Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA075183, Carey H. Nishimoto, Judge.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
We appointed counsel to represent appellant in this matter. After examining the record, counsel filed a “Wende” brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We directed appointed counsel to immediately send the record on this appeal and a copy of the opening brief to appellant and notified appellant that within 30 days from the date of the notice he could submit by brief or letter any grounds of appeal, contentions or argument he wished us to consider. We received no response from appellant. Appellant did, however, include several “grounds for appeal” in the notice of appeal he filed in propria persona. None of these grounds bears a reasonable chance of leading to a more favorable outcome for appellant for the reasons we explain below. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.) In addition, we have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.)
We set out below a brief description of the facts and procedural history of the case, the crimes of which the appellant was convicted, and the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 110.)
Willie Washington and Joy McLean had known each other for more than 30 years and were living together at the time of the incident. Recently, Washington and McLean had not been getting along and Washington agreed he would move out that weekend. When McLean returned from church and found Washington still in the house, she became angry. Washington told McLean he was going to move out but “it was going to take him a little time.” McLean believed Washington had had enough time to find a place to live and she and Washington had “words.” After they had argued for approximately half an hour, Washington struck McLean on the right side of her jaw. McLean told Washington she was going to call the police and the two of them argued some more. In the course of the argument Washington told McLean, “you [are] going to die tonight.” Washington and McLean were standing approximately a foot and a half from each other when Washington picked up his gun from the coffee table and fired it. The bullet whizzed by McLean’s ear.
A jury convicted Washington of simple assault and making a criminal threat. The court imposed a jail sentence, which was offset against time served, placed Washington on probation and imposed various fines.
We briefly discuss the issues raised in Washington’s notice of appeal.
(1) Exclusion of African-Americans from the venire.
Trial was originally scheduled for the Inglewood courthouse. When the court announced that the trial would be moved to Torrance, Washington moved to have the jurors who would have been in the Inglewood jury pool sent to Torrance. He made this request on two grounds. An investigation that his counsel conducted a few months earlier showed that of 885 jurors summoned to the Torrance courthouse 84 percent were from Torrance and communities to the south and west of the Torrance courthouse. (This leads to the conclusion that only 16 percent of the potential jurors were from communities with heavier African-American populations such as Inglewood and Compton which are also within the 20-mile radius of the Torrance courthouse.) Counsel’s research further showed that moving the trial from Inglewood to Torrance decreased the expected percentage of African-Americans in the venire from 19.43 percent to 4.71 percent. Defendant also argued that due process required the jurors in his trial be drawn from the area around Inglewood, where the alleged crime occurred. The court denied the motion to transfer the Inglewood venire to Torrance and denied defendant a continuance to conduct more discovery on the representation of African-Americans in the Torrance venires.
Code of Civil Procedure section 197, subdivision (a) requires that “[a]ll persons selected for jury service shall be selected at random, from a... representative cross section of the population served by the court.” (Italics added.) The policy in Los Angeles County is to draw jurors from within a 20-mile radius of the courthouse where they will serve. “‘In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’” (People v. Howard (1992) 1 Cal.4th 1132, 1159.) Defendant’s evidence satisfied only the first prong of the test—African-Americans are a “distinctive group” in the Inglewood and Torrance communities. Defendant failed to show that the Torrance venires are not “fair and reasonable” in relation to the number of African-Americans within 20 miles of the Torrance courthouse. In fact, defendant produced no evidence of the number of African-Americans within that area. Furthermore, the data he did produce is based on the number of persons reporting to jury duty at the Inglewood and Torrance courthouses not, as he states in his declaration, the number of potential jurors summoned to those courthouses. Thus, his statistics do not take into account the many reasons why persons summoned to jury duty do not actually report. Furthermore, defendant’s statistics cover only one month and they assume that the percentage of African-Americans eligible for jury service is the same as their percentage in the relevant populations. Lastly, defendant did not satisfy the third prong by showing that the county selected the jury pool in a constitutionally impermissible manner that was the probable cause of the disparity. (People v. Bell (1989) 49 Cal.3d 502, 524.)
The court did not abuse its discretion in denying defendant a continuance to conduct further discovery on the fair representation issue. As the court pointed out at the argument on the motion, the transfer of criminal cases from Inglewood to Torrance is a common occurrence so defense counsel, a deputy public defender, had ample time to conduct discovery on the fair representation issue.
Finally, there is no constitutional requirement that states prosecute crimes in the communities where they occur. (Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.)
(2) Failing to make sufficient inquiry into claims of financial hardship by prospective African-American jurors.
During voir dire, defense counsel observed that the court excused three African-American jurors for financial hardship “with no real significant inquiry.” The power to excuse prospective jurors on the grounds of undue hardship “is highly discretionary in nature.” (People v. Wheeler (1978) 22 Cal.3d 258, 273.) Defense counsel did not contend the court abused its discretion in excusing any of the African-American jurors for financial hardship nor did he ask for any remedy for the excusals. Our review of the record shows that the court did not take the prospective jurors’ claims of financial hardship at face value but inquired into each juror’s particular situation. We see no arguable abuse of discretion.
(3) Denial of challenges of jurors for cause.
The defendant asked the court to excuse two jurors for cause. The court denied defendant’s requests but defendant subsequently used peremptory challenges to excuse these jurors. Defendant had peremptories remaining when he accepted the jury so he was not harmed by the court’s rulings.
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.