Opinion
A149056
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE THOMPSON III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 15-NF-001522-A)
Clarence Thompson III was convicted by jury of felony first degree burglary (Pen. Code, § 460, subd. (a)), five counts of felony burglary of a motor vehicle (§ 460, subd. (b)), felony identity theft (§ 530.5, subd. (c)(3)), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor vandalism (§ 594, subd. (b)(2)(a)). Thompson admitted having suffered three prior felony convictions and having served three prior prison terms.
Undesignated statutory references are to the Penal Code.
Thompson asserts Batson/Wheeler error in the prosecution's exercise of a peremptory challenge to an African-American member of his prospective jury panel. He also challenges the sufficiency of evidence to sustain his conviction for first degree burglary. We reject both contentions and affirm.
See Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258.
I. BACKGROUND
Thompson was charged by amended information with six counts of felony burglary of a motor vehicle (§ 460, subd. (b)) and one count each of felony first degree burglary (§ 460, subd. (a)), felony identity theft (§ 530.5, subd. (c)(3), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor vandalism (§ 594, subd. (b)(2)(a)). As to the felony counts, it was alleged that Thompson had seven prior felony convictions and had served three prior prison terms within the meanings of sections 1203, subdivision (e)(4) and 667.5, subdivision (b).
The case was tried to a jury. Tian Xiao testified that on February 12, 2016, he parked his car in his girlfriend's parking spot at her Daly City apartment complex at 88 Hillside Boulevard. When he returned from a trip early on February 16, he noticed property he had left inside the car was lying on top of or outside the vehicle. One of his car windows had been broken, and Thompson was hiding in the back of his car. Thompson exited the car, pulled an L-shaped iron rod out of his backpack, and raised it by his head. After Xiao told him to leave, Thompson picked up some chewing gum and said, "These are not valuable. I'm just going to take that," and walked away. When Xiao returned about 10 minutes later, Thompson was again searching through his car. Xiao called the police and provided a description of Thompson.
Daly City Police Officer Cameron Newton responded to Xiao's 911 call. Newton entered the parking structure, saw Thompson climbing some stairs, and noticed two bags in or underneath the stairwell. When Thompson was detained, he was carrying two other bags and wearing a backpack. On Thompson's person, Newton found bank, Social Security, and identification cards for several other people as well as a baggie containing methamphetamine. In a bag from the stairwell, police found credit cards in Thompson's name, a methamphetamine pipe, and other property. In the bags on or near Thompson, police found several other residents' property that had been left in cars parked and locked on the same residential parking level as Xiao's car. Most of these cars had broken windows. In one resident's truck, a toolbox had been pried open. Another resident found an unfamiliar cell phone in her car that contained a photograph of Thompson and a screenshot of his Facebook page. Two witnesses testified that between February 13 and 15, 2016, their cars had been broken into while parked in San Francisco and San Bruno. Property they had left in their cars was found in the bags on or near Thompson. Thompson was charged with possession of these witnesses' identifying information and with burglary of the San Bruno car.
The jury found Thompson guilty on all charges except burglary of the San Bruno car. Thompson admitted three prior convictions and prison terms. He was sentenced to a six-year upper term for the first degree burglary conviction, five concurrent three-year upper terms for the burglary of a motor vehicle convictions, and three one-year enhancements pursuant to section 667.5, subdivision (b), for a total sentence of nine years.
II. DISCUSSION
A. Batson/Wheeler Claim
Thompson argues the trial court erroneously denied his objection to the prosecutor's peremptory challenge of the only African-American then left on the jury panel. We disagree.
1. Background
At the outset of voir dire, the court asked prospective jurors to provide certain biographical information. Prospective juror TJ29, an African-American woman, responded: "I live in South San Francisco. [¶] And I see no reason why I couldn't be fair or impartial to this case. [¶] I have one other adult living in my household. I am an assistant to a financial advisor. [¶] And the other adult in my household is my son. He works at the airport as a bagger, I think that's what it's called. He loads the airplanes with the luggage. [¶] . . . [¶] I do know some police officers, but I wouldn't consider us close friends. [¶] . . . [¶] [I know them t]hrough an acquaintance [at church]. [¶] . . . [¶] . . . And I have served on a jury a couple of times. . . . [¶] . . . [¶] . . . [T]hey were both robbery," and the jury reached a verdict in both cases. The juror confirmed she could set aside her experience in the prior criminal cases and follow jury instructions provided in Thompson's case. Finally, TJ29 said she had never been involved in a crime, and she had lived in San Mateo County a little over 20 years.
In the voir dire transcript, jurors are identified by number in the form of TJ##XXXXX. For example, the juror subject to the Batson/Wheeler motion was identified as "TJ29XXXXX." We refer to her as TJ29 and to other jurors in the same abbreviated fashion.
The prosecutor asked prospective jurors about their attitudes on the "hot topic" of law enforcement. One prospective juror expressed concerns about racism in some law enforcement departments, but said he or she could reserve judgment and decide Thompson's case based solely on the trial evidence. The prosecutor then addressed TJ29:
"[PROSECUTOR]: . . . [TJ29], do you have any thoughts or opinions?
"[TJ29]: No. I - I wait until I see what happened. I mean, I don't make any judgment.
"[PROSECUTOR]: Okay. I wanted to ask you one question. You mentioned that you had law enforcement friends through church. And I know [the court] had asked the question what if you have to go back and talk to these friends after a verdict.
"[TJ29]: I haven't seen them in years.
"[PROSECUTOR]: Perfect. So that's not a problem for you at all, is it? Okay. Great. Thank you."
The prosecutor exercised her third peremptory challenge against TJ17, an African-American man who had a close friend facing the same charges as Thompson, and her fifth peremptory challenge against TJ29, the only African-American then remaining. Thompson raised a Batson/Wheeler objection, and the court commented: "When [TJ29] was excused, the first thought I had was that there would be a Batson/Wheeler motion coming because I can't see any justifiable reason for excusing her," in contrast to the challenge of TJ17. "[T]here was no questioning other than a brief voir dire by the People. . . . I don't believe [defense counsel] had any questions for [her]. . . . If there were any questions it was very brief." The court found a prima facie case of discrimination as to TJ29 and asked the prosecutor to explain the strike.
The court found a "reasonable nonrace-related ground to excuse [TJ17]."
The prosecution provided the following defense of the challenge: "I excused [TJ29] because during my interactions with her, during her entering and exiting the courtroom, I did not feel that she made eye contact with me. I got the sense that she was disinterested and not pleased with being here. [¶] During the Court's questioning of [TJ29], I found her . . . answers to be very brief, very curt, and I overall had a sense that she was not an interested juror. [¶] I did pose questions to her. I did not feel that she was very forthcoming in her answers, which further led me to believe that she was disinterested in this process. [¶] I don't believe that I spent as much time with any one juror in particular which would suggest I was favoring one juror over another. [¶] I asked several short questions to each juror that I had written down a list of questions to ask. [¶] I'd also note that I kicked [TJ38] for very similar reasons. . . . I had a difficult time asking him questions. I didn't feel he was forthcoming with answers. And so it led me to feel as though I didn't really know who this juror was, who I was going to be leaving on my jury. [¶] I'd also note that prior to kicking [TJ29], I had excused a white juror, [TJ11]. And that my reasonings were different, but they had to do with her opinions about evidence and what type of evidence would be required of the People in a case. [¶] I think that the reasons that I excused [TJ17] are very obvious given the fact that he expressed discomfort with this particular case and the fact that he had a childhood friend who was going through a very similar type of case. [¶] And then [TJ33] I excused because I found him difficult to communicate with. I thought that he was hard to understand. I had, in fact, asked the Court to excuse [TJ33] having to do with a language issue, as I personally felt that he was not communicating with ease with me. [¶] And I had concern with how much he was understanding even though he was responding to questions. [¶] So I feel that I have had a good reputation in this courtroom and other courtrooms in this county, and my reasoning for kicking [TJ29] was not based on any sort of racial discrimination."
The prosecutor said she challenged TJ27, who was "Juror Number 4," for the same reasons she challenged TJ29. The voir dire transcript indicates TJ27 was excused for hardship early in the voir dire process, but also indicates the prosecutor's fourth peremptory challenge was against "Juror Number 4, [TJ27]"—an obvious transcription error. Assuming TJ27 was excused early in voir dire as stated in the transcript, the prospective juror in the fourth seat at the time the prosecutor exercised her fourth peremptory challenge was TJ38. TJ38 hesitated in answering questions, which would be consistent with the prosecutor's description of the challenged juror's demeanor. We therefore infer the prosecutor's fourth peremptory challenge was against TJ38. --------
Defense counsel responded: "The entering and exiting the courtroom, . . . we try not to make contact with anybody. I just remember the questions to her that she answered. I thought she answered them openly. [¶] She talked about the police officers. She stressed to let the court know . . . she's not active with the individuals in her church. She just knows them from church. [¶] She seemed pleasant when she spoke . . . ."
The court followed up with the prosecutor: "You mentioned that she didn't have eye contact with you when you were speaking with her; is that correct?" The prosecutor responded: "When I spoke with [TJ29] I felt that she was often looking down or to the side. She was not looking at me straight on. I did not feel like I was connecting with her, which is something that I look for in the jurors who I'm going to be presenting the case to. [¶] It's often a sign to me when a juror is not making eye contact that they are uncomfortable with the situation and they're not going to be fully participating." The court then asked: "[W]hat about entering and exiting the courtroom again?" The prosecutor responded: "Again, I often stand. I - I'm acknowledging people. I'm not speaking with them, but I'm making eye contact with jurors, watching their body language as they are passing me. And I felt that [TJ29] would look away and was dismissive of my presence, which in combination with how she responded while I was specifically asking her questions and asking questions of the group, led me to feel that she was not an interested juror and that she would not actively participate in the process." The court recessed briefly to review relevant case law. The court then asked the prosecutor to further elaborate on TJ29's body language on entering and exiting the courtroom and the prosecutor said: "As opposed to other jurors who would make eye contact with me and acknowledge my presence, she was very dismissive, and I felt she looked away and would not make eye contact with me in the brief exchanges when she was coming to her seat, which there were numerous times where she was entering and exiting directly past me as I'm the closest to the jury box."
The court ruled that the prosecutor had "some race neutral reasons for excluding [TJ29]," including the lack of eye contact during prosecution questioning. "I did not notice this, but I will accept [the prosecutor's] word for it." The court also said the juror's body language as she entered and exited the courtroom was a race-neutral reason for the challenge. Again, "I did not see those [behaviors], but I am going to take [the prosecutor's] word for it . . . . [¶] . . . I think that there are cases that talk about body language is something that can be reflected on and noted by somebody excusing jurors, and there's enough here . . . . [¶] Like I said, I did not notice it, but I will take her word for it." The court denied Thompson's Batson/Wheeler motion.
2. Legal Standards
Our Supreme Court recently "clarif[ied] the constitutionally required duties of California lawyers, trial judges, and appellate judges when a party has raised a claim of discriminatory bias in jury selection." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1154.) The high court stressed that "the ultimate responsibility of safeguarding the integrity of jury selection and our justice system rests with courts." (Id. at p. 1175.)
"At issue in a Batson/Wheeler motion is whether any specific prospective juror is challenged on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citation.] Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal. [Citation.] [¶] When a party raises a claim that an opponent has improperly discriminated in the exercise of peremptory challenges, the court and counsel must follow a three-step process. First, the Batson/Wheeler movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. . . . [¶] Second, if the court finds the movant meets the threshold for demonstrating a prima facie case, the burden shifts to the opponent of the motion to give an adequate nondiscriminatory explanation for the challenges. To meet the second step's requirement, the opponent of the motion must provide 'a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] . . . ' "[U]nless a discriminatory intent is inherent in the prosecutor's explanation," ' the reason will be deemed neutral. [Citation.] [¶] Third, if the opponent indeed tenders a neutral explanation, the trial court must decide whether the movant has proven purposeful discrimination. [Citation.] In order to prevail, the movant must show it was ' "more likely than not that the challenge was improperly motivated." ' " (Gutierrez, supra, 2 Cal.5th at p. 1158.)
The third-step analysis "focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] . . . To assess credibility, the court may consider, ' "among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." ' [Citation.] To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic . . . may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility." (Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.)
"We review a trial court's determination regarding the sufficiency of tendered justifications with ' "great restraint." ' [Citation.] We presume an advocate's use of peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing court addresses the trial court's ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. [Citation.] A trial court's conclusions are entitled to deference only when the court made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' " (Gutierrez, supra, 2 Cal.5th at p. 1159.)
3. Analysis
The People do not dispute that Thompson made a prima facie case of racial discrimination as to juror TJ29. Thompson does not dispute that the prosecutor articulated facially race-neutral reasons for the challenge, thus satisfying the second step of the Batson/Wheeler analysis. The issue before us is whether the trial court reasonably found that the prosecutor tendered a sufficient race-neutral justification for the challenge.
The prosecutor justified the challenge by reference to (1) TJ29's demeanor during interactions with the prosecutor and while entering and exiting the courtroom; (2) TJ29's curt answers and possibly her demeanor during court questioning; (3) TJ29's curt answers during prosecution questioning; (4) comparisons with the prosecutor's other peremptory challenges; and (5) the prosecutor's reputation. Focusing on the first three, Thompson argues the trial court's credibility finding was unreasonable because the court was unable to personally confirm the demeanor described by the prosecutor and the court failed to inquire into the alleged curtness of TJ29's responses to questioning, which is not supported by the record. We disagree.
" '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." ' " (People v. Winbush (2017) 2 Cal.5th 402, 434.) "[T]he trial court must determine whether the advocate allowed his or her calculus to be infected by racial bias and then lied to the court in an attempt to get away with it." (People v. Lenix (2008) 44 Cal.4th 602, 626 (Lenix).)
The trial court extensively questioned the prosecutor about her observations of TJ29's alleged demeanor, allowing the court to observe the prosecutor's demeanor in assessing the sufficiency of this stated reason for the challenge, and verified its understanding of applicable case authority. Defense counsel impliedly disputed the prosecutor's characterization of TJ29's demeanor during prosecution questioning, saying he perceived TJ29 as "pleasant" when she spoke. "[A] prosecutor's demeanor observations, even if not explicitly confirmed by the record, are a permissible race-neutral ground for peremptory excusal, especially when they are not disputed in the trial court." (People v. Mai (2013) 57 Cal.4th 986, 1052.) At the third-step analysis, credibility of the explanation becomes pertinent. " '[E]ven a "trivial reason," if genuine and neutral, will suffice.' " (Lenix, supra, 44 Cal.4th at p. 613.)
" ' "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." ' " (People v. Winbush, supra, 2 Cal.5th at p. 434, citing Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) Here the court acknowledged it had not observed the juror conduct described by the prosecutor, and defense counsel implicitly challenged the prosecutor's statement with his own contrasting observations. However, the court found the prosecutor's explanation credible and accepted her descriptions as true.
"The existence or nonexistence of purposeful racial discrimination is a question of fact." (People v. Lewis (2008) 43 Cal.4th 415, 469, disapproved on other grounds by People v. Black (2014) 58 Cal.4th 912, 919-920.) Trial judges have a superior vantage point in hearing and seeing both the prospective jurors' demeanor in answering questions and the manner in which prosecutors exercise peremptory challenges, and their express and implied factual determinations based on these personal observations are accordingly owed deference by appellate courts that review merely the recorded transcript of the proceedings. (See Lenix, supra, 44 Cal.4th 602, 613-614.) "As a reviewing court, we presume the advocate uses peremptory challenges in a constitutional manner, and defer to the trial court's ability 'to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' " (Id. at p. 626.)
What is required to show a sincere and reasoned evaluation by the court is that "[i]t . . . be discernable from the record that (1) the trial court considered the prosecutor's reasons for the peremptory challenges at issue and found them to be race neutral; (2) those reasons were consistent with the court's observations of what occurred, in terms of the panelist's statements as well as any pertinent nonverbal behavior; and (3) the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges. As to the second point, the court may not have observed every gesture, expression or interaction relied upon by the prosecutor. The judge has a different vantage point, and may have, for example, been looking at another panelist or making a note when the described behavior occurred. But the court must be satisfied that the specifics offered by the prosecutor are consistent with the answers it heard and the overall behavior of the panelist. The record must reflect the trial court's determination on this point [citation], which may be encompassed within the court's general conclusion that it considered the reasons proffered by the prosecution and found them credible." (Lenix, supra, 44 Cal.4th at pp. 625-626.)
We find that the trial court made the necessary sincere and reasoned effort to evaluate the prosecutor's challenge of TJ29 and uphold its finding of no discriminatory animus in the challenge. B. Burglary of a Dwelling
We next consider Thompson's argument that his residential burglary convictions were not supported by sufficient evidence. Thompson argues there was insufficient evidence that he burglarized an inhabited place within the meaning of the first degree burglary statute. We have no difficulty concluding the evidence was sufficient.
In considering an insufficiency of the evidence claim, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "A reviewing court must accept logical inferences the [fact finder] might have drawn from the circumstantial evidence. [Citation.] ' "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417.)
1. Background
The 88 Hillside Boulevard apartment complex occupies a city block bordered on the west and east, respectively, by Mission Street and Hillside Boulevard. Pedestrian entrances to the apartment complex from the surrounding streets can be accessed only with use of a security key fob. Underneath the complex is a multilevel parking structure. The lowest level is accessible by car from Mission Street and consists of public parking. The next level up is accessible from Hillside Boulevard (which is uphill from Mission) and consists of parking for apartment complex residents and their guests. The Hillside entrance is gated and can only be accessed with use of a security key fob. Cars on the Hillside residential parking level can drive down to the Mission public parking level via a ramp, but a "Do Not Enter" sign bars cars from driving up the ramp in the opposite direction. Stairwells and elevators that connect the Mission public parking level to the Hillside residential parking level and the residences generally can only be accessed with a security key fob. Thompson was not a resident of the apartment complex.
2. Legal Standards
"Every person who enters any . . . building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) "Every burglary of an inhabited dwelling house, . . . or the inhabited portion of any other building, is burglary of the first degree." (§ 460, subd. (a).) " '[I]nhabited' means currently being used for dwelling purposes, whether occupied or not." (§ 459.) Several courts have adopted the following rule: "In determining whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is 'functionally interconnected with and immediately contiguous to other portions of the house.' [Citation.] 'Functionally interconnected' means used in related or complementary ways. 'Contiguous' means adjacent, adjoining, nearby or close." (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107; see People v. Coutu (1985) 171 Cal.App.3d 192, 193 [citing cases].)
Many courts have held that entries into residential garages are entries of inhabited places for purposes of a first degree burglary charge. (See People v. Fox (1997) 58 Cal.App.4th 1041, 1044, 1046-1047; People v. Cook (1982) 135 Cal.App.3d 785, 795-796.) In the single-family home context, courts have so held where the garage had only an exterior entrance (People v. Moreno (1984) 158 Cal.App.3d 109, 112), was separated from the house by a covered carport (People v. Ingram (1995) 40 Cal.App.4th 1397, 1402, 1404, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 558-560 & fn. 8), or was nothing more than a carport with two open sides (In re Christopher J. (1980) 102 Cal.App.3d 76, 77-80; but see id. at pp. 80-81 (dis. opn. of Gardner, P.J.)). In the multi-unit building context, courts have so held where the garage had only an exterior entrance (In re Edwardo V. (1999) 70 Cal.App.4th 591, 592-595) or was not completely secured from public access (People v. Thorn (2009) 176 Cal.App.4th 255, 260-263, 266 [carport on ground floor of apartment building with only three walls, open on one side to public space]; see People v. Debouver (2016) 1 Cal.App.5th 972, 981-982 [secured underground garage in building is part of "residence" for purposes of § 667.5, subd. (c)(21)]).
3. Analysis
We have no difficulty concluding that the Hillside-level parking area where the car thefts took place was part of an inhabited place under well-established authority. Thompson broke into cars parked in the residential level of a parking structure that was accessible by car only through a security gate and by foot only through security doors unless one walked the wrong way up a car (not a pedestrian) ramp past a "Do Not Enter" sign. Here, as in People v. Thorn, the residential parking level was "immediately contiguous" to the homes because it was "situated close to and directly underneath the occupied apartments" (People v. Thorn, supra, 176 Cal.App.4th at p. 262), and it was "functionally interconnected" to the residences because it "allow[ed] the designated residents to drive their vehicles off the street and park in a covered location with convenient access to their living space in the apartments above" (id. at p. 263). The first degree burglary conviction is supported by sufficient evidence.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.