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People v. Stewart

California Court of Appeals, Third District, Sacramento
Apr 14, 2009
No. C055324 (Cal. Ct. App. Apr. 14, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. LEE STEWART, JR., Defendant and Appellant. C055324 California Court of Appeal, Third District, Sacramento April 14, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 06F07531

DAVIS, J.

Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant’s sole contention is that the trial court should have granted his Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]) because the prosecutor excused two prospective jurors because of their race. We disagree. However, the Attorney General has identified a sentence ambiguity requiring remand, and defendant does not object.

The jury convicted defendant of selling rock cocaine on August 26, 2006, and the trial court found he had a strike and two prior prison terms. (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 667, subds. (b)-(i) & 1170.12, 667.5, subd. (b).) The court sentenced defendant to state prison and he timely appealed. We shall affirm and remand.

Discussion

I. Wheeler/Batson Motion

Defendant contends the prosecutor exercised peremptory challenges based on the race of the prospective jurors.

“A prosecutor asked to explain his conduct must provide a ‘“clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix), italics added by Lenix.)

“At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office who employs him or her. [Citation.]” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)

“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.] 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. [Citation.] 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.’” (Lenix, supra, 44 Cal.4th at pp. 613-614.)

In voir dire, prospective Juror M. stated that she had never been accused “of a crime -- of the crime. I know of people that have had that happen before[.]” Apart from the issue of medical marijuana, she did not object to drug laws. When asked about similar crimes, she stated: “I have relatives on my dad’s side, you know, circumstances in life that have had them have to support themselves illegally.” These were “[u]ncles and cousins.” She then stated there were “maybe two. And it was when they were younger, and it was really vague. I don’t know the details of it, but I know that’s what they have done in the past.” She knew it involved selling drugs but she did not know what kind of drugs.

When prospective Juror S. was questioned during voir dire, she stated that her brother had been accused of possession of marijuana in Los Angeles County in about 1976, but he did not have to go to court and she did not think he had been treated unfairly. She had a friend who had used cocaine in the 1980’s, but this was not a close friend (Ms. S. referred to their relationship as “[n]eutral”), and stated that this would not affect her ability to be fair.

After these jurors had been excused, the defense objected. In response to the trial court’s inquiry, the prosecutor explained the reasons for the challenges as follows:

“With regard to Ms. [S.] in particular, she had friends that had used this particular drug in this trial, specifically cocaine. She had a brother accused of possession. Those factors alone, based on my experience as a trial deputy in doing these types of cases, the fact that she has personal knowledge and a personal history, knowing people who use and/or possess cocaine is the main reason why I kicked Ms. [S.]

“With regard to Ms. [M.], up on the stand she said that she had never been arrested –- not on the stand. I’m sorry. In the jury box when [questioned] by Your Honor and in answering the questions during voir dire. On her sheet she puts I have been arrested but not charged. She also had relatives, several if I remember, who had been involved with arrests for possession of drugs and murder, I believe, on her sheet. She put that as being victims of crime, although I believe during voir dire she clarified and she said no she had friends, brothers, relatives arrested for possession of drugs, use of drugs. Again, that is my reason for kicking Ms. [M.]”

The prosecutor denied acting based on race.

After defendant’s counsel argued these reasons did not distinguish Ms. S and Ms. M., the only remaining African-Americans on the panel, from other jurors, the trial court denied the motion:

“I think [the prosecutor’s] explanations are plausible and logical under the circumstances, and I’m satisfied that the challenges were based on individual reasons having to do with the responses the prospective jurors gave in open [court] and on the written questionnaires and were not based on their race.”

On appeal, defendant contends that the trial court did not adequately inquire into the reasons given for challenging these jurors, and that those reasons are not genuine, a claim largely based on a comparison between these two jurors and other jurors who purportedly gave similar answers.

But defendant has failed to provide us with a complete record. The prosecutor, in explaining the reasons for the challenges, in part referred to written questionnaires, and in ruling on the matter the trial court explicitly referred to “questionnaires” in the plural. Appellate counsel has not provided this court with those documents.

The California Supreme Court has held that where jury questionnaires were lost in a capital case, it would assume they were consistent with the prosecutor’s representations: “Although defense counsel justifiably could assume that the questionnaires ultimately would become part of the record on appeal, this circumstance did not relieve counsel of the obligation to bring to the trial court’s attention any disagreement with the prosecutor’s representations as to the content of the questionnaires.” (People v. Heard (2003) 31 Cal.4th 946, 970, see id. at p. 969.) Here, there is no indication that appellate counsel took any steps to have the documents included in the record on appeal; counsel merely observes in a footnote that the questionnaires are not in the appellate record. We cannot fault the trial court for an inadequate inquiry into the reasons, nor fault its decision to deny defendant’s Batson/Wheeler motion, when we do not have all the information the trial court used in making its decision.

For example, defendant contends the prosecutor misstated Ms. M.’s history by stating she had been arrested. It is clear the prosecutor was referring in part to Ms. M.’s written questionnaire and in part to her reply on voir dire. The prosecutor stated that “she said that she had never been arrested.... On her sheet she puts I have been arrested but not charged.” (Italics added.) During voir dire, Ms. M. stated she had never been accused “of a crime -- of the crime.” Given the prosecutor’s statement about the questionnaire, the logical reading of the record we do have is that Ms. M. meant she had never been accused of the particular crime charged in this case.

Similarly, defendant faults the prosecutor because the prosecutor stated that Ms. S. had “friends” (plural) who used cocaine. In voir dire, however, she referred only to one friend, and that was long ago. Trial counsel did not contradict the prosecutor’s use of the plural and therefore we must assume the questionnaire referred to one or more other friends. If defendant wanted to persuade us that the prosecutor exaggerated Ms. S.’s connections to drug users, the way to do it would have been to have the record augmented to include the questionnaires and demonstrate that nothing in them supported the prosecutor’s stated reasons for her peremptory challenge of Ms. S.

Defendant attempts to compare Ms. M. and Ms. S. to Ms. P., a juror who was questioned later during jury selection. Ms. P. stated that her daughter had been arrested in the 1990’s for possession and use of drugs. But we must review the trial court’s ruling based on the record then before the trial court: “[T]he trial court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments.” (Lenix, supra, 44 Cal.4th at p. 624.) Moreover, Ms. P.’s experience with drugs was decidedly negative. She and her husband had to raise their grandchild because of her daughter’s poor choices; thus, Ms. P. was objectively suitable to the prosecution.

Defendant also attempts to compare Ms. M. and Ms. S. to two jurors who had friends and/or family with drug connections who had been questioned before the Wheeler/Batson motion, but who were later peremptorily challenged by the prosecutor. As the Attorney General notes, the fact that these jurors were challenged shows that the prosecutor was consistent. In defendant’s reply brief, he states that these jurors are “not pertinent, under Lenix, for the narrow purpose of performing a comparative juror analysis at this stage.” But defendant then argues the fact that the prosecutor passed on two white jurors with drug contacts until after challenging two African-American jurors with drug contacts creates an inference of racism.

We disagree. The record we have shows that that the prosecutor consistently excluded jurors with drug contacts, regardless of the race of the juror in question. Challenges alternated between the prosecution and the defense and the prosecutor was not asked to explain why the challenges were made in a particular order. We will not presume it was due to racism.

No Wheeler/Batson error was committed.

II. Sentencing Ambiguity

As the Attorney General notes, there is a lack of clarity regarding defendant’s sentence. The trial court first stated it would impose an eight-year sentence. The court then addressed a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), which included an oral request to stay “the prior prison term additional years,” referring to more than one prior prison term allegation. The trial court denied the Romero motion, in part stating “I think it would be [a] misuse of my discretion to strike the prior prison allegations in the circumstances.”

The trial court then imposed the low term of three years, doubled for the strike, and continued “... I order that you serve an additional one year pursuant to section 667.5 for the prior conviction coming within that section for a total of eight years in the state prison.” The fact the record refers to and only to one prior prison term may well reflect a transcription error by the court reporter. In any event, the minutes and the abstract both reflect that defendant’s total sentence is seven years, and the minute order specifies that defendant has been sentenced to state prison for one year for “Prior Conv #2”; the minute order does not specify a prison term for defendant’s other prior conviction.

Nothing in the record indicates the court meant to strike one of the prior prison terms; however, we cannot reconcile the conflicts with the existing record. The Attorney General requests that we remand for clarification. Defendant does not oppose this request. We grant the request.

Disposition

The judgment is affirmed. The matter is remanded to the trial court for clarification of the sentence in accordance with the views expressed in this opinion. After defendant’s sentence is clarified, the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.


Summaries of

People v. Stewart

California Court of Appeals, Third District, Sacramento
Apr 14, 2009
No. C055324 (Cal. Ct. App. Apr. 14, 2009)
Case details for

People v. Stewart

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LEE STEWART, JR., Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 14, 2009

Citations

No. C055324 (Cal. Ct. App. Apr. 14, 2009)