Opinion
A117003
6-26-2008
THE PEOPLE, Plaintiff and Respondent, v. FAJRI YUSUF WAQIA, Defendant and Appellant.
Not to be Published
In this opinion, we hold that where a prosecutors peremptory challenge is used to dismiss a prospective alternate juror, and no alternate jurors actually participate in the panel that convicts the defendant, any error by the trial court in rejecting the defendants assertion that the prosecutors peremptory challenge was discriminatory is harmless beyond a reasonable doubt. We also conclude that the abstract of judgment in this case does not correspond to the trial courts sentencing order with respect to the payment of attorney fees. Accordingly, we modify the judgment in that regard, and otherwise affirm appellants conviction and sentence.
Facts and Procedural Background
Because the issues appellant raises on appeal are limited, we need not recite the facts underlying this appeal in any detail. Suffice it to say that appellant, armed with a gun, committed an attempted robbery of one victim, and a robbery of another victim in a nearby location a few minutes later. He was convicted by a jury of attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664 ), with intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (c)); second degree robbery (§§ 211, 212.5, subd. (c)), with personal use of a firearm (§12022.53, subd. (b)); and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), each with personal use of a firearm (§ 12022.5, subd. (a)(1)). The trial court sentenced appellant to a total of 22 years in state prison. This timely appeal ensued.
All further statutory references are to the Penal Code unless otherwise specified.
Discussion
A. Prosecutors Exercise of Peremptory Challenge
Appellants first issue on appeal concerns the trial courts denial of his Batson/Wheeler motion regarding the prosecutors use of a peremptory challenge to excuse a prospective alternate juror. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162 (Wheeler).) Respondent counters that any error in the trial courts ruling was harmless beyond a reasonable doubt, because no alternate jurors were ever seated as members of the actual jury.
In his reply brief, appellant acknowledges that the California decisions on this point favor respondents position. He argues, however, that several United States Supreme Court decisions imply that the conviction should be reversed, even though the prospective juror in question was an alternate who was never seated, in order to protect against the undermining of public confidence in the jury system caused by the discriminatory exclusion of prospective jurors. (See Batson, supra, 476 U.S. at p. 87; see also Powers v. Ohio (1991) 499 U.S. 400, 406, 412 [discriminatory use of peremptory challenges by prosecution harms "the community at large," and may influence the entire jurys consideration of the case]; but cf. Ross v. Oklahoma (1988) 487 U.S. 81, 86 [finding harmless error where trial court wrongly declined to excuse prospective juror for cause, but juror did not sit on panel due to defendants exercise of peremptory challenge].) Appellant concedes that this position was rejected by our Supreme Court in People v. Turner (1994) 8 Cal.4th 137, 172, overruled on another ground by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5, and People v. Roldan (2005) 35 Cal.4th 646, 703. He argues, however, that the Court of Appeal decision on the same point in People v. Rodriguez (1996) 50 Cal.App.4th 1013 (Rodriguez) was in error in this regard.
Curiously, Rodriguez, supra, treated the issue as one of first impression in California (50 Cal.App.4th at p. 1029), and did not cite People v. Turner, supra, 8 Cal.4th 137, even though it was decided two years earlier and reached the same result.
Whether or not Rodriguez was correctly reasoned does not matter, however. The California Supreme Court has spoken again on the issue since Rodriguez was decided. (People v. Roldan, supra, 35 Cal.4th at p. 703.) We are bound by our Supreme Courts holding on this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we hold that even if there was error in the trial courts denial of appellants Batson/Wheeler motion with respect to the prospective alternate juror (an issue we need not and do not reach), it was harmless beyond a reasonable doubt, because no alternate juror was later substituted into the panel that deliberated on appellants case. Any error therefore is not grounds for reversing appellants conviction.
B. Order to Pay Attorney Fees
Section 987.8, subdivision (b), provides that: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided."
In the present case, appellant was represented by the public defender. At appellants sentencing, the trial court set the value of the attorney fees at $500. Appellants trial counsel made no objection to this valuation, but noted that her client had "no ability, obviously, to pay it," and asked that attorney fees be waived. The trial court responded that only the value of the representation was being set at that time, and explained to appellant that if he could not pay the fees, he could fill out an application form that would be given to him, and the Contra Costa County Office of Revenue Collections would determine whether or not he needed to pay, after reviewing his ability to do so. Appellants trial counsel made no further objection.
The probation report prepared for appellants sentencing reflected that he was 19 years old on the date of his offense, but had not completed high school; had no employment history except for seasonal temporary jobs and occasional work for a relative; and had no income, savings, or assets.
The trial courts minutes state that the court "order[ed] defendant shall pay $500 for the Public Defender Fees through the Office of Revenue Collections." (Original underlining omitted; italics added.) Similarly, the abstract of judgment states that "Defendant shall pay $500.00 for the Public Defender Fees through O.R.C."
On appeal, appellant argues that the order for payment must be deleted, because it was issued without a showing of appellants ability to pay. Respondent counters that the issue is raised prematurely, and is not ripe for review, because the record does not reflect that any determination has been made by the Office of Revenue Collections.
We find no error in the way in which the trial court actually proceeded at the sentencing hearing, but the minutes and the abstract of judgment, in stating that appellant was ordered to pay $500 in attorney fees, do not accurately reflect the courts order. In the sentencing context, the reporters transcript controls over the clerks minutes and the abstract of judgment. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; see People v. Hong (1998) 64 Cal.App.4th 1071, 1075-1081.) Here, in order to be consistent with the trial courts order, the minutes and the abstract of judgment should properly state that appellant was referred to the Office of Revenue Collections for a determination of his ability to pay Public Defender Fees, and that the court valued those fees at $500. Accordingly, we amend the judgment in this one respect, and order corresponding corrections to the minutes and the abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-187.)
Disposition
The judgment is modified to replace the sentence "Defendant shall pay $500.00 for the Public Defender Fees through O.R.C." with the sentence "Defendant is referred to the Office of Revenue Collections for a determination of his ability to pay Public Defender Fees in the amount of $500." The trial court is directed to prepare corrected minutes and a corrected abstract of judgment, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur:
Sepulveda, J.
Rivera, J.