Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Lauren W. Birnstein, Judge. Affirmed in part and reversed in part. Los Angeles County Super. Ct. No. YA063055
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Travion Jalon Williams, appeals the judgment entered following his conviction, by jury trial, for false imprisonment (2 counts), attempted robbery and petty theft, with arming, firearm use, prior serious felony and prior prison term findings (Pen. Code, §§ 236/237, 664/211, 484/487, 12022, 12022.5, 667, subd. (a) – (i), 667.5). Williams was sentenced to state prison for a term of 17 years, 8 months.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed in part and reversed in part.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
On October 12, 2005, Williams and a companion accosted Tresa A. and her 14-year-old daughter in their car, took some of Tresa’s personal items and demanded $15,000, money which she had apparently been given to hire an attorney for her husband. Williams and his companion had a gun, which they passed between themselves during the incident. At one point, Williams used the gun to threaten the life of Tresa’s daughter.
Tresa told the men there was a safe at her mother’s house. Williams gave the gun back to his companion, and Tresa drove away with her daughter and Williams in the back seat. Tresa drove to the home of an acquaintance and managed to alert him to her predicament. The acquaintance called 911. As the police were arriving, Williams fled on foot. He was subsequently found hiding in the neighborhood.
CONTENTIONS
1. There was Batson/Wheeler error.
2. The trial court imposed an upper term sentence in violation of Cunningham v. California (2007) 549 U.S. 270.
3. The trial court imposed an upper term and an enhancement in violation of the rule against dual use of sentencing factors.
4. The trial court improperly doubled a misdemeanor term under the Three Strikes law.
DISCUSSION
1. There was no Batson/Wheeler error.
Williams contends the trial court erred when it denied his motion alleging the prosecutor improperly used peremptory challenges against four African-American prospective jurors. This claim is meritless.
a. Legal principles.
“A party [commits error under Batson v. Kentucky (1986) 476 U.S. 79, and People v. Wheeler (1978) 22 Cal.3d 258, by using] peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (People v. Fuentes (1991) 54 Cal.3d 707, 713.)
“The United States Supreme Court recently reiterated the applicable legal standards. ‘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.” [Citations.] 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.] 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.” ’ [Citations.] [¶] In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ [Citation.] The high court recently explained that ‘a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.” ’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 186.)
“In contrast to the limited list of events authorizing a challenge for cause on the ground of implied bias ([Former] Pen. Code, § 1074 [repealed by Stats. 1988, ch. 1245, §§ 33, 34]), the law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative. [¶] For example, a prosecutor may fear bias... because [a juror’s] clothes or hair length suggest an unconventional lifestyle.” (People v. Wheeler, supra, 22 Cal.3d at p. 275.) “Because Wheeler motions call upon trial judges’ personal observation, we view their rulings with ‘considerable deference’ on appeal. [Citations.] If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm. [Citation.]” (People v. Howard (1992) 1 Cal.4th 1132, 1155.)
Here, the trial court twice found a prima facie case of Batson/Wheeler error and elicited the prosecutor’s explanations. On appeal, Williams contends the prosecutor’s stated reasons were pretextual and that the trial court erred by accepting those reasons.
b. Background.
Williams made his first Batson/Wheeler motion after the prosecutor used peremptory challenges against African-American Prospective Jurors No. 8230, No. 5879 and No. 9421. The trial court found an inference of discriminatory purpose and asked the prosecutor to justify the three challenges.
As to Juror No. 8230, the prosecutor stated: “[F]irst of all, [she] responded affirmative to Question No. 18 that she did not trust a police officer testifying. I think that’s reason enough alone. She also stated that she has a nephew that was convicted of robbery and she was not sure if the system was fair.... And based on those two reasons alone, the People would have kicked her. She also indicated that the negative police contact was racially motivated. That she thought it was racially motivated as to her brother’s arrest. That he was beaten by the police. He was arrested and beaten by the police. So for those reasons, that’s why the People would not want Juror No. 8230.”
Regarding Juror No. 9421, the prosecutor said the prospective juror seemed unwilling to convict anyone without forensic evidence: “[T]his is the juror that gave me the most difficulty with the CSI, NCIS Hollywood model. He was pretty adamant that he’d want something to be shown to him... that he could hang his hat on to make a decision. And when I pressed him that... we may not have anything like that, would he still be able to arrive at a decision, he was not convincing that he would be able to do that without some kind of forensic evidence. He was also pulled over, interviewed within the last 10 years. I believe twice accused of robbery because he fit the description, so he’s had some very negative police contact.”
Finally, as to Juror No. 5879, the prosecutor said this prospective juror “has several friends in prison. [He] has had negative experience with police. Also said ‘yes’ to Question 18 that he did not trust police testimony.”
When defense counsel argued other jurors had answered Question No. 18 affirmatively, the prosecutor disputed this, saying his records showed none of the other jurors seated in the box had answered yes to Question 18. The trial court agreed with the prosecutor and denied William's first Batson/Wheeler motion.
When the prosecutor subsequently challenged African-American Prospective Juror No. 4477, Williams made a second Batson/Wheeler motion. The trial court found a prima facie case, again asked for the prosecutor’s justification, and again denied the motion.
c. Discussion.
Williams argues the trial court did not adequately scrutinize the prosecutor’s explanations because it failed to conduct a comparative analysis with similarly situated prospective jurors who were not excused.
The United States Supreme Court has approved the use of comparative juror analysis. “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar non black who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [162 L.Ed.2d 196].)
“We recognize that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable. In this case, however, the shared characteristic, i.e., concern about serving on the jury due to conflicting obligations, was thoroughly explored by the trial court” and “[t]he prosecution’s proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent.” (Snyder v. Louisiana (2008) 128 S.Ct. 1203, 1211, 1212, fn. omitted [170 L.Ed.2d 175].)
Our Supreme Court has pointed out these two cases “demonstrate that comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dis positive, on the issue of intentional discrimination. These cases stand for the proposition that, as to claims of error at Wheeler/Batson’s third stage, our former practice of declining to engage in comparative juror analysis for the first time on appeal unduly restricts review based on the entire record. As the high court noted in Snyder, ‘In... considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.’ [Citation.] Thus, evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons.” (People v. Lenix (2008) 44 Cal.4th 602, 622, fn. omitted.)
In the case at bar, application of comparative juror analysis demonstrates the trial court did not err when it denied the two Batson/Wheeler motions.
William's first motion was properly denied because defense counsel was wrong about the other prospective jurors’ answers to Question 18, which had asked: “Would you find it difficult to listen to the testimony of a police officer or other peace officer measured by the same standards you would use to judge the credibility of any other witness?” Three other prospective jurors who answered yes to Question 18 were all dismissed for cause before any peremptory challenges were exercised.
As to his second Batson/Wheeler motion, Williams argues “other prospective jurors [who] had legal training” or a connection to “the legal profession” were not dismissed by the prosecution. But the prosecutor did not object to Prospective Juror No. 4477 merely because he had legal training or a connection to the legal profession. Rather, as the prosecutor explained: “[T]he reason I asked to have this person excused is that he is a professor. He is a professor in criminal justice. I started to throw him off yesterday because he stated that he thought... studies... showed that jurors think independently. They think differently than what we can come up with. I have a feeling that he would tend to try to run the... jury panel. He’s a very, very bright man. Although his father was robbed at gunpoint, he seemed to have thrown off negative vibes when he was talking to the court about being a juror. I just felt that the fact that he teaches a course that deals with criminal justice in the university, that he would not be a good juror for the People. Has nothing to do with his race.”
During voir dire, Prospective Juror No. 4477 said he worked as “a manager of constitutional research” at Loyola Marymount University, a job he described as involving academic research. He said, “[T]echnically I don’t have legal training, at least professional legal training, but I’ve taught the judicial process course before.” While discussing the issue of whether he would personally require forensic evidence in order to convict, he referred to research on how juries operate: “It’s that I have a hard time from what I’ve seen over the years... teaching classes, judicial process and studying cases that all I see is not scientific. It’s very subjective and I think you can look at jury verdicts and you can almost predict by the demographics of who’s on the jury, how they’re going to vote.” Williams also complains that, like prospective juror 4477, several other jurors had either themselves been the victim of a violent crime, or had a close family member who had been a victim. But the prosecutor did not justify dismissing Juror No. 4477 on the ground his parent had been a crime victim. Rather, the prosecutor said it appeared Juror No. 4477 had successfully overcome any negative feelings about that incident. In any event, the occupation-based reason was a sufficient justification for overcoming William's Batson/Wheeler motion.
The trial court denied William's second Batson/Wheeler motion, saying: “The court does recollect... the occupation of the juror, he’s at a research academy, and he is some kind of a manager at some institute for research. He did make many statements yesterday about his studies of juries and what they do and the decisions that they make and they’re based on where people come from, not necessarily the evidence. The decisions... of juries is [sic] based on basically the background rather than sometimes the evidence. I remember him making all of those statements, and I do believe that [the prosecutor] is credible in excusing him for that purpose and saying that that is the reason that he excused him.”
It is a well-settled rule that occupation can be a permissible, non-discriminatory reason for exercising a peremptory challenge. (See People v. Trevino (1997)55 Cal.App.4th 396, 411 [proper to challenge providers of health care or social services on belief they would be defense-oriented]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [race-neutral factors included job in youth services agency and background in psychiatry or psychology]; People v. Perez (1996) 48 Cal.App.4th 1310, 1315 [proper to challenge those working in “social services or care giving fields”]; People v. Barber (1988) 200 Cal.App.3d 378, 394 [proper to challenge kindergarten teacher on belief teachers are generally liberal and less prosecution-oriented].) None of the other jurors had a comparable occupation with a comparable area of academic interest.
Juror No. 3729 was a non-practicing attorney who worked for the IRS settling tax disputes and as a part-time instructor of federal tax law at a university. Juror No. 4667 worked as a receptionist at a law firm. Juror No. 9911 worked as a legal assistant for her husband, who did insurance defense work. Juror No. 6211 had not gone to law school but “functioned essentially as an attorney for several companies.”
Williams has failed to demonstrate the trial court did not adequately scrutinize the prosecutor’s tendered race-neutral explanations. Hence, we conclude the trial court did not err by denying William's Batson/Wheeler motions.
2. There was no Cunningham error.
Williams contends the trial court violated Cunningham v. California, supra, 549 U.S. 270, by basing the upper term on count 2 on facts not found true by the jury. This claim is meritless.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403], the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of fact finding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely....” (Id. at p. 1254.)
However, Cunningham v. California, supra, 549 U.S. 270, overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Williams recognizes we are bound to follow Black II. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Meanwhile, “[t]he California Legislature quickly responded to the Cunningham decision. Senate Bill 40 (2007-2008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. [Citations.] Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Williams was sentenced on December 13, 2007, and the trial court said it had “chosen to sentence consecutively and use the high-based term on count 2, because the defendant’s prior convictions as an adult or sustained petitions in juvenile[ ] delinquency petitions, are numerous and [of] increasing seriousness, the defendant served prior prison terms and the defendant was on parole when the crime was committed. Defendant’s prior performance, both on probation and parole,... was unsatisfactory.” Hence, the trial court properly sentenced Williams in accordance with the requirements of amended section 1170, subdivision (b). The fact he committed the offense before the effective date of the amendment is of no consequence. (See People v. Sandoval (2007) 41 Cal.4th 825, 845-846; People v. Wilson, supra, 164 Cal.App.4th at pp. 990-992.)
Moreover, even if Cunningham had applied to William's sentencing there would have been no error, because several of the aggravating factors cited by the trial court made Williams eligible for an upper term: his prior convictions were numerous or of increasing seriousness (see People v. Black, supra, 41 Cal.4th at pp. 818-820); he had served a prior prison term and he was on parole when he committed the current offense (see People v. Towne (2008) 44 Cal.4th 63, 81-82); and, his prior performance on both probation and parole had been unsatisfactory (see id. at p. 82).
Hence, the trial court did not violate Cunningham when it imposed an upper term on count 2.
3. There was no dual use error.
Williams contends the trial court violated the dual use rule by employing one aggravating factor to both impose an enhancement and justify an upper term on count 2. This claim is meritless.
A trial court “may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b).) Williams argues the trial court erred because it “imposed a one-year sentence for the prior prison term pursuant to Penal Code section 667.5, as well as imposing an additional five years [for a prior serious felony conviction] pursuant to Penal Code section 667, subdivision (a), and it used appellant’s prior convictions as an aggravating factor.” This claim is meritless.
“ ‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate re sentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.” ’ [Citation.] Only a single aggravating factor is required to impose the upper term [citation]....” (People v. Osband (1996) 13 Cal.4th 622, 728.)
The trial court here cited more than one aggravating factor, including: other offenses showed William's priors were numerous or of increasing seriousness, his prior performance on both probation and parole had been unsatisfactory, and he had been on parole when he committed the current offense. The trial court also said it was imposing the upper term on the substantive charge in count 2 despite the presence of several arguable mitigating factors. The court then used these mitigating factors to justify its imposition of the midterm, rather than the upper term, on the firearm enhancement attached to count 2. In view of the trial court’s remarks, it is not reasonably probable a more favorable sentence would have been imposed in the absence of the alleged error. (See People v. Osband, supra, 13 Cal.4th at p. 729 [“the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so”].)
4. Improperly doubled term on count 4.
Williams contends the trial court improperly sentenced him to a term of one year, stayed pursuant to section 654’s proscription of multiple punishment, for his misdemeanor petty theft conviction on count 4. This claim has merit.
In his opening brief, Williams claimed this sentence was erroneous because the maximum penalty for petty theft is six months. (§ 490.) Subsequently, the trial court sent Williams a letter explaining it had arrived at the one-year term by doubling the six-month maximum term under the Three Strikes law. However, as the Attorney General properly acknowledges, the Three Strikes law only applies to currently committed felonies, not to currently committed misdemeanors. (§ 667, subd. (c).)
The correct stayed term on count 4 is six months, not one year.
DISPOSITION
The judgment is affirmed in part and reversed in part. The entire judgment is affirmed except for the one-year sentence on count 4, which is hereby vacated. The proper sentence for count 4 is a stayed term of six months. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
We concur: KITCHING, J. ALDRICH, J.