Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA05635, Burt Pines, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Eric Faron Willis was convicted, following a jury trial, of two counts of second degree robbery in violation of Penal Code section 211, one count of second degree commercial burglary in violation of section 459 and one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). The jury found true the allegations that appellant personally used a handgun in the commission of the robberies and burglary within the meaning of sections 12022.53, subdivision (b) and 12022.5, subdivision (a). The trial court sentenced appellant to a total term of 19 years and 4 months in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his request for an additional peremptory challenge and abused its discretion in refusing to admit evidence of third-party culpability, and further contending that the prosecutor committed misconduct by eliciting excluded evidence. Appellant also contends that the imposition of the upper term for three of the four counts violated his right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. 270. We affirm the judgment of conviction.
Facts
On July 29, 2006, appellant asked Lee Martel to help him rob the Shortshop check cashing and liquor store which was located about one block from appellant's apartment. Martel was an acquaintance and a neighbor. Martel's role was to lure the cashier, Wazed Hasan, from the secure check cashing booth. Martel entered the store, but changed his mind about helping and left without doing anything.
About 10:50 a.m., appellant entered the store and walked toward the check cashing booth. He was wearing a cap, jacket and shorts. A white cloth covered the lower part of his face. Hasan immediately locked the booth's door. Appellant pointed a gun at Hasan and kicked and shook the booth's door. Hasan did not open the door.
Appellant walked to the cash register area, jumped over the counter and pointed the gun at Phoebe Lozano, the cashier. He gave her a bag and told her to fill it up with cash. She complied, giving him between $400 and $500. Appellant told Lozano to open the safe, but she did not know the combination. Appellant left. Martel, who was outside, observed the whole robbery.
About noon, appellant went to the apartment of Clarence Bell, a friend and neighbor. Bell's cousin, Jerome Collins, was also there. Appellant told Bell and Collins that he had just robbed a liquor store using a gun and had "tried to get money from the guy behind the check-cashing place." Appellant said that he wore a hat, blue hooded coat and shorts during the robbery. He gave Bell and Collins the stolen money and asked them to hold it for him because the police were outside investigating the robbery.
The police had come to appellant's apartment building because the robber had been seen running toward the building. They found appellant, Bell and Collins inside Bell's apartment. Collins had $657 on his person and Bell had about $60. Police did not find any money on appellant. In a dumpster in the building's parking garage, police found a blue hooded jacket and a baseball cap. DNA obtained from the garments matched appellant's DNA.
Police held a field show-up with appellant. Lozano did not identify appellant. At the preliminary hearing, Lozano was able to identify appellant because she was close enough to see his "really long and curly eyelashes." Hasan did not participate in the lineup and did not identify appellant at any other time.
Appellant presented the testimony of a DNA expert that a second person's DNA was also found on the garments in the dumpster. That person was not identified.
Appellant also presented the testimony of Officer Janine Angeles, who interviewed Lozano at the crime scene. Officer Angeles testified that based on Lozano's hand gestures describing the robber, Officer Angeles estimated that the robber was about 5'5" tall and weighed about 140 pounds. Lozano told the officer that the robber had long curly eyelashes.
Discussion
1. Additional peremptory challenge
Appellant contends that the trial court erred in refusing his request for an additional peremptory challenge, and that this error violated his rights under the federal Constitution.
To establish a constitutional entitlement to an additional peremptory challenge, a criminal defendant must show at the very least that in the absence of such additional challenges he is reasonably likely to receive an unfair trial before a partial or biased jury. (People v. Pride (1992) 3 Cal.4th 195, 231.)
After both parties accepted a group of 12 jurors but before alternate jurors were chosen, the court inquired about the 12 jurors' vacation plans. The court then excused two jurors who had vacation plans. Appellant's counsel objected that he had been unaware of the vacation issue and had used up all of his peremptory challenges. He asked for additional peremptory challenges, which the court denied. The court later excused a third juror due to a death in her family. Appellant's counsel again requested additional peremptory challenges and his request was again denied. A new panel of prospective jurors was brought in for voir dire. Among these jurors was Juror No. 15 who was a married woman with children living in Canyon Country. She ultimately served on the jury.
At the time appellant used the last of his peremptory challenges, the prosecutor still had peremptory challenges remaining. Thus, appellant took the risk that the prosecutor might excuse jurors that appellant had accepted, and that those jurors would be replaced by jurors that appellant would not want, but could not excuse.
Appellant contends that the denial of his request for additional peremptory challenges meant that he was unable to excuse Juror No. 15, and this juror was likely partial resulting in an unfair trial. We do not agree.
Juror No. 15 attended church and was in a small group at her church which included members of the Los Angeles Police Department. At one point, appellant's trial counsel asked the following question: "And in this case there has been a stipulation by both sides that my client has in the past been convicted of a felony. One of the charges is possession of a gun by a felon. Both sides have agreed. The D.A. doesn't have to prove that my client was convicted of a felony; that was in the past. [¶] Would that keep you from -- but he's still entitled to the presumption of innocence on the new charges, these charges, that we're having the trial on. [¶] Would you have any trouble presuming him innocent on these charges?" Juror No. 15 initially replied, "I don't know."
We see no reasonable likelihood that Juror No. 15 was partial or biased, or that appellant received an unfair trial. The court had previously asked Juror No. 15 if she would apply the same standards in judging police officer credibility as she would apply to any other witness. Juror No. 15 replied that she would. Before the above question, appellant's counsel had twice asked Juror No. 15 if she had any problem presuming appellant innocent and she twice replied that she did not. After asking the above question which referenced appellant's prior conviction, appellant's counsel asked Juror No. 15 why she did not know. She responded, "I'm sorry?" The court then asked Juror No. 15 what her answer was, and she replied, "I'm confused." Appellant's counsel then rephrased the question, turning it into a compound question. Counsel then separated his question. Juror No. 15 stated that she would give appellant the presumption of innocence and would require evidence beyond a reasonable doubt. She also stated that if the prosecutor did not prove each element of the charge beyond a reasonable doubt she would vote not guilty.
We see nothing in Juror No. 15's "I don't know" response to indicate that she was partial or biased. The question asked her was confusing. We have no doubt that her statement that she was confused by the question was accurate. Juror No. 15 repeatedly replied that she would presume appellant innocent and that she would not convict him unless the prosecution proved guilt beyond a reasonable doubt. The mere fact that she knew police officers does not automatically make her partial or biased. (See People v. Ledesma (2006) 39 Cal.4th 641, 675-676 [upholding retention of reserve deputy sheriff who said he could be fair on death penalty even though he had friends in law enforcement who had been murdered]; People v. Staten (2000) 24 Cal.4th 434, 453-454 [same, as to a prospective juror whose close relatives were police officers].) Appellant points to nothing else.
2. Third party culpability
Appellant sought to introduce evidence that police found ammunition and drugs in Bell's apartment, which he claims showed that Bell was the robber. Appellant contends that the trial court's exclusion of this evidence was an abuse of discretion under California law and violated his federal constitutional right to present a defense and thus also to a fair trial.
Under California law, a defendant may offer evidence of third party culpability if that evidence is capable of raising a reasonable doubt of the defendant's guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.) Evidence which shows only that a third party had a motive or opportunity to commit the crime, without more, does not raise a reasonable doubt about the defendant's guilt. (Ibid.) There must be direct or circumstantial evidence linking the third person to the actual commission of the crime. (Ibid.; accord, People v. Gutierrez (2002) 28 Cal.4th 1083, 1136-1137; People v. Lewis (2001) 26 Cal.4th 334, 372.)
A trial court's determination of the admissibility of third party culpability evidence is reviewed under the abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Here, there is nothing to link Bell to the crime. He was not identified by the store employees. The fact that he matched a very general description of the suspect does not provide that link. Officer Angeles estimated, from the victim's hand gestures, that the robber was about 5'5" tall and weighed about 140 pounds. There are no doubt many African-American males in Los Angeles who match that description. Bell did not even match the description exactly, since Bell was 5'6" and weighed about 140 pounds. Bell had about $60 on his person, far less than the amount taken in the robbery.
We cannot agree with appellant that the presence of ammunition and drugs provides a link to the robbery. The mere presence of ammunition in Bell's apartment in the afternoon of July 29 does not create an inference that he possessed a gun earlier that day. Further, there was no evidence about the type of gun used in the robbery, and thus no evidence to show that the ammunition in Bell's apartment would fit the gun used in the robbery. We see no possible link between the robbery and the cocaine.
Since there was no evidence to link Bell to the crime, we see no abuse of discretion in the trial court's decision to exclude evidence of the drugs and ammunition. We do not find the excluded evidence capable of raising a reasonable doubt of defendant's guilt. The evidence itself had virtually no probative value. The evidence against appellant was solid. He was linked to clothing which matched the description of the clothing worn by the robber. He was identified at the preliminary hearing by the victim. Appellant's acquaintance Martel identified appellant as the robber. Collins testified that appellant admitted the robbery to him.
We likewise see no merit to appellant's federal constitutional claims. The United States Constitution permits third party culpability evidence to be excluded "'where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial.'" (Holmes v. South Carolina (2006) 547 U.S. 319, 327.) As we discuss, supra, such a connection was lacking here. We see nothing in the excluded evidence which would have caused the jury to form a significantly different impression of the prosecutor's case. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [defendant's constitutional rights violated when excluded evidence would have had such a result].) The evidence at most shows that Bell was willing to violate drug laws, and so might have weakened Bell's credibility. Bell's testimony was not crucial to the prosecutor's case, however. Collins also testified to appellant's confession. Martel and the victim identified appellant as the robber.
Respondent claims that appellant has forfeited his federal claims by failing to specify such grounds in the trial court. (See People v. Burgener (2003) 29 Cal.4th 833, 869.) Appellant contends that his claim is not waived because an objection would have been futile. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [discussing general rule].) He further contends that if his claim was waived, he received ineffective assistance of counsel. We are inclined to agree that appellant has forfeited his claim, but will assume for the sake of argument that he has not.
3. Prosecutorial misconduct
Appellant contends that the prosecutor committed misconduct by intentionally eliciting inadmissible gang evidence from a police officer, and that the trial court's admonition to the jury was not adequate to cure the harm. He further contends that the admission of the evidence denied his federal constitutional right to a fair trial. We see no prosecutorial misconduct and no violation of appellant's federal constitutional rights.
A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.) Misconduct by a prosecutor that does not render a trial fundamentally unfair is error under state law if the prosecutor uses "deceptive or reprehensible methods" to attempt to persuade the court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
It is prosecutorial misconduct to intentionally elicit inadmissible evidence. (People v. Smithey (1999) 20 Cal.4th 936, 960.) Such misconduct will render a trial fundamentally unfair if there is a reasonable likelihood that the jury was influenced by the testimony. (Ibid.)
The "gang" evidence at issue was elicited during the prosecutor's foundational questioning of Officer Walter Boyle. Officer Boyle first told the jury that he was employed by the Los Angeles Police Department and had been a police officer for six years. The prosecutor asked the officer where he was currently assigned. Officer Boyle responded, "I'm currently assigned to Mission Area, Gang Detective Unit." The prosecutor asked him how long he had had that assignment, and the officer replied, "Approximately one year."
We see nothing to suggest that the prosecutor intentionally elicited inadmissible evidence. Asking a police officer where he is assigned with the Los Angeles Police Department is a general and routine background question, most likely to elicit the name of a geographic area in response.
At a sidebar, appellant's counsel objected that the officer's assignment might lead the jury to believe that appellant was a gang member. The trial court found the comment "innocuous." Due to appellant's concern, the court instructed the jury that it was "not to draw any inference from the mere fact that [the officer] works in the particular unit described."
We agree with the trial court that the remark was innocuous. Any possible harm was cured by the court's admonition. Officer Boyle did not testify about any gang related matter. He simply testified about taking the DNA swab from appellant and read the results of fingerprint analysis. As the jury learned from other testimony, police officers from the Mission Area police station were the officers who initially responded to the 911 call. Thus, there would seem to be nothing remarkable about the involvement of Officer Boyle, who was also assigned to the Mission Area, in the investigation. Nothing about the officer's assignment infected the trial with unfairness.
Appellant relies on People v. Hudson (1981) 126 Cal.App.3d 733 to show error. That reliance is misplaced. The innocuous question and answer in this case have nothing in common with the flagrant and repeated misconduct in Hudson.
4. Upper term
Appellant contends that the trial court's imposition of the upper term for the burglary and robbery convictions violated his federal constitutional right to a jury trial as set forth in Cunningham v. California, supra, and related cases.
After the United States Supreme Court's decision in Cunningham, the California Legislature enacted amendments to Penal Code section 1170 to make California's sentencing procedures consistent with Cunningham. Under the amendments, the upper term is the statutory maximum within the meaning of Cunningham. (People v. Sandoval (2007) 41 Cal.4th 825, 843-845.) Thus, upper terms imposed under the new sentencing procedures are constitutional. (Ibid.)
Appellant acknowledges that his sentence is proper under People v. Sandoval, supra, but contends that Sandoval and the companion case of People v. Black (2007) 41 Cal.4th 799 are not consistent with federal law and are wrongly decided. As appellant acknowledges, we are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.