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People v. Tucker

Court of Appeal of California
Jul 30, 2008
No. A119304 (Cal. Ct. App. Jul. 30, 2008)

Opinion

A119304

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. CASTER TUCKER, JR., Defendant and Appellant.

Not to be Published


Caster Tucker, Jr. (appellant) appeals from a judgment entered after a jury found him guilty of receiving stolen property (Pen. Code, § 496d, subd. (a) ). He contends his conviction must be reversed because the trial court erred in denying his Wheeler/Batson motion and requiring him to wear an ankle bracelet during trial. We reject his claims and affirm the judgment.

All statutory references are to the Penal Code unless otherwise stated.

People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).

The record does not specify the type of ankle bracelet appellant was required to wear.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2007, a felony complaint was filed charging appellant with unlawful driving or taking of a vehicle (§ 666.5 [repeat offender enhancement for persons previously convicted of unlawful driving or taking of a vehicle under Veh. Code, § 10851, subd. (a)], count one); receiving a stolen vehicle (§ 496d, subd. (a), count two), receiving a stolen license plate (§ 496, subd. (a), count three) and possession of burglary tools (§ 466, count four). The complaint also alleged that appellant had suffered four prior prison terms. The matter proceeded to jury trial on two counts—unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property, a motor vehicle (§ 496d, subd. (a)).

Roberta Slipper testified that she parked her black and gold, 1996 Saturn SL1 car across the street from her house on the evening of June 7, 2007. When she went outside the next morning, her car was gone. Slipper called the police to report that her car had been stolen.

At about 6:50 p.m. on June 9, 2007, Vallejo police officer Timothy Nichols was on patrol in a police car when he noticed a black Saturn SL1 car parked outside a motel called the Relax Inn. Nichols testified that he stopped to investigate because there was something about the license plate that led him to believe investigation was necessary and because he knew that 1996 Saturn cars are frequently stolen. Nichols observed three people in the car. A man in the drivers seat, identified at trial as appellant, and a man seated in the front passenger seat, turned around, looked at Nichols, and appeared to have "startled look[s] on their face[s]." When appellant and the front seat passenger opened their car doors, Nichols ordered them to get back inside the car. Appellant immediately complied, and the front seat passenger complied after repeated requests. Nichols checked the cars vehicle identification number and learned it had been reported stolen. As Nichols transported appellant to the police station, appellant said, "Dont put that car on them. They didnt know nothing about that car. I was just there to pick them up. There were just getting a ride."

Vallejo police officer Peppino Messina testified that at about 6:50 p.m. on June 9, 2007, he went to a motel in response to Nicholss request for back up. After he arrived, he saw appellant exit the drivers seat of a Saturn car and throw a key to the ground. Messina testified that he retrieved the key and took appellant into custody. The ridges of the key were "shaved on both sides on the metal part."

Slipper further testified that she was contacted by the police and went to the Relax Inn to pick up her car. She testified that she did not know appellant and had not given him permission to drive her car. The shaved key recovered by police did not belong to her.

The jury found appellant not guilty of unlawfully driving or taking a vehicle and guilty of receiving stolen property. The trial court sentenced appellant to three years in state prison.

DISCUSSION

1. Wheeler/Batson Error

Appellant contends the trial court erred in denying his Wheeler/Batson motion because the prosecutor improperly used a peremptory challenge to excuse an African-American prospective juror. We reject his contention.

a. Standard

Under California law, both the prosecution and defense are entitled to 20 peremptory challenges of prospective jurors in the trial of an offense punishable by death or life imprisonment, and 10 peremptory challenges in all other felony trials. (Code Civ. Proc., § 231.) While peremptory challenges are intended to allow parties to reject a certain number of jurors for any reason at all, both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race or ethnicity. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 97.)

A Wheeler/Batson motion initiates a three-step process. "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. [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.) "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.]" (Ibid.) In this step, we "rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination." (Wheeler, supra, 22 Cal.3d at p. 282.) "Third, `[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.]" (Johnson v. California, supra, 545 U.S. at p. 168.)

"Ordinarily, we review the trial courts denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions. [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 341.) Where the trial court determines that a prima facie case was not made but does not articulate the standard it used in making that determination, we review the entire record independently to "resolve the legal question whether the record supports an inference that the prosecutor excused a juror" on the basis of race. (Id. at p. 342.)

b. Background

Defense counsel made a Wheeler/Batson motion outside the presence of the venire after the prosecutor exercised a peremptory challenge against one of the potential jurors, Ms. M. Counsel stated: "I would make a motion pursuant to Batson and Wheeler for the District Attorneys excusal or peremptory challenge of [Ms. M]. There doesnt appear to be any basis for it, and I would actually just put that before the Court and ask that [Ms. M] be recalled. . . . [Ms. M] appears to be an African-American female, and other than that, you know, that is the basis for my motion. Shes not indicated an unwillingness or an inability during voir dire to participate fully and completely in these proceedings."

The court responded: "But all the prospective jurors that have previously been excused are subject to the same nonexpression of inability to serve. The only basis youve got is that [Ms. M] is apparently of African-American descent, as is your client, right?" Defense counsel responded: "Yes, your honor."

The court asked the prosecutor if he "wish[ed] to be heard." The prosecutor stated: "I would like to make a record of my reasons for . . . asking the Court to excuse [Ms. M.]. Primarily, Officer Nichols used to work at the San Francisco Police Department. [Ms. M.] indicated that she doesnt remember any of the witnesses. He remembers her and is aware that some of her family members might have had some criminal issues in their past. And as I do with jurors of any color, race, otherwise, thats a concern for me. So that was my primary reason. Thats something that was not apparent on the record. But additionally, on the record, I thought that . . . she just seemed to show a misunderstanding of some of the Courts questions and maybe wasnt grasping things completely. So those are my two reasons, the former being the primary one."

The court ruled: "The Court would note also that this is the first Black juror who has been excused. Theres been no pattern established. There is a specific reason for the excusing by the prosecution, so the request to recall the prospective juror will be denied, and we will proceed."

c. Discussion

It is unclear whether the court in this case found that appellant had established a prima facie case. On this record, it is doubtful that the court could have properly done so. It is well settled that the mere fact that a prospective juror is a member of a cognizable group does not alone establish a prima facie case. (See e.g., People v. Trevino (1997) 55 Cal.App.4th 396, 406 ["No court has held that merely alluding to the fact a party has used its peremptory challenges to exclude members of a particular group, is sufficient to make a prima facie showing of group bias"]; People v. Howard (1992) 1 Cal.4th 1132, 1154 [a defendants attempt to show a prima facie case is "completely inadequate" where he relies solely on the fact that the prosecutor challenged the only two African American prospective jurors].) Here, defense counsel acknowledged that the only basis for the motion was that the prospective juror was African American. Counsel "did not make any effort to set out the other relevant circumstances, such as the prospective juror[s] individual characteristics, the nature of the prosecutors voir dire, or the prospective juror[s] answers to questions. A showing as limited as defendants offers little practical assistance to the trial court." (See People v. Howard, supra, 1 Cal.4th at p. 1154.)

At noted, after defense counsel made a Wheeler/Batson motion, the trial court did not state whether a prima facie showing had been made, but instead asked the prosecutor if he "wish[ed] to be heard."

Even assuming the trial court found that appellant had established a prima facie case and that its finding was proper, we conclude that substantial evidence supports the courts ultimate decision to deny the Wheeler/Batson motion. The prosecutor stated that Officer Nichols recognized Ms. M. as someone whose family members "might have had some criminal issues in their past," and that it appeared Ms. M. was not "grasping things completely." The possibility that Ms. M. was biased against law enforcement due to her family members involvement in the criminal justice system was sufficient to establish a race-neutral basis for challenging her. In addition, it is well settled that "[p]eremptory challenges based on counsels personal observations are not improper." (People v. Perez (1994) 29 Cal.App.4th 1313, 1330, fn. 8.) The prosecutors observation that Ms. M. appeared to be confused or was not "grasping things completely" was a legitimate basis for rebutting a prima facie case of exclusion for group bias. (See People v. Johnson (1989) 47 Cal.3d 1194, 1218 ["Nowhere does Wheeler or Batson say that trivial reasons are invalid"]; People v. Turner (1994) 8 Cal.4th 137, 165 [jurors may be excused based on hunches or arbitrary reasons so long as the reasons are not based on impermissible group bias], overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)

Appellant contends the prosecutors first explanation was suspect because he stated only that Ms. M.s family members "might have had some criminal issues in their past," and did not confirm, by asking Ms. M., whether this information was true. Appellant states the prosecutor asked two other prospective jurors about their relatives who had been involved in the criminal justice system, and speculates that the prosecutor did not ask Ms. M. any such questions, "[p]erhaps [because] the prosecutor knew that Ms. [M.] did not have a family criminal history." The trial court, however, apparently found the prosecutor was being truthful in his representation regarding Ms. M., and we will not disturb that credibility determination on appeal. (See e.g., Batson, supra, 476 U.S. at p. 98, fn. 21 [we give the trial courts findings great deference because they "largely will turn on evaluation of credibility"]; Wheeler, supra, 22 Cal.3d at p. 282 [we will "rely on the good judgment of the trial courts to distinguish bona fide reasons . . . from sham excuses"].)

Of the two prospective jurors who were asked about family members involved in the criminal justice system, one was challenged by the defense and excused, and the other remained on the jury. The race of these other prospective jurors was not established.

Appellant contends that the second reason provided by the prosecutor—that Ms. M. appeared confused or did not understand some of the courts questions—is not supported by the record. However, the defense did not disagree with the prosecutors representations regarding Ms. M.s demeanor. The record shows that when the trial court asked if anyone had any "law enforcement training or experience" or was "somehow involved" in the "big family of the administration of justice," which the court defined as including "[e]verything from the original arrest through the court system, through probation, parole, Department of Corrections," Ms. M. did not raise her hand, despite the fact that she later revealed she had worked for the San Francisco Police Department for 26 years typing and filing police reports. Appellant contends the trial courts question was not broad enough to include clerical jobs at a police department. However, in light of the broad definition of "administration of justice" provided by the court, the prosecutor could reasonably believe Ms. M. should have informed the court that she had worked for the San Francisco Police Department for many years, and that her failure to do so suggested she "wasnt grasping things completely."

Finally, appellant claims the trial court failed to follow its duty to "conduct a meaningful evaluation of whether the prosecutors explanation . . . was credible" because it "made no particularized findings and undertook no effort to determine if the proffered explanation was in fact credible." This argument fails because, although a trial court is required to make "a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known," (People v. Hall (1983) 35 Cal.3d 161, 167), the court is "not required to make specific or detailed comments for the record" to support its finding that a prosecutors explanation is genuine (People v. Reynoso (2003) 31 Cal.4th 903, 919). "This is particularly true where the prosecutors race-neutral reason for exercising a peremptory challenge is based on the prospective jurors demeanor, or similar intangible factors, while in the courtroom." (Ibid.) Here, the trial court, in denying the motion, sufficiently explained its reasons for doing so, stating the prosecutor had provided a "specific reason" for excusing Ms. M., that Ms. M. was the "first Black juror who ha[d] been excused," and that "no pattern [had been] established." There was no Wheeler/Batson error.

Appellant asserts that the trial courts comment that Ms. M. was the "first Black juror who has been excused," and that "[t]heres been no pattern established," shows the court mistakenly believed that the improper excusal of one prospective juror cannot establish Wheeler/Batson error. However, in determining whether to grant a Wheeler/Batson motion, a trial court may properly consider how many members of a cognizable group from the venire have been challenged, and whether a disproportionate number of peremptories are being used against members of the group. (People v. Trevino, 55 Cal.App.4th at p. 403.)

2. Ankle bracelet

Appellant contends the trial court erred in requiring him to wear an ankle bracelet during trial because there was no evidence of a "manifest need" to restrain him. We conclude there was no prejudicial error.

Section 688 provides: "No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge." Thus, a defendant cannot be subjected to "physical restraints of any kind" "unless there is a showing of a manifest need for such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).) "Such a `"[m]anifest need" arises only upon a showing of unruliness, an announced intention to escape, or "[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . ." [Citation.] `Moreover, "[t]he showing of nonconforming behavior . . . must appear as a matter of record . . . . The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion." [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 841 (Hill).)

The trial court addressed the issue of restraints prior to jury selection, commenting, "I do see the ankle issue. Is there anything you wish to present? Its rather unobtrusive, but Mr. Tucker is obviously either wearing a very thick bracelet, or its some sort of device. I wont make mention of it unless you wish me to." Defense counsel responded, "I appreciate it, Your Honor, and actually, I was not looking down below the counsel table, and I would ask . . . that my client be unshackled completely for purposes of this trial when the jury is present." The court responded: "Well, from what I know at this point, unless I receive some sort of assurances from custody personnel that this is not a custody issue, I do know that Mr. Tucker has a substantial criminal record from what Ive been told already, and also that he is in custody at this point, although he is in obviously civilian clothes ready for trial at this time. With a courtroom full of jurors, Im not going to completely take all precautions for security purposes away from the officers involved. Ill let you talk to them. If they tell me theres no issue here about flight or security, Ill be happy to reconsider that, Counsel, but at this point, I think thats about the least we can do.

Defense counsel stated she would "follow up" with the bailiff, and asked that the court do "whatever" it could to keep the device out of view, suggesting, for example, that appellant put a sock over the device or that it be covered up in some manner. The court stated: "Counsel, I think at this point dark socks would probably help, because right now hes wearing white socks, and its a dark bracelet, so it kind of shows up that way to me. Now, I will admit that the jurors have a completely different view, more or less like you. You were not looking down. That was not an object of your observation. The jurors are also off to the side, so they dont see that directly. I happen to be sitting up a little bit and looking straight down, so it was something that I caught. So a pair of dark socks, I think, would go a million times better than the white ones."

After the noon recess, defense counsel stated: "I have spoken with the bailiff, and I did hear their response with respect to the shackling of my client, but . . . for the record, I would like to just renew that request and let the Court rule on that." The court commented that the device was not noticeable, stating: "I would indicate that we have changed. He is now wearing dark socks, and it makes it quite not noticeable unless you are completely looking for such an item on an individual. And I will indicate that if he keeps his feet under the chair or under the table, it should be no problem at this time. If he sticks his feet up on top of the table or sticks them out in front of him, we have an issue."

The court asked the prosecutor if he wished to be heard, and the prosecutor responded: "Thats up to the Sheriffs Department. We dont have a position on that." The bailiff informed the court that he had spoken "to the correctional officers in the back," who "sa[id] its supposed to remain on." The court ruled: "In view of the sole bailiff present for security purposes, the Court will retain the ankle bracelet. As I noted before, it is basically unobtrusive at this time, and unless somebody brings attention to it, its not going to become anything that should be known to the jurors. If someone does make a comment or I notice somebody observing, I will make appropriate orders at that point. [¶] Okay, in the meantime, your request to remove it is denied."

The record in this case does not establish that there was a "manifest need" to physically restrain appellant. There was no showing that appellant threatened to escape or behaved violently before coming to court or while in court. The trial court noted that appellant "has a substantial criminal record from what Ive been told already, and also that he is in custody at this point," but the fact that appellant was in custody for the crimes with which he was charged or that the original information alleged he was previously convicted of several crimes including receiving stolen property and possession of drugs, do not provide sufficient justification for the use of physical restraints. (See, e.g., Duran, supra, 16 Cal.3d at p. 293 [fact that defendant was a state prison inmate convicted of robbery and was charged with a violent crime did not, without more, justify the use of physical restraints].)

Further, it is settled that "a trial court may not delegate to law enforcement personnel the decision whether to shackle a defendant." (People v. Seaton (2001) 26 Cal.4th 598, 651, citing Hill, supra, 17 Cal.4th at p. 841.) Hill stated: "This emphasis that a showing exist on the record of `manifest need for shackles presupposes that it is the trial court, not law enforcement personnel, that must make the decision an accused be physically restrained in the courtroom. A trial court abuses its discretion if it abdicates this decisionmaking responsibility to security personnel or law enforcement. [Citations.]" (Hill, supra, 17 Cal.4th at p. 841, fn. omitted.) Hill held it was error for the trial court not to "determine for itself, whether adequate justification existed to physically restrain defendant in the courtroom," and to "defer[] to the sheriffs departments decision that shackles were necessary." (Id. at p. 842.)

Here, the impetus for restraining appellant originated with the sheriffs department. The court relied on the bailiffs statement that the "correctional officers . . . say [the ankle bracelet was] supposed to remain on," and did not attempt to make its own determination as to whether or why the ankle bracelet was necessary. On the trial courts suggestion, defense counsel spoke to the bailiff about the restraint, "but [decided] . . . for the record, . . . to . . . renew that request and let the Court rule on that." Without inquiring into why physical restraints were necessary, or making its own determination as to whether they were, in fact, necessary, the trial court ordered appellant to remain restrained. This was error because, as noted, "[t]he showing of nonconforming behavior . . . must appear as a matter of record, . . . [and] [t]he imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion. [Citation.]" (Hill, supra, 17 Cal.4th at p. 841, emphasis added.) Because the trial court ruled on the matter without regard to why the sheriffs department believed restraints were necessary, there is no record from which we can conclude there was a "manifest need" to restrain appellant in the courtroom. (See ibid.)

The error, however, was harmless under any standard. (See People v. Ceniceros (1994) 26 Cal.App.4th 266, 278-279 [harmless error review is conducted under either Chapman v. California (1967) 386 U.S. 18, 24, or People v. Watson (1956) 46 Cal.2d 818, 836, depending upon the extent the jury views the restraints].) Courts "have consistently held that courtroom shackling, even if error, [i]s harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendants right to testify or participate in his defense. [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 596.) Such is the case here. Appellant did not testify, and there is no evidence or claim that the ankle bracelet influenced him not to testify. There is also no evidence or claim that the ankle bracelet was visible to the jury, or that any juror ever saw the ankle bracelet. Defense counsel initially did not notice that her client was restrained in any way, and the ankle bracelet was undisputedly "quite not noticeable" after appellant changed into his dark socks. The court noted that jurors would most likely not be able to see the ankle bracelet from where they were sitting, and the defense did not dispute the courts observation. There is no basis to find prejudice.

Moreover, the evidence in this case overwhelmingly established that appellant was guilty of receiving stolen property. Slipper testified that her car was stolen and that she did not know appellant and had not given him permission to use her car. A day or two later, appellant was found sitting in the drivers seat of Slippers car, and the evidence shows he was "startled" when police arrived at the scene. There was evidence that he attempted to leave the car, attempted to dispose of a shaved key to the car by throwing it to the ground, and made statements to the police showing he was responsible for the stolen car. Given the strength of the case against appellant, we conclude it is not possible that "an occasional glimpse" of an ankle bracelet could have affected the jurys assessment of the evidence or its verdict. (See People v. Seaton, supra, 26 Cal.4th at p. 652; People v. Cunningham (2001) 25 Cal.4th 926, 988-989; People v. Tuilaepa (1992) 4 Cal.4th 569, 584-585.)

In light of our conclusion that there was no Wheeler/Batson error, and that the error requiring appellant to wear an ankle bracelet was not prejudicial, we reject appellants contention that "[i]ndependently and cumulatively, the trial courts errors warrant reversal . . . ."

DISPOSITION

The judgment is affirmed.

We concur:

Siggins, J.

Jenkins, J.


Summaries of

People v. Tucker

Court of Appeal of California
Jul 30, 2008
No. A119304 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Tucker

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CASTER TUCKER, JR., Defendant and…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. A119304 (Cal. Ct. App. Jul. 30, 2008)