Opinion
2d Crim. No. B223216 Super. Ct. No. NA079016
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. SAMORI WILLS, Defendant and Appellant.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Samori Wills appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187/189), willful, deliberate, and premeditated attempted murder (§§ 187/664), and second degree robbery (§ 211). The jury found to be true allegations that he personally discharged a firearm in the murder and attempted murder (§ 12022.53, subds. (b), (c), (d)), and that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury also found to be true allegations that Wills personally used a deadly or dangerous weapon (knife) and was armed with a firearm in the commission of the robbery. Wills was sentenced to a total of 92 years to life.
All statutory references are to the Penal Code unless otherwise stated.
He contends the prosecution improperly used peremptory challenges against three prospective jurors because of their African-American race, and that the trial court erred by denying his Batson/Wheeler motion. He also contends that his sentence is cruel and unusual punishment. We affirm.
(Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.)
FACTS
During the evening of January 20, 2008, Wills shot and killed Ikime Sims and shot at Michael Wallace. The crimes were gang related. Wills was 14 years old at the time of the offenses.
Sims and Wallace were walking on the street in Long Beach, California. Wallace was a member of a criminal street gang. Sims was not. Wallace heard a man yell "Where you all from?" but the two continued walking. When Sims and Wallace heard gunshots, they ran in separate directions. They met up shortly thereafter but, ran in separate directions again when they heard more shots. Wallace saw the shooter wearing a beanie and sweatshirt. A witness also heard a gunshot and saw a person running away. He described the person as wearing a beanie and hooded jacket.
Long Beach police officers responded to a shots fired dispatch and saw the wounded Sims. Sims later died from a single gunshot wound to his buttock that caused fatal blood loss. A police officer followed the path of Sims' blood and found shell casings approximately 30 yards away.
Approximately one month later, police contacted Wills who was taken to a police station. Wills admitted to being a gang member. He told police that he had participated in a gang confrontation with Sims and Wallace and had fired shots at Sims and Wallace.
On January 11, 2008, prior to the murder, Wills robbed a Long Beach market at knifepoint. During his initial police interviews regarding the murder, Wills admitted committing the robbery. At trial, Wills denied shooting at Sims or Wallace and denied the store robbery. He claimed a fellow gang member had committed the shooting. The fellow gang member, however, was wearing a court-imposed ankle monitor indicating he had not left his house on the day of the shooting.
DISCUSSION
No Error in Denial of Batson/Wheeler Motion
Wills contends that the prosecution exercised peremptory challenges against three prospective jurors because of their African-American race, and that the trial court erred by denying his Batson/Wheeler motion. We disagree.
The use of peremptory challenges to remove prospective jurors solely on the basis of group bias arising from membership in a racial group violates both the state and federal Constitutions. (Batson v. Kentucky, supra, 476 U.S. at p. 89; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) There is a presumption that a prosecutor uses peremptory challenges in a constitutional manner, and the defendant has the burden to demonstrate improper discrimination. (Johnson v. California (2005) 545 U.S. 162, 168; People v. Bonilla (2007) 41 Cal.4th 313, 341.)
A defendant must present a prima facie case showing that the totality of the relevant facts permits an inference of a discriminatory purpose. (Johnson v. California, supra, 545 U.S. at p. 168; People v. Bonilla, supra, 41 Cal.4th at p. 341.) If the defendant does so, the prosecution has the burden to offer race-neutral reasons for the peremptory challenge. (Johnson, at p. 168.) If a race-neutral reason is provided, the trial court decides whether the defendant has proven racial discrimination. (Ibid.)
When the trial court rules after finding a prima facie case has been made, we review the ruling for substantial evidence. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009.) We defer to the court's ability to distinguish between sham excuses and bona fide nondiscriminatory reasons for a peremptory challenge as long as the court makes a "sincere and reasoned effort" to evaluate the nondiscriminatory justifications for excusing the juror. (Ibid.; People v. Salcido (2008) 44 Cal.4th 93, 136-137.)
It is relevant whether the prosecutor challenged most or all of the members of a particular racial group from the venire, used a disproportionate number of challenges against the group, or engaged the challenged group members in little or no questioning. (People v. Bonilla, supra, 41 Cal.4th at p. 342.) Recognized race-neutral reasons for exercising peremptory challenges include the juror's youth (People v. Sims (1993) 5 Cal.4th 405, 430), negative past experience with law enforcement (People v. Avila (2006) 38 Cal.4th 491, 545), and equivocal statements about the effect of his or her views on a decision in the case (People v. Adanandus (2007) 157 Cal.App.4th 496, 505).
In the present case, the prosecutor's overall questioning of prospective jurors was not disproportionately cursory or materially different with respect to prospective African-American jurors and other jurors. Also, the trial court stated at the time of the prosecutor's final challenge that "there are other black jurors in the pool," and both the trial court and the prosecutor believed that prospective juror No. 7 was Hispanic, not African-American. Although the record is not clear as to the number of African-Americans in the venire or on the jury, Wills has the burden of producing "as complete a record of the circumstances as is feasible." (People v. Wheeler, supra, 22 Cal.3d at p. 280.)
In addition, the record includes substantial evidence that race was not the only characteristic shared by the challenged prospective jurors. Prospective juror No. 7 was younger than the others and had never served on a jury. Unlike the others, prospective juror No. 9 had never been a victim of a crime and, unlike the others, prospective juror No. 1 had a close relative who had been convicted of a crime.
Wills made two Batson/Wheeler motions, one covering prospective jurors No. 7 and 9, and the other covering prospective juror No. 1. Voir dire questioning revealed that prospective juror No. 7 was single without children, worked as a customer service representative, and had never served on a jury. He had been a victim of a robbery, and a friend had been arrested for a crime. Prospective Juror No. 9 was divorced with one adult child, worked in sales and marketing, and had previously served on a jury in a theft case where a verdict was reached.
In response to the Batson/Wheeler motion by Wills as to prospective jurors No. 7 and 9, the trial court found Wills had made a prima facie showing of possible group bias, requiring the prosecutor to state his reasons for the challenges. As to prospective juror No. 7, the prosecutor stated: "all things being equal, I tend not to like young jurors," and "I tend to be suspicious of people who are acquainted with people who have been arrested for crimes." The prosecutor also stated that he had negative experiences with customer service representatives. The prosecutor admitted his challenge to prospective juror No. 9 was a "tougher call," but that the critical event occurred when he asked whether the prospective juror could convict the defendant if the case was proven beyond a reasonable doubt. The prosecutor stated that prospective juror No. 9 "hesitated, he paused and looked at [Wills] and ultimately said yes. I didn't like the pause. It caused me to believe there was an issue there relating to the defendant's age."
Defense counsel described the prosecutor's reasons as "facetious" without further argument. The trial court accepted the prosecutor's explanation and ruled that the challenges were race neutral. The trial court stated that it, too, had noticed prospective juror No. 9 pause before answering the question posed by the prosecutor. (People v. Reynoso (2003) 31 Cal.4th 903, 917 [personal observations of a prospective juror's demeanor may justify a peremptory challenge]; People v. Allen (2004) 115 Cal.App.4th 542, 547 [same].)
Prior to the Batson/Wheeler motion covering prospective juror No. 1, the prospective juror revealed that he was divorced with four adult children, worked as a plumber, and had served on a criminal case jury twice. He stated that he had been robbed by a hitchhiker four years earlier, and had a son who had been convicted of robbery ten years earlier. The trial court found that Wills had made a prima facie showing, and the prosecutor stated that his reason for the peremptory challenge was that the prospective juror's son had been "arrested" for robbery. Wills argued that there was a pattern of group bias in the prosecutor's challenges, but did not address the challenge to prospective juror No. 1 specifically or provide any basis for his claim that the challenge was discriminatory. The trial court accepted the prosecutor's explanation as race neutral and legitimate, and also stated that "there are other black jurors in the pool."
Based on this record, the trial court could reasonably find that the prosecutor showed a valid reason for each of his peremptory challenges.
Sentence is not Cruel or Unusual Punishment
Wills contends that his 92 years to life sentence constitutes cruel and unusual punishment in violation of the state and federal Constitutions. (Cal. Const., art. I, § 17; U.S. Const., 8th Amend.) We disagree.
Wills forfeited his claim by failing to object to his sentence on cruel and/or unusual punishment or any other constitutional ground. (E.g., People v. Russell (2010) 187 Cal.App.4th 981, 993.) We also reject his claim on its merits.
A sentence is cruel or unusual under California law if it is so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity. (People v. Norman (2003) 109 Cal.App.4th 221, 230; In re Lynch (1972) 8 Cal. 3d 410, 424.) Similarly, a sentence is cruel or unusual under the Eighth Amendment to the United States Constitution if it is "grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271; Ewing v. California (2003) 538 U.S. 11, 20.) The steps of the analysis under federal constitutional law are virtually identical to those applied under state law, and "the federal Constitution affords no greater protection than the state Constitution." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Based on its nature and circumstances, Wills' sentence is not disproportionate to his crimes under either state or federal law. Wills was convicted of a gang-related first degree murder and attempted murder committed by the discharge of a firearm. His sentence was not unusual or overly harsh in light of the gang-related nature of the murder and his use of a firearm in its commission.
Wills focuses on his age, not the seriousness of his crimes. He argues that the crime occurred when he was 14 years old, lived with his mother, and had no significant criminal record. In so arguing, he relies on the decision by the United States Supreme Court in Graham v. Florida (2010) 560 U.S._. In Graham, the court held that it is cruel and unusual punishment to sentence a juvenile who did not commit homicide to life without the possibility of parole. (Id. at p. 2034.)
Graham does not apply here because Wills committed a homicide and, although possibly tantamount to such a sentence, he was not sentenced to life without the possibility of parole. (People v. Mendez (2010) 188 Cal.App.4th 47, 63.) In addition, numerous cases have rejected cruel and unusual punishment claims involving very serious crimes committed by young defendants with limited prior criminal records. (E.g., People v. Em (2009) 171 Cal.App.4th 964, 972-977 [upholding sentence of 50 years to life for 15 year old who committed murder in gang robbery and whose prior record was "not extensive"]; People v. Gonzales (2001) 87 Cal.App.4th 1, 17 [upholding sentence of 50 years to life for 14-year-old gang member who committed murder with firearm enhancement and whose prior criminal record was limited to vandalism and being a runaway]; People v. Villegas (2001) 92 Cal.App.4th 1217 [upholding sentence of 40 years to life for 17-year-old gang member who committed attempted murder with firearm enhancements and had no prior convictions for any serious or violent crimes]; People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-89 [upholding sentence of 25 years to life for 17 year old convicted of felony murder with no prior record of convictions].)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Tomson T. Ong, Judge
Superior Court County of Los Angeles
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.