Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF117338, Bernard Schwartz, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Angelo Antonio Willis.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Dwight Spencer Fleming.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
Angelo Antonio Willis and Dwight Spencer Fleming, defendants and appellants (hereafter referred to collectively as defendants or individually by last name), appeal from judgments entered after a jury found Willis guilty of four counts of second degree robbery, and Fleming guilty of two counts of second degree robbery. The charges stem from two incidents in 2004, one that took place in May at an AM/PM market, and the other that took place in June at a Hollywood Video store, in which robbers wearing ski masks entered late at night (11:00 p.m. at the Hollywood Video store) or early in the morning (3:00 a.m. at the AM/PM) and took money from the cash register after ordering the employees down on the floor at gunpoint. In both crimes the robbers drove off in a dark-colored, older model Cadillac. The police recovered that vehicle on the side of a freeway where the robbers abandoned it and fled when the car ran out of gas after the Hollywood Video robberies in June.
Defendants were each charged with four counts of second degree robbery in violation of Penal Code section 211. Counts 1 and 2 pertained to the AM/PM crimes, and counts 3 and 4 pertained to the Hollywood Video crimes. Both defendants also were charged in count 5 with assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1). Defendants were tried in a single proceeding with one jury while a codefendant, Taiwan Moore, was tried in the same proceeding but by a separate jury. Chaka Lewis, who participated in the Hollywood Video store robberies, entered into to a plea agreement and testified about those crimes at defendants’ trial. At the conclusion of trial, defendants’ jury found Willis guilty as charged of four counts of robbery, and one count of assault. The jury found Fleming guilty on counts 3, 4, and 5, which are the two robberies and the assault that occurred at Hollywood Video, but could not reach verdicts on counts 1 and 2, the charges related to the crimes committed at the AM/PM, and as a result the trial court dismissed those two counts.
Because codefendant Moore is not a party to this appeal, neither he nor his trial will be mentioned again in this opinion.
In this appeal, both defendants contend that the trial court erred when it denied their joint Wheeler/Batson motion, made after the prosecutor used a peremptory challenge to excuse the only African-American member of the venire. Defendant Fleming also contends that the trial court violated his Sixth Amendment right to counsel by denying his request, made on the first day of jury selection, to substitute retained counsel for his appointed attorney. We conclude that his contentions lack merit and therefore we will affirm as to Fleming.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
In addition to joining Fleming’s Wheeler/Batson claim, Willis contends that the evidence is insufficient to support the jury’s verdicts finding him guilty of the AM/PM robberies (counts 1 & 2). He also contends that the AM/PM counts were the weaker counts and as such were improperly joined with the Hollywood Video counts as a result of which he was denied his constitutional right to a fair trial on the AM/PM charges. We agree, for reasons we explain below, with Willis’s challenge to the sufficiency of the evidence and will reverse Willis’s convictions on counts 1 and 2. That reversal renders his other claim moot.
DISCUSSION
We first address defendants’ joint claim that the trial court erred when it denied their motion under Wheeler and Batson to discharge the entire jury panel after the prosecutor used a peremptory challenge to discharge the only prospective juror who was African-American.
1.
WHEELER/BATSON MOTION
Defendants made their motion to discharge the venire after the prosecutor used a peremptory challenge to excuse Ms. Bonseigneur, the only African-American in the pool of prospective jurors. Defendants asserted that Ms. Bonseigneur had answered all the questions properly, and therefore the prosecutor must have excused her because of her race. Although the trial court was of the view that defendants had not made the required prima facie showing, it nevertheless invited the prosecutor “to make a record.” The prosecutor accepted the invitation and stated, “The reason that I dismissed Ms. [Bonseigneur is she struggled quite a bit with the concept of aiding and abetting liability under that theory. And eventually she, in my mind, reluctantly said she could follow the law on that, in that respect. But I believe that her hesitation and her struggle with it would not make her a good juror for the People.” After concurring with the prosecutor’s observations, the trial court again stated that defendants had not made a prima facie showing of discriminatory purpose, and denied the motion.
The prosecutor incorrectly referred to the juror as Ms. Monsignor, rather than by her correct last name, Bonseigneur, which the parties note is spelled various ways in the reporter’s transcript.
The trial court noted that Ms. Bonseigneur “did have some struggle with that. Even towards the end, while she did appear to go along with the concept, it appears as though she was not completely on board.”
In making the noted finding, the trial court commented that there are cases that state that excusing “even one minority juror is sufficient to establish a pattern.” The comment suggests that the trial court is of the view that Batson and Wheeler require the defendant to make a prima facie showing of “systematic discrimination” based on race or ethnicity. No such showing is required. (People v. Arias (1996) 13 Cal.4th 92, 136.) A single peremptory challenge based on race or group bias violates Wheeler and Batson. (People v. Montiel (1993) 5 Cal.4th 877, 909.)
We begin our discussion of defendants’ challenge to the trial court’s ruling with the settled principle that the use of peremptory challenges to excuse prospective jurors based solely on the presumption that they are biased because they are members of an identifiable racial or ethnic group violates the representative cross-sample guarantee in the state Constitution and the equal protection and due process clauses of the federal Constitution. (Batson, supra,476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) There are three steps to resolving a defendant’s claim that the prosecutor is exercising peremptory challenges based on group bias, and therefore in violation of the state and federal Constitutions. “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.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted; see also People v. Silva (2001) 25 Cal.4th 345, 384.)
When, as in this case, “a trial court denies a Wheeler motion because the movant failed to establish a prima facie case of group bias, the reviewing court examines the entire record of voir dire for evidence to support the trial court’s ruling. [Citation.]The ruling is affirmed if the record ‘suggests grounds upon which the prosecutor might reasonablyhave challenged the jurors in question.’ [Citation.] If the reviewing court concludes the trial court properly determined no prima facie case was made, it need not review the adequacy of the prosecutor’s justifications, if any, for the peremptory challenges. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1172-1173, fn. omitted.)
Although we are inclined to agree with the trial court that defendants failed to make a prima facie showing of discriminatory purpose, we will not address the issue because the prosecutor in this case explained why she excused the juror in question. From our review of the record, we are persuaded that the prosecutor’s explanation is legitimate and establishes a reason for excusing Ms. Bonseigneur other than the fact that she is African-American. In reaching this conclusion, we reject defendants’ assertion that the prosecutor did not excuse another prospective juror who completely misunderstood the law regarding aiding and abetting. The record reveals that the prospective juror expressed his view before the prosecutor had fully explained the law of aiding and abetting. In contrast, Ms. Bonseigneur seemed mildly confused about the concept of aiding and abetting even after the prosecutor had fully explained the pertinent legal principles. Consequently, we conclude that the record on appeal suggests grounds on which the prosecutor not only might reasonably have challenged but also actually did challenge Ms. Bonseigneur. Therefore, we must conclude that the trial court properly denied defendants’ Wheeler/Batson motion.
2.
MOTION TO CONTINUE TRIAL
Fleming’s remaining claim is that the trial court violated his rights under both the state and federal Constitutions when it denied his motion to continue trial so that his newly retained attorney could adequately prepare. Fleming’s new attorney appeared in court on the first day of trial, just before the start of jury selection, and informed the trial court that Fleming wanted to retain him, but that he would need “at least a two-week continuance, more likely than not a 30-day continuance, given the fact that [he had] a trial scheduled to start in Los Angeles in two weeks.” The trial court denied Fleming’s request for a continuance after noting that his appointed attorney, the prosecutor, and Willis’s attorney were all prepared to start selecting a jury, and that the case was nearly two years old. Fleming contends the trial court abused its discretion in denying his request for a continuance. We disagree.
The question of whether to grant a continuance to permit a defendant to retain counsel is one addressed to the trial court’s discretion. (People v. Courts (1985) 37 Cal.3d 784, 790.) “The right of a defendant to appear and defend with counsel of his own choice is not absolute . . . .” (People v. Rhines (1982) 131 Cal.App.3d 498, 506.) “A continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ [Citation.]” (People v. Courts, supra, 37 Cal.3d at pp. 790-791.)
As noted above, Fleming made his request to substitute counsel on the first day of trial. Fleming contends on appeal, as he did in the trial court, that the request was not unjustifiably dilatory when viewed in relation to an amended information that had only been filed a week earlier. In rejecting this assertion, the trial court noted that the amended information differed from the previous pleading only in that it alleged that Fleming had a prior conviction for a serious felony, an allegation that did not require much, if any, time to investigate. Fleming disagrees by pointing out, as he did in the trial court, that the prior serious felony allegation “materially altered the dynamics of the case” because it posed new facts, and more importantly, increased the severity of the penalty he faced. We do not share his view.
The only new fact raised by the amended information was that Fleming suffered a prior conviction for burglary, a fact that would require little if any additional time to investigate. Although the impact of the new allegation, if found true by the jury, would be significant, that impact is irrelevant. The pertinent inquiry for purposes of a request to continue trial is whether the newly added allegation warranted additional discovery or investigation, and therefore required a continuance of trial. Fleming did not demonstrate that he needed to continue trial in order to conduct discovery or to investigate the alleged prior conviction. Therefore, we cannot say that the trial court abused its discretion when it denied his request to continue trial so that his new attorney could adequately prepare. In short, Fleming arbitrarily sought to replace his court-appointed attorney with retained counsel on the first day of trial. Because Fleming failed to offer any cogent explanation for his request, we must conclude that the trial court did not abuse its discretion when it denied his request to continue trial in order to substitute retained counsel for his court-appointed attorney.
3.
SUFFICENCY OF THE EVIDENCE
Willis contends that the evidence is insufficient to support his conviction on counts 1 and 2, the charges that stem from the AM/PM robberies. We agree.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The evidence that connects Willis with the AM/PM robberies is his participation in the Hollywood Video robberies. The robbers in both incidents drove away from the crimes in a dark-colored, older model Cadillac. Willis apparently fled from that vehicle, and was later captured by the police, when the car ran out of gas on the freeway after the Hollywood Video robberies. The Hollywood Video robberies occurred a few days after the robberies at the AM/PM market, and the Hollywood Video store is located in the same area as the AM/PM market. Although the Cadillac connects the crimes at both locations, it does not establish the identity of the people involved in those crimes.
The trial court was of the view that the crimes at the two locations were committed in similar manners, and therefore the evidence that Willis participated in the Hollywood Video crimes supported an inference that he also committed the AM/PM crimes. The only legally significant similarity between the two crimes is that, as previously noted, Fleming’s car was used to commit both crimes. Otherwise, the crimes are similar only in that they are robberies, but the robberies were committed in generic fashion, i.e., with a gun, by people dressed in black, wearing ski masks, who ordered their victims down on the ground, and then took money from the cash register and from customers. The similarities are not only generic but also are offset by the differences in the crimes, namely that the AM/PM incident involved only two robbers, both of whom were male, whereas the Hollywood Video crimes involved three people, one of whom was a woman. Although the robbers in both incidents used a bag to carry away the money, the description of that bag varied from witness to witness, as well as from crime to crime. According to Maryanne Foster, the AM/PM robbers used a white duffle bag, or pillow case. Timothy Conger, the customer robbed at the AM/PM, said the robbers used a dark-colored bag with a yellow stripe. The victims of the Hollywood Video robberies said the female robber had a duffle bag, and it was florescent orange or yellow. After the Hollywood Video robberies, the police found a blue and yellow type duffle bag in the Cadillac.
In denying Willis’s motion to dismiss the AM/PM charges due to insufficient evidence, the trial court acknowledged that the manner in which the robberies were committed was generic but noted that in both instances the robbers ordered the victims to get down on the ground. To the extent the trial court cited this fact in order to connect the crimes at the AM/PM market with those committed at Hollywood Video, we note that ordering victims to the ground in a robbery is not unusual, as evidenced by the statement of a prospective juror in this case, who when asked if she had ever been the victim of a crime, stated that her mother is a bartender and had recently been robbed at gunpoint while at work, and in that robbery was ordered to get down on the floor while the robber took money from the cash register.
Conger also said that object could have been a jacket, not a bag. Maryanne Foster in turn testified that one of the robbers wore a sweater that was light blue on top, dark blue on the bottom and had a yellow stripe.
The only other evidence that might have connected Willis with the AM/PM robberies was the videotape from the store security camera. The jury viewed that tape, and it was introduced into evidence. Although described as “poor quality” because there was “[a] lot of dust, snow, [and it was] kind of grainy,” we nevertheless reviewed that video to determine whether it could have assisted the jurors in identifying Willis and thereby constitute evidence to support their guilty verdicts. The video not only is poor quality, but it also does not depict anyone, robber or victim, with sufficient clarity to enable identification. The faces of the two robbers are concealed by ski masks on the videotape, and the tape does not show the robbers with sufficient clarity to be able to identify either of them based on height or weight.
The evidence in this case is simply insufficient to support the jury’s verdicts finding Willis guilty of the robberies at the AM/PM market. The Attorney General contends that the jury could draw an inference of guilt from the fact that Willis testified at trial and denied his participation in everything—not only the crimes but also the police interview. More particularly, the Attorney General argues that the jury could find, given the evidence connecting Willis with the Hollywood Video robberies, that Willis lied when he denied his participation in those crimes. From the fact that he lied, the jury could reasonably infer that Willis also lied when he denied his involvement in the AM/PM crimes. In other words, the Attorney General contends that the jury could find Willis guilty of the AM/PM robberies because he denied participating in any of the robberies.
A finding of guilt based on an inference drawn from the fact that the defendant lied when he denied participation in the crime, standing alone, cannot constitute sufficient evidence to support a verdict. In the absence of any other evidence to connect Willis with the crime, the inference of guilt would constitute speculation. Sufficient evidence must be substantial and not based on suspicion, imagination, speculation, supposition, surmise, conjecture, or guesswork. (People v. Raley (1992) 2 Cal.4th 870, 891, citing People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
Because we conclude the evidence is insufficient to support Willis’s convictions on counts 1 and 2, the counts based on the AM/PM robberies, we will reverse the verdicts on those counts, with directions to the trial court to dismiss those charges. That reversal disposes of Willis’s remaining claim, which is that the AM/PM charges, which were the weaker counts, were improperly joined with the Hollywood Video charges, the stronger counts. That claim is now moot because even if we assume for the sake of discussion that Willis is correct, the error was prejudicial only in its affect on the weaker robbery counts. Those weaker counts are the AM/PM charges that we will reverse due to insufficient evidence.
DISPOSITION
The judgment is affirmed as to defendant Fleming. The judgment is modified as to defendant Willis by reversing the jury’s guilty verdicts on counts 1 and 2 with directions to the trial court to dismiss those charges based on insufficiency of the evidence. The court is further directed to prepare an amended abstract of judgment that reflects the judgment as modified with respect to defendant Willis and to forward copies of that amended abstract to the appropriate agencies and entities.
We concur: Richli J., King J.