Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD195351/SCD196023, Bernard E. Revak, Judge.
O'ROURKE, J.
A jury found Gary Gaston Spencer guilty of assault with a firearm (Penal Code, § 245, subd. (a)(2); count 1) and discharge of a firearm in a grossly negligent manner (§ 246.3; count 2). With respect to count 1, the jury found true that he personally used a deadly weapon (§ 12022.5, subd. (a).) In bifurcated proceedings, the court found him guilty of being a felon in possession of a firearm (§ 12021, subd. (c)(1); count 3.) The court sentenced him to seven years in prison as follows: the middle term of three years on count 1, plus the middle term of four years for the firearm enhancement; the sentence on counts 2 and 3 was imposed and stayed under section 654.
All further statutory references are to the Penal Code unless otherwise stated.
Although not the subject of this appeal, in a separate case Spencer was charged with forcible rape while acting in concert (§§ 261, subd. (a)(2); 264.1; count one); rape of an intoxicated person (§ 261, subd. (a)(3); counts 2, 6, and 8); oral copulation by acting in concert (§ 288a, subd. (d); count three); oral copulation of an intoxicated person (§ 288a, subd. (i); count four); and forcible rape (§ 261, subd. (a)(2); counts 5 and 7.) Spencer pled guilty to a newly added sexual battery charge (§ 243.4; count 9) under People v. West (1970) 3 Cal.3d 595, and the prosecutor dismissed all other counts. The parties stipulated to a three-year prison sentence to run concurrently with the sentence in this case.
Spencer contends the judgment should be reversed because the trial court erroneously: (1) denied his Batson/Wheeler motion; (2) failed to instruct sua sponte regarding self-defense; and (3) admitted into evidence, over his objection, testimony by Spencer's neighbor that she saw Spencer with a firearm approximately one month before he committed the charged crimes. We affirm.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
FACTUAL AND PROCEDURAL BACKGROUND
Wendy Floyd testified that on October 14, 2005, she, Tamira Mathis, and Mathis's boyfriend, Spencer, who is African-American, went to the Boulevard Bar in San Diego. A man came over and talked to Floyd. Spencer became agitated and irritated, and said a group of males were "looking at him the wrong way." He became angrier during the night and said, "If they want to see me represent, I'm going to represent." Floyd left the bar, fearing an altercation would start. As she got outside, she heard the sound of glass breaking inside the bar. Approximately a minute later, Mathis and Spencer came outside and the three of them headed away from the bar. Spencer walked backwards and faced about five men from the bar, who followed at a distance of approximately 28 feet. Spencer and the men — one of whom carried a street sign on a post — yelled hostile comments at each other. Spencer and Mathis ran through an alley and towards their apartment.
The men told Floyd that Spencer had hit one of their female friends, and asked where he lived. Floyd did not answer the question, but instead tried to defuse the situation. Approximately three minutes later, someone suddenly fired about five or six shots. The police arrived, and Floyd gave them a statement.
Justin Nobles, an active enlisted person in the Navy, testified he was at the bar and danced twice with Floyd. After the second dance, Spencer told him to "back the fuck off." Spencer told Nobles' friend that Spencer "would fuck him up too, if he didn't stay out of it." To show goodwill, Nobles offered to buy Spencer a beer. As Nobles turned from the bar with the beer, Spencer punched him twice in the face.
Esperanza Gonzalez testified she was at the bar, heard a scuffle, and saw Spencer swinging his fist at her boyfriend. Gonzalez and others tried to separate them, but Spencer shook her off and elbowed her. She fell backwards, hit her head and was momentarily knocked out. She saw approximately six people leave the bar. She gave the police a statement and identified Spencer in a photographic lineup.
Yoshymatan Oba testified he was outside the bar and heard the sound of bottles breaking inside. Spencer and two women left the bar and ran past him, followed by Oba's Navy shipmates. Spencer was approximately half a block ahead of his pursuers, brandished a knife and taunted them. The pursuers shouted racial slurs at Spencer. When they reached the alley entrance, which was somewhat dark, they talked to Floyd. Suddenly, Oba saw an individual in the alley, who he assumed was Spencer, based on his attire. Oba walked towards him, and saw him raise his hand, and saw a muzzle flash. Gunshots rang out. Oba ran, and realizing he was bleeding, went to the hospital. A bullet was lodged in his right knee, and he had bullet fragments in the back of his leg. A bullet had grazed his right foot, left elbow, and left hip. At the time of trial he walked with a limp and felt pain during cold weather.
Kyle Mann testified he joined those who chased Spencer, and saw Spencer pull out a knife and wave it at them. When they reached the beginning of the alley, they stopped and talked to a woman. Approximately five to ten minutes later, Mann saw Spencer in the alley fire a gun in the air and then point it at the group and start firing. Mann recognized Spencer's features and the clothes he was wearing. Mann was 100 percent certain of his subsequent positive identification of Spencer in a photo lineup.
Catrin Lewis testified on direct examination that she lived in the same apartment complex as Spencer. In October 2005, she was at his apartment and saw him retrieve a gun from his couch and put it in his waistband. On cross-examination, defense counsel elicited testimony that Lewis once permitted Spencer to babysit her son, with no concern he would be an improper caretaker. Lewis subsequently sought a restraining order against Spencer, but she did not mention in her supporting declaration that he possessed a gun. On redirect examination, Lewis testified she sought the restraining order because Spencer had assaulted her.
Spencer did not testify at trial. Tamira Mathis testified for the defense that Spencer was her fiancé at the time of the incident. She and he ran from the bar and were chased by a mob of approximately twenty men who called him "nigger;" Spencer, in turn, called them "cracker." She saw Spencer run through the alley and up the stairs of their apartment and open the screen door. She went in the alley to look for Floyd. While there, she heard gunshots coming from the alley, but she did not see the shooter. She was stuck behind a car for approximately two minutes and immediately ran to her apartment. Spencer was inside, the music was playing, and there was no smell of gunfire in the air. She asked Spencer if he had heard the gunshots. She went back outside looking for Floyd, but did not find her. She returned to the apartment and she and Spencer remained inside and slept.
DISCUSSION
I.
Spencer contends the trial court, in denying his Batson/Wheeler motion, erred by not expressly stating whether Spencer had established a prima facie case of racial discrimination. However, when, as here, a trial court fails to make an express prima facie finding, an appellate court must review the entire record to determine if substantial evidence supports the trial court's ruling. (People v. Davenport (1995) 11 Cal.4th 1171, 1200-1201, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
Spencer further contends the trial court failed to discharge its duty of determining whether the prosecutor's proffered reasons for using three of her seven peremptory challenges against minority women were discriminatory. We disagree.
During voir dire of prospective juror number 8, who Spencer describes as being, "of Latin American descent," she stated that her in-laws had been "charged with narcotics" and the case currently was before the courts. The prosecutor asked if she was capable of being "a completely nonbiased juror." She responded, "I don't think so, that's a problem." The prosecutor exercised a peremptory challenge to excuse her. Prospective juror number 6, who Spencer describes as being "of Asian descent," stated she was single and a student in Berkeley. The prosecutor exercised a peremptory challenge to excuse her.
The prosecutor asked the second prospective juror number 6 — who was African-American — whether, if she learned that a witness used racial slurs during a confrontation, she would have "a tendency to discredit that entire witness' testimony." She responded, "It really depends on the situation. Like the gentleman said earlier, it does tell what that person really feels and if in any way that person is in any way prejudiced, yes, I would have a problem with their testimony." The prosecutor exercised a peremptory challenge to excuse her.
At that point, defense counsel objected under Batson/Wheeler that the prosecutor had exercised three out of seven peremptory challenges against minority women. The trial court responded, "Okay. Well, I have been watching pretty carefully and, in fact, I think the defense itself challenged an individual . . . I don't know if she's Filipino or exactly what ethnicity. [¶] And as far as [the second prospective juror number 6], not only did she respond to the inquiry by the prosecutor about racial slurs, but . . . [¶] And I just find it difficult with [her] that she could not recollect until we've done — had done all the questioning of her that she, in fact, had been a victim of a carjack, which to me is a pretty unusual event and certainly something that under normal circumstances a person would remember, particularly in this case where we've had a lot of discussion about crimes of violence. And so I'm going to deny that motion. As far as [prospective juror number 8] was concerned, I think she responded to a couple of questions put to her that were proper for consideration of peremptory challenge. I think the record will bear that out. [¶] And [prospective juror number 8], I don't know that she is Hispanic. Her last name might suggest it, but I'm not — I Don't know what her ethnicity is. But again, she's a young woman. Prosecutor explained her challenge."
The prosecutor then interjected, "If I may just for the record put it on the record just out of an abundance of caution. [¶] Regarding [the second prospective juror number 6], the People's main concern is when we asked her about whether she was a victim of discrimination, she said yes. Then I followed up about the racial slurs, if she believed that a witness in this case or witnesses did use racial slurs, would that give her reason to discredit their entire testimony, which [sic] she said yes. [¶] I had a big problem with that, as well as what the court pointed out the fact that she did not recollect being carjacked, which is a very traumatic incident. [¶] Regarding the other . . . prospective jurors, [the first prospective juror number 6 and prospective juror number 8], they are all very — well, it seemed to me very young jurors, prospective jurors who — one was in college, her first year of college. All of them were single, no children. Didn't really have a stake in the community. [¶] And that's what the People are trying to impanel and get jurors on this panel, people who have life experience, have stake [sic] in the community, families and so forth." The trial court concluded, "All right, we have a record."
A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias violates the federal and state Constitutions. (People v. Huggins (2006) 38 Cal.4th 175, 226 (Huggins); Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) When a defendant objects to the prosecutor's peremptory challenges as discriminatory, the trial court uses a three-step procedure to evaluate the issue. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the [defendant] has proved purposeful racial discrimination.' " (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson) , fn. omitted.)
In Johnson, the United States Supreme Court held that a defendant satisfies the first step "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred" (Johnson, supra, 545 U.S. at p. 170) and that, if this showing were made, the trial court should not speculate about the prosecutor's reasons but should move to the second step and require the prosecutor to set forth a race-neutral explanation. (Ibid.)
These first two steps govern the production of evidence, whereas at the third step the trial court determines the persuasiveness of the defendant's constitutional claim. (Johnson, supra, 545 U.S. at pp. 169-171.) At the third step, the defendant "carries the 'burden of persuasion' to ' "prove the existence of purposeful discrimination." ' " (Id. at pp. 170-171.) To carry this burden, the defendant may point to such factors as the prosecutor's striking of most or all members of an identified group, the prosecutor's use of a disproportionate number of peremptory challenges against the group, the heterogeneity of the stricken jurors apart from their membership in the identified group, the prosecutor's failure to engage the stricken jurors in significant voir dire, and the prosecutor's failure to ask the stricken jurors about the issue of claimed concern. (People v. Reynoso (2003) 31 Cal.4th 903, 914 (Reynoso); Huggins, supra, 38 Cal.4th at p. 233.)
When reviewing the prosecutor's showing, the trial court may consider " 'how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy.' " (Huggins, supra, 38 Cal.4th at p. 233.) The prosecutor may justify the challenges by showing that they were exercised " 'on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses i.e., for reasons of specific bias,' " or by referring " 'to the totality of the circumstances' "; for example, " 'demonstrat[ing] that in the course of . . . voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds.' " (Reynoso, supra, 31 Cal.4th at p. 915.) The prosecutor's justification need not rise to the level of a challenge for cause, and "even a 'trivial' reason, [or a hunch,] if genuine and neutral, will suffice." (People v. Arias (1996) 13 Cal.4th 92, 136.) For example, a trial court may credit a prosecutor's claim of a nondiscriminatory motive based on such matters as " 'the prospective jurors' body language or manner of answering questions.' " (Reynoso, supra, 31 Cal.4th at p. 917.) "The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons." (Id. at p. 924.) However, " 'implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.' " (Id. at p. 916.)
In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, the trial judge " 'must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . ." ' " (Reynoso, supra, 31 Cal.4th at p. 919.) The trial judge's findings " ' "largely will turn on evaluation of credibility." ' " (Id. at p. 918.) On appeal, we review the trial court's ruling on purposeful discrimination for substantial evidence. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009.) "It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court's ability to distinguish 'bona fide reasons from sham excuses.' [Citation.] As long as the court makes a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' " (Ibid.)
Here, the evidence would show Spencer and his pursuers used racial slurs against each other. Therefore, the comment by the second prospective juror number six that she would tend to discredit the entire testimony of someone who used racial slurs, if that individual was in any way prejudiced, provided a bona fide, race-neutral reason for the prosecutor to exercise a peremptory challenge to excuse that juror, who had demonstrated a reasonable probability she would not be impartial, and would not maintain an open mind to all the facts and evidence of the case.
The prosecutor's stated justification for exercising peremptory challenges of the other two jurors, was their youth and lack of ties to the community. We have been presented no reason to doubt this justification was bona fide. The California Supreme Court has found no Batson/Wheeler violation when a prosecutor exercised peremptory challenges because one juror was "a youthful college student with insufficient maturity to accept the responsibility involved in serving on a death penalty case; and [another juror] was very young and appeared immature." (People v. Sims (1993) 5 Cal.4th 405, 430; accord People v. Perez (1994) 29 Cal.App.4th 1313, 1328 ["Limited life experience is a race-neutral explanation"].) Accordingly, we affirm the trial court's ruling on the Batson/Wheeler challenge because the record established the prosecution exercised the preemptory challenges for race-neutral reasons.
II.
Spencer contends the trial court should have instructed sua sponte regarding self-defense, because a mob of angry white men chased him, threatened him, and insulted him with racial slurs.
"[A] trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited [than the duty to instruct on a lesser included offense], arising 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (People v. Barton (1995) 12 Cal.4th 186, 195.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (Id. at p. 201, fn. 8.) Here, there was no evidence supporting a self-defense instruction. Spencer concedes on appeal that at trial his defense was that he was not the shooter, and that no trial evidence established the shooter's identity. Contrary to Spencer's argument on appeal, a self-defense instruction would have contradicted his defense at trial. It was impossible for him to simultaneously claim he was not the shooter and was in his apartment at the time, and claim he only fired the shots because he was in imminent danger. Accordingly, there was no basis for the self-defense instruction, and the trial court did not err in not giving it sua sponte.
III.
Spencer contends, "The trial court abused its discretion by admitting [Lewis's] testimony [he] possessed a gun. The evidence had some relevance because it raised an inference [he] possessed a gun the evening in question. However, the prejudicial effect of the jury learning [he] had allegedly assaulted [Lewis] and she sought a restraining order far outweighed the probative value of the evidence." We preliminarily note that Spencer conflates two issues that are properly kept separate: Lewis's testimony regarding Spencer's gun possession, and testimony regarding the assault (which did not involve the use of a gun).
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) Relevant evidence is evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) In addition, even where evidence is relevant, the trial court "may exclude [that] evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing issues, or of misleading the jury." (Evid. Code, § 352.) In determining the relevance of evidence and whether it should be excluded as unduly prejudicial, confusing or misleading, the trial court is vested with broad discretion, and its rulings will be reversed on appeal only where an abuse of that discretion is demonstrated. (People v. Harris (2005) 37 Cal.4th 310, 337; People v. Jordon (1986) 42 Cal.3d 308, 316.)
Spencer concedes that the testimony relating to his gun possession was relevant. We agree it was, and it also was probative because it showed that in the month before the shooting he possessed a gun. Spencer presents no argument that this aspect of Lewis' testimony was prejudicial; therefore, we reject the contention the trial court abused its discretion in admitting it into evidence.
Spencer's prejudice argument relates only to Lewis' testimony regarding Spencer's assault. The prosecutor did not raise this topic on direct examination of Lewis. Instead, Spencer opened the door for that testimony by eliciting cross-examination testimony that Lewis once permitted Spencer to babysit her son, with no concern he would be an improper caretaker; further, when Lewis sought a restraining order against Spencer, her supporting declaration did not mention that he possessed a gun. Given this testimony, the prosecutor on redirect examination permissibly questioned the circumstances surrounding Lewis's need for the restraining order, and Lewis testified regarding the assault. On appeal, Spencer does not contend the trial court erred in permitting this redirect examination; but even if he did, any trial court error was invited by Spencer's cross-examination. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 34.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. McINTYRE, J.