremptory excusals of three female prospective jurors.
For convenience, we refer to the prospective jurors as jurors.
To protect a defendant's constitutional rights to equal protection and a jury drawn from a representative cross-section of the community, the prosecutor's peremptory challenges may not be based on group bias. (People v. Lewis (2008) 43 Cal.4th 415, 469.) If the defendant makes a prima facie showing of a discriminatory purpose for the prosecutor's peremptory challenges, the burden shifts to the prosecutor to offer nondiscriminatory justifications for striking the jurors. (Ibid.) If the prosecutor presents nondiscriminatory explanations, the trial court must then decide whether the defendant has proved purposeful discrimination. (Ibid.)
The prosecutor's justification for a peremptory challenge need not rise to the level of a challenge for cause, and even a trivial reason or hunch, if genuine and neutral, will suffice. (People v. Lenix (2008) 44 Cal.4th 602, 613.) When deciding whether the defendant has shown purposeful discrimination, the trial court must determine whether the prosecutor's reasons are sincere and legitimate, or whether they are "implausible or fantastic justifications" serving as pretexts for purposeful discrimination. (People v. Reynoso (2003) 31 Cal.4th 903, 916, 924.) The trial court's findings on purposeful discrimination turn largely on credibility, and on appeal we review the court's ruling for substantial evidence. (People v. Lenix, supra, 44 Cal.4th at pp. 613-614.) "'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. . . . 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.'" (Ibid.)
During peremptory challenges, the prosecutor excused a male juror and two female jurors (M.G. and C.F.). During a second round of peremptory challenges, the prosecutor excused a third female juror (C.H.).
At this point, defense counsel raised a Batson/Wheeler challenge to the prosecutor's peremptory excusal of three female jurors, M.G., C.F., and C.H. The court noted the prosecutor had used three of her four peremptory challenges to excuse females, and there were not a lot of women in the jury box. The court asked the prosecutor to explain the basis for her challenges to the three females. After the prosecutor set forth her reasons, the court found the excusals to be gender neutral and denied the Batson/Wheeler motion.
At this juncture, there were apparently 11 men and one woman in the jury box.
The first female juror excused by the prosecutor (M.G.) stated during voir dire examination that she had been an attorney for 26 years; she had worked for the Immigration and Naturalization Service (I.N.S.) for five years in removal proceedings; and she was currently working for the Federal Deposit Insurance Corporation. She had never done any criminal work, but when she worked for the I.N.S. she reviewed rap sheets and conviction documents in criminal files. She stated that she was trained to look at the evidence and tended to be objective. The prosecutor told the trial court that she excused M.G. because she has been a lawyer for a long time; lawyers do not typically make good jurors because they engage in "a lot of second-guessing"; and M.G.'s work had related to the criminal realm when she looked at rap sheets and convictions.
The second female juror excused by the prosecutor (C.F.) stated during voir dire that she had been working as a fifth grade teacher for five years and this had been her only job. The prosecutor told the court that she excused this juror because her only job had been as a fifth grade teacher for five years, and it did not appear that she "had any life experiences that would give her the ability to make the calls that are required in this case."
The third excused female juror (C.H.) stated during voir dire that she was a homemaker and did volunteer work, and 30 years earlier she had worked for the phone company. When she was working many years ago she mostly had to make individual decisions, and she never had to go to meetings and make a group decision. The prosecutor told the court that she excused C.H. because she has "no life skills in making any sort of determinations, supervising people, making decisions. She has really not had any work experience. . . ."
The record supports the trial court's assessment that the prosecutor was not providing sham excuses for excusing the three females to cover up a discriminatory purpose. The prosecutor's questioning of the jurors prior to the Batson/Wheeler motion suggests that she wanted jurors who could readily make judgment calls and reach a verdict based on circumstantial evidence, and who were experienced with group decision-making to facilitate reaching a unanimous verdict. Reflective of this, the prosecutor generally asked all the jurors if anyone would have a problem basing a verdict solely on circumstantial evidence, and repeated this question during individual questioning of a juror. When questioning particular jurors, the prosecutor asked if a juror had worked alone in his jobs; whether a juror had supervised a group of employees in his employment; whether during a juror's prior jury experience the juries had reached verdicts; whether a juror who worked as a life coach would be able to pass judgment on people; and whether a juror trained as an engineer would be able to judge credibility even though the process was not scientific and there were few absolutes. Consistent with the prosecutor's apparent concern for jurors skilled in group processes, the prosecutor peremptorily excused a male juror who had stated that he might have difficulty with jury deliberations because this was new to him.
Observing the prosecutor's concern for the persuasiveness of circumstantial evidence, the trial court could reasonably conclude that the excusal of M.G. was legitimately based on a belief that her lengthy experience as an attorney, including working for a prosecutorial-type branch of the government, might cause her to subject circumstantial evidence to heavy scrutiny. Likewise, considering the prosecutor's desire for jurors who appeared skilled in making judgment calls and group decisions, the court could find that the challenges of C.F. and C.H. were based on the prosecutor's genuine concern that their lack of lengthy or recent work experience suggested they might not be well-versed in exercising judgment and reaching decisions in a group setting. Further, we note the trial court was in a position to observe the prosecutor's demeanor during voir dire, and was entitled to consider its assessment of the prosecutor's candor when deciding she was not engaging in intentional discrimination against female jurors. (People v. Lenix, supra, 44 Cal.4th at p. 613.)
Using a comparative analysis to challenge the court's finding that he had not shown a discriminatory purpose, Spells points out that the prosecutor failed to excuse a male juror (Juror No. 12) who, like M.G., was an attorney. Comparative analysis may be used to show that the prosecutor's proffered reason is pretextual because the proffered reason applies equally to a similarly-situated, retained juror who is not a member of the identified group. (People v. Lewis, supra, 43 Cal.4th at p. 472; People v. Lenix, supra, 44 Cal.4th at pp. 621-622.) Juror No. 12 stated during voir dire that he worked as a civil attorney in mortgage and insurance law, and that he had no experience with criminal law. In contrast to Juror No. 12's legal experience, M.G.'s work in I.N.S. removal proceedings involved review of criminal files and government action against individuals somewhat akin to criminal prosecutions. Given this qualitative difference in their legal employment, the trial court was not required to find that the prosecutor had a discriminatory intent when excusing M.G. based merely on the prosecutor's failure to excuse Juror No. 12.
Spells also points out that the prosecutor did not peremptorily excuse a female juror (Juror No. 2) who entered the jury box after the denial of his Batson/Wheeler motion, and who, like C.H., had been a homemaker for many years. Because Juror No. 2 was called to the jury box after the denial of the Batson/Wheeler motion, the prosecutor's failure to excuse her was not considered by the trial court when making its ruling, and accordingly this circumstance is not relevant on appeal. (See People v. Lenix, supra, 44 Cal.4th at p. 624 [absent renewed objection asking trial court to consider subsequent events, trial court's finding is reviewed on the record as it stands at time Batson/Wheeler ruling is made].) In any event, the trial court could deduce a nondiscriminatory purpose from the failure to excuse Juror No. 2; i.e., if the prosecutor was purposefully excluding females, the prosecutor would also have excused Juror No. 2, and thus the retention of Juror No. 2 supports the prosecutor's gender-neutral reason for excusing C.H. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1020.) Further, the record reflects a distinction in the backgrounds of C.H. and Juror No. 2 which supports that the prosecutor was not fabricating a reason for excusing C.H. C.H. stated that when she was employed before becoming a homemaker, she had only made individual, not group, decisions. In contrast, Juror No. 2's answers indicated that she had been involved in two business endeavors with her husband, from which the prosecutor could deduce some experience with collective decisionmaking in a work environment.
Finally, Spells argues the prosecutor's discriminatory purpose is shown by the fact that the prosecutor did not ask the three excused female jurors any questions during voir dire. The record shows the jurors were first questioned by the court, then by defense counsel, and lastly by the prosecutor. Because the prosecutor had the benefit of the answers already elicited by the court and defense counsel, the prosecutor's failure to question the three jurors does not, standing alone, compel a finding of a gender-based motive for excusing them. As set forth above, the prosecutor's actions vis-a-vis other jurors supports that she was focused on matters related to the stated reasons for excusing the three females; i.e., concerns about how the juror might view the evidence, make judgment calls, and engage in a group decisionmaking process.
The record supports the trial court's finding of no purposeful discrimination.
II. Denial of Request to Dismiss Strike Prior Convictions
Spells admitted that he had incurred four strike prior convictions, consisting of a robbery conviction in 1986; two convictions of aggravated assault with personal use of a deadly weapon in March 1990; and aggravated assault on an officer with personal infliction of great bodily injury in October 1990. Prior to sentencing, Spells requested that the trial court dismiss his strike priors. The court concluded he was not outside the spirit of the Three Strikes law, and denied his request. He was sentenced under the Three Strikes law to 25 years to life, plus one year for a prior prison term enhancement.
Spells argues the trial court's ruling was an abuse of discretion.
Background
The probation report reflects that Spells (age 46 at the time of the current offense) has a criminal history that began when he was a juvenile and continued throughout his adulthood. From 1974 through 1978 (at ages 11 to 15), he was declared and continued as a ward of the court on 12 occasions for conduct including being under the influence, burglary, theft, battery, selling marijuana, and resisting arrest. In November 1979, when he was 16 years old and had just recently been released from the youth authority, he was charged with vehicle theft and other offenses. During the incident giving rise to these offenses, Spells and other young males possessed several guns and engaged in a high-speed evasion from the police in stolen vehicles, resulting in several collisions. While in juvenile hall for these offenses, Spells was involved in several assaults. He was tried as an adult and pleaded guilty to vehicle theft. He was initially placed on probation, but after committing additional offenses in February and May 1981, in July 1981 he was sentenced to three years in prison.
Spells was released from prison on September 2, 1982 at age 19. About three weeks later (on September 25, 1982), he committed vehicle theft. He told a probation officer he was using marijuana laced with PCP, alcohol, and heroin cut with cocaine. He reoffended in October 1983 by stealing a woman's purse; he told a probation officer that he needed money to buy cocaine. For these 1982 and 1983 offenses, he was sentenced to prison for two and three years. He was in prison for about one and one-half years (from February 1984 until September 10, 1985).
On September 16, 1985 (six days after his release), Spells, age 22, committed his first strike offense (the 1986 robbery conviction). He and a companion pulled a gun on the victim and repeatedly hit and kicked the victim. He was sentenced to six years for this offense, and was in prison for about three years (from June 1986 until April 1989).
He apparently violated his parole, and was taken back into custody in June 1989. In July 1989 (about three months after his April release on parole), Spells (age 26) committed his second and third strike offenses (the March 1990 assault convictions) when he stabbed two other inmates at a detention facility. He received a 13-year sentence for these offenses. In March 1990, one day after the jury found him guilty of these assaults, he committed his fourth strike offense (the October 1990 assault on an officer conviction) while in a holding tank. He punched the officer in the face, knocked him unconscious, and repeatedly hit him in the face, causing multiple facial lacerations and a facial fracture. He was sentenced to an additional 13 years for this offense. He was in prison for about 14 years (from December 1990 to June 2005).
In September 2005, about three months after his release, the police saw Spells (age 42) in possession of a syringe. As he was being arrested, he tried to break free by swinging at the officer. He pleaded guilty to resisting an officer and was sentenced to four years in prison. He was in prison for about three years (from September 2005 to November 2008). About 10 months later (in September 2009), Spells (age 46) committed the current charged offense of unlawfully causing a fire. Spells told the probation officer that at the time of this offense he had been using methamphetamine daily; he had not slept for several days; and on the day of the offense he became angry at his girlfriend, threw an ashtray at her, and tried to hit her. He told the probation officer that he was remorseful and wanted help for his drug problem, and he made the same statements in a letter to the court.
In his request for dismissal of his strike prior convictions, Spells argued that his strike priors were remote; his criminal history arose from his lifelong drug addiction; and his current offense was not a serious or violent offense and was committed when he was on a methamphetamine binge. He requested probation so he could attend a drug treatment program.
The trial court denied the dismissal request, concluding Spells was not outside the spirit of the Three Strikes law. The court found that Spell's entire life had been "lawless"; he had a long history of juvenile and adult offenses; and his history on probation and parole had been "abysmal." The court noted that Spells's life was dominated by uncontrolled drug use and anger; his drug use had been pervasive and steady for almost 30 years; he was unable to control his anger even while incarcerated as reflected by the fact that some of his strikes were incurred while in custody; his anger and drug usage played a role in the current offense; and his inability or unwillingness to control his anger and drug use for 30 years did not bode well for his ability to remain law-abiding if he did not receive a life sentence. The court stated that although his strike offenses were old, he had been almost continuously in custody since 1982, and prior to the current offense he had been out of custody only for about 10 months. The court concluded that Spells was "well within what the voters intended when they adopted Three Strikes."
Analysis
The purpose of the Three Strikes law is to impose extended punishment on recidivist offenders who have previously committed violent or serious felonies and who again commit a felony, thus showing they continue to pose a threat to society. (Ewing v. California (2003) 538 U.S. 11, 25-26; People v. Strong (2001) 87 Cal.App.4th 328, 337.) A trial court may dismiss a strike prior conviction if, in light of the nature and circumstances of the current and prior felony convictions and the particulars of the defendant's background, character, and prospects, the defendant is deemed outside the spirit of the Three Strikes law in whole or in part. (People v. Carmony (2004) 33 Cal.4th 367, 377.) On appeal, we review the trial court's decision for abuse of discretion. (Id. at p. 376.) The defendant must show that the trial court's refusal to dismiss the strike prior is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)
The trial court reasonably concluded that Spells did not fall outside the spirit of the Three Strikes law. As observed by the trial court, Spells has offended essentially his entire life, both in and out of custody. Several of his offenses included violence against other persons, including robbing a victim at gunpoint, stabbing inmates, and forcefully punching an officer. He has repeatedly reoffended within short periods of time after his release from custody. For example, he was in prison from February 1984 to September 1985, and six days after his release in September 1985 he committed his first strike offense. He was in prison for about three years (from June 1986 to April 1989), and then several months later (in July 1989 and March 1990) he committed his second, third, and fourth strike offenses while in local custody. He was in prison for about 14 years (from December 1990 to June 2005), and then in September 2005 (three months after his release) he reoffended. He was in prison for about three years (from September 2005 to November 2008), and then in September 2009 (10 months after his release) he committed the current offense. Further, the remoteness of his 1986 and 1990 strike prior convictions does not reflect an ability to be law abiding while free in the community given that he was in prison much of the time between the prior and current offenses.
Spells argues his sentence should be reversed and the matter remanded for resentencing because the trial court focused on his criminal record without considering the " 'entire' picture," including that his current offense was not statutorily-classified as violent or serious, he had performed successfully on parole for 10 months prior to the current offense, he was in a stable relationship, his letter to the court demonstrated insight and remorse, and his age indicated his criminality was on the wane. He asserts that had the court properly exercised its discretion, it could have reasonably dismissed all but one of his strikes so he could receive a determinate, doubled sentence of eight years (double the four-year upper term for his offense).
Spells has not shown that the trial court did not consider all the relevant circumstances when considering his request to dismiss the strike priors. The record reflects that the court reviewed the request for dismissal filed by defense counsel and listened to counsels' oral arguments. Absent a contrary indication in the record, we presume the court properly performed its duty to consider all relevant factors. (People v. Myers (1999) 69 Cal.App.4th 305, 310; see In re Large (2007) 41 Cal.4th 538, 550-551.) None of the factors cited by Spells required the court to find that he was outside the spirit of the Three Strikes law. It is not unreasonable for a court to decline to dismiss strike priors when a defendant has "a long and continuous criminal career." (People v. Strong, supra, 87 Cal.App.4th at p. 338.) Spells readily fits into this category.
The trial court's decision not to dismiss the strike priors was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.