Opinion
A111006
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES WRIGHT, Defendant and Appellant.
Defendant Michael Wright appeals his conviction of first degree murder. He contends that the trial court erred in determining that he did not make a prima facie showing that the prosecutor engaged in racial and gender discrimination in exercising his peremptory challenges and that the instructions to the jury defining murder by means of lying in wait were defective. Finding no error, we shall affirm the judgment.
Factual and Procedural History
By a second amended information, defendant was charged with murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 187, subd. (a), 664), assault with a firearm (§ 245, subd. (a)(2)), and possession of cocaine for sale (Health & Saf. Code, § 11351). The information further alleged defendant was armed with a firearm (§ 12022, subd. (a)(1)), and had a controlled substance prior conviction (Health & Saf. Code, § 11370.2, subd. (a)). Because the issues raised on appeal concern only jury selection and the correctness of a single instruction, the facts can be briefly stated.
All statutory references are to the Penal Code unless otherwise indicated.
In November 2002 Victor Barbosa, a cocaine distributor, was shot and killed during a cocaine purchase gone awry. The event started when "middleman" Macario Toscano arranged for Barbosa to meet defendant and Toscano at the Toscano residence where Barbosa was to deliver a kilogram of cocaine. It was the prosecutions theory that defendant had arranged the transaction, not intending to purchase the drugs but to steal them. After money had been exchanged and while the cocaine was being tested for potency, defendant had a brief telephone conversation. Shortly afterwards, one of defendants accomplices, who had been hiding outside the residence in defendants van, broke into the home by kicking in the front door. He opened fire towards the area of the home where Barbosa was located. Barbosas dead body was later found face down on the floor of Toscanos kitchen, having received multiple bullet wounds. Defendant and his accomplices fled but defendant was later apprehended.
The jury was instructed on several theories of murder, including murder by means of lying in wait using CALJIC No. 8.25 and, as to the defendant, accomplice liability and aiding and abetting. The jury found defendant guilty on all counts and defendant was sentenced to 38 years to life imprisonment. Defendant filed a timely notice of appeal.
Discussion
1. Jury Selection
The 12 prospective jurors in the box when peremptory challenges began included nine women and three men. Of the 12, only Ms. C and Ms. G were African-American. The prosecutor used his first peremptory challenge on Ms. G. After the defense passed, the prosecutor exercised a second peremptory challenge on prospective juror Ms. E. The defense passed again, and the prosecutor excused Ms. C. Defendant then made a motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 479 U.S. 79 (Batson).
After the jurors were excused for the day, the court heard defendants Batson/Wheeler motion. Defense counsel noted that all three of the prosecutors challenges had been to women, and that all three were over the age of 40. Defense counsel pointed out that prospective Jurors G and C were both African-American, and were the only two African-Americans that had been in the jury box. Defendant argued that both prospective jurors were steadily employed and that they were excused because of their race.
The court noted that voir dire examination had disclosed that Ms. Cs brother had been "convicted of the very offense that were dealing with here," and that Ms. G currently had a family member facing similar charges in Alameda County. The court could not recall anything in particular about Ms. E, but observed that a number of women, "some of whom appear to be [age] 40 or more," remained on the jury. The court ruled that defendant had not made a prima facie case, but nonetheless asked the prosecutor if he wished to add anything.
The prosecutor stated that prospective juror Gs grandson was in custody apparently facing murder charges and that the prosecutor for the case worked for the same office as he did. The prosecutor also stated that Ms. G was wearing dark sunglasses, preventing him from making eye contact with her. The prosecutor said his main concern with respect to Ms. C was that her brother had been charged and convicted of murder by his office. He added that Ms. C stated she did not know if her brother had been fairly treated and thought he may have gone to prison for a murder he did not commit.
Under article I, section 16 of the California Constitution, a defendants right to trial by a representative jury is violated by the use of peremptory challenges to exclude jurors solely on the basis of group bias. (Wheeler, supra, 22 Cal.3d 258.) Batson, supra, 479 U.S. 79, affords similar protection to an accused under the federal Constitutions equal protection clause. "Under Wheeler, there is a presumption that a prosecutor uses his preemptory challenges in a constitutional manner." (Wheeler, supra, at p. 278; People v. Alvarez (1996) 14 Cal.4th 155, 193.) Therefore, a defendant who believes the prosecutor is using peremptory challenges to strike prospective jurors on the ground of group bias alone carries the burden of establishing a prima facie case of purposeful discrimination. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Alvarez, supra, at p. 193; People v. Arias (1996) 13 Cal.4th 92, 134-135.)
"In . . . [Johnson v. California (2005) 545 U.S. 162], the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendants are made. `First, the defendant must make out a prima facie case by "showing that the totality of the relevant facts give 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 justification for the strikes. [Citations.] Third, "if a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." " (People v. Cornwell (2005) 37 Cal.4th 50, 66-77.)
Defendant contends that the trial court applied an erroneous legal standard in evaluating whether he had made a prima facie showing of discrimination. At the time of trial, the latest pronouncement by the California Supreme Court as to the proper standard was People v. Johnson (2003) 30 Cal.4th 1302, 1306, in which the court held that a defendant is required to establish a strong likelihood or reasonable inference of discrimination, stating "the objector must show that it is more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible group bias." Subsequently, however, in Johnson v. California, supra, 545 U.S. 162, the United States Supreme Court reversed this decision, holding that the "more likely than not" standard was inconsistent with Batson. According to the high court, a defendant can make a prima facie showing of racial discrimination "by offering a wide variety of evidence, so long as the sum of the proffered facts gives `rise to an inference of discriminatory purpose. " (Johnson v. California, supra, at p. 169, fn. omitted, quoting Batson, supra, 476 U.S. at p. 94.) "[A] defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California, supra, at p. 170.)
The record here does not disclose whether the trial court applied the standard as articulated by the California Supreme Court or the less exacting standard required by the later decision of the United States Supreme Court. Defendant argues that we must presume the trial court applied the standard prescribed as of the time of trial by the California Supreme Court. It is not necessary to speculate as to the thinking of the trial court, however, because defendant failed to make the necessary prima facie showing under either standard. (People v. Gray (2005) 37 Cal.4th 168, 187 [regardless of standard employed by trial court, record did not support inference that prosecutor excused juror on the basis of race; People v. Cornwell, supra, 37 Cal.4th at p. 73 [same].)
The record as a whole fails to support a reasonable inference that the prosecutors peremptory challenges reflected the discriminatory purpose of eliminating African-Americans from the jury. The only basis for drawing such an inference in this regard stated in the trial court was that the prosecutor challenged one prospective juror who was African-American (Ms. C) after he had previously dismissed another African-American (Ms. G). However, the sole fact that challenges were used to excuse prospective jurors of a particular race is not necessarily sufficient to state a prima facie case. Although decided before the United States Supreme Court decision in Johnson v. California, supra, 542 U.S. 162 decisions of the California Supreme Court holding that "the removal of all members of a cognizable group, standing alone, is [not] dispositive on the question of whether defendant has established a prima facie case of discrimination" remain instructive. (People v. Young (2005) 34 Cal.4th 1149, 1173, fn. 7; see also People v. Box (2000) 23 Cal.4th 1153, 1188-1189.)
While in some contexts the use of two peremptory strikes on African-American prospective jurors might provide an inference of purposeful discrimination, we must evaluate the "totality of the relevant circumstances" surrounding the use of the two strikes. (See Johnson v. California, supra, 545 U.S. at p. 168.) Initially, the record fails to reflect the number of prospective African-Americans remaining in the panel, or whether any of the jurors ultimately selected were African-American. More importantly, as the trial court noted, the voir dire examination had brought out compelling reasons for striking the two prospective jurors that were African-Americans. Ms. G stated that her grandson had been in jail for two or three months in connection with a murder investigation but had not been charged. According to Ms. G, the police had questioned her grandson and decided to keep him in custody because "he knows who the person is." She stated that every time her grandson goes to court the case is continued because the prosecutor, a member of the Alameda County District Attorneys office, is not ready. Similarly, Ms. C revealed that her brother had been convicted of murder. She believed someone may have lied to convict him, and was unable to answer whether she thought he was treated fairly. Under these circumstances, it is difficult to believe that any competent prosecutor would have permitted these two women to remain on the jury. Their peremptory removal, standing alone, hardly supports an inference that the challenges were made for an improper purpose.
Defendant states that the "chance probability of such an event"—two of three peremptory challenges being used to remove the only two African-Americans in the jury box of 12—"is only 3.8%." Defendant argues that "[s]uch chance probabilities are clearly sufficient to `support an inference of purposeful discrimination." But while a statistical disparity may in some circumstances be sufficient to establish a prima facie case of discrimination, here it fails to do so. A defendant asserting racial discrimination in jury selection has the burden of creating as complete a record as possible. (Wheeler, supra, 22 Cal.3d at p. 280.) Defendant does not support his arguments with citations to the record, and we have found nothing in the record to indicate the racial composition of the venire or, as indicated above, whether any African-Americans were ultimately selected as jurors. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court may treat as waived any factual contentions not supported by a citation to the record].) Moreover, in the context of this record as a whole, in which there existed such obvious and persuasive reasons for challenging Ms. G and Ms. C, the significance of defendants statistics is minimal.
Defendant arrives at this figure as follows: "2/12 [the first challenge], times 11/12 [the second challenge], times 1/12 [the third challenge], times a factor of three [which must be used when only two of three challenges were against a particular group]."
Defendant also suggested to the trial court that the use of three peremptory challenges to eliminate three women over 40 years of age reflected the discriminatory purpose of eliminating women, or possibly middle-aged women, from the jury. The trial court also rejected this suggestion and defendant makes only passing reference to it in his appellate briefs. There is nothing about the charges being tried suggesting that the gender of the jurors would be of any significance. The record does reflect, however, that the jury panel consisted of a disproportionate number of women and the jury as sworn ultimately included at least seven women. We see no basis to question the trial courts determination that there was no prima facie showing that the prospective jurors were excused because of their gender.
Even if one were to conclude that defendant had made a prima facie showing of purposeful discrimination, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Although ruling that such a showing had not been made, the trial court gave the prosecutor an opportunity to explain his challenges and the prosecutor provided several nondiscriminatory reasons for the peremptory strikes. Where the burden has shifted, "[t]he prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanation need not justify a challenge for cause." (People v. Gutierrez, supra, 28 Cal.4th at p. 1122.) Here the prosecutor explained, "As to Ms. [G.] a factor in addition to the fact that her son is in custody at Santa Rita — or her grandson — excuse me — is in custody at Santa Rita, apparently facing charges of murder. She also had been to the court proceedings on his behalf, and it was her impression that each time he came to court, the case did not go forward because the D.A. was still putting the case together, of course being the same district attorneys office that I work for. [¶] . . . [¶] As additional factor as to Ms. [C] — obviously my major concern was the fact that her brother had been prosecuted for murder, had been convicted of murder in Alameda County by my office. [¶] Her belief about that case was she didnt know if he was justly treated or not and may have gone to prison for a murder that he didnt commit. [¶] Given that that was her feeling about what the system had wrought concerning her own brother, that was a major concern of mine."
By moving on without commenting on the validity of these justifications, the trial court implicitly accepted them as genuine, race-neutral reasons. Whether or not there was an adequate prima facie showing, it is clear that the prospective jurors were properly excluded.
Lying in Wait
Penal Code section 189, as relevant here, provides: "All murder which is perpetrated by mean of . . . lying in wait, . . . or by any other kind of willful, deliberate, and premeditated killing, . . . is murder of the first degree." The trial court instructed the jury on murder by means of lying in wait in accordance with CALJIC No. 8.25, as follows: "Murder which is immediately preceded by lying in wait is murder of the first degree. [¶] The term `lying in wait is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for a particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation."
Defendants attack on CALJIC No. 8.25 is twofold. First, defendant argues that the instruction inaccurately defines murder perpetrated by lying in wait by focusing solely on the temporal relationship between the lying in wait and the killing, ignoring the causal relationship. Second, defendant contends that the instruction fails to inform the jury of the element of intent.
The validity of CALJIC No. 8.25 has been upheld repeatedly. (People v. Ceja (1993) 4 Cal.4th 1134, 1139; People v. Berberena (1989) 209 Cal.App.3d 1099). In People v. Laws (1993) 12 Cal.App.4th 786, 796, the Court of Appeal rejected the argument that CALJIC No. 8.25 erroneously focuses on the temporal relationship between the lying in wait and the murder rather than emphasizing the causal relationship, stating that this argument "ignores a commonsense reading of the instruction as a whole. The instruction did not simply inform the jury that murder which is `immediately preceded by lying in wait is murder of the first degree. The jurors were told lying in wait requires a finding that the perpetrator waited and watched for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. Intelligent jurors would construe this instruction as requiring them to find that the act constituting murder had to be accomplished by means of lying in wait in order to be first degree murder under the theory that it was perpetrated by means of lying in wait."
Defendants contention that CALJIC No. 8.25 fails to require a finding that the lying in wait was done with the intent to kill or injure is similarly unavailing. "[N]othing in section 189 requires the lying in wait to have been done with the intent to kill, [nor does] the statute require[] the lying in wait to have been done with the intent to injure." (People v. Laws, supra, 12 Cal.App.4th at p. 794.) When a murder is perpetrated by lying in wait, no further evidence of defendants mental state is required. (See People v. Dickerson (1972) 23 Cal.App.3d 721, 727 ["Section 189 leaves no room for doubt. If the murder was perpetrated by means of lying in wait, it need not be independently determined to have been `willful, deliberate and premeditated. [Citations.] . . . If it was perpetrated by means of lying in wait it is, by definition, first degree murder"]; People v. Ruiz (1988) 44 Cal.3d 589, 614; People v. Hyde (1985) 166 Cal.App.3d 463, 475.) CALJIC No. 8.25 contains the substance of all the elements of murder by lying in wait. (People v. Ceja, supra, 4 Cal.4th at pp. 1139-1140.) There was no error in the courts instructions.
Disposition
The judgment is affirmed.
We concur:
PARRILLI, Acting P. J.
SIGGINS, J.