Opinion
H035443
11-14-2011
THE PEOPLE, Plaintiff and Respondent, v. KENNETH CHARLES CHAPMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
(Santa Clara County Super. Ct. No. CC790084)
Defendant Kenneth Charles Chapman appeals from a judgment of conviction entered after a jury found him guilty of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) - counts 1 and 2) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1) - counts 3 and 4). The jury also found that defendant committed both robberies with a deadly weapon (§ 12022, subd. (b)(1)) and that defendant personally inflicted great bodily injury on the victims of both robberies and assaults (§§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that defendant had five prior strike convictions (§ 667, subd. (b)) and three prior serious felony convictions (§ 667, subd. (a)), and had served four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of 94 years to life. On appeal, defendant contends: (1) the trial court erred in denying his Wheeler/Batson motion; (2) the trial court erred in failing to instruct on the lesser included offense of attempted petty theft; (3) there was insufficient evidence to support the robbery convictions; and (4) the trial court committed various sentencing errors. We conclude that defendant's determinate term on counts one and two should be reduced by one year. As modified, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise noted.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), disapproved on another ground in Johnson v. California (2005) 545 U.S. 162, 166-168; Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
Defendant has also filed a petition for writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas corpus petition by separate order.
I. Statement of Facts
A. Prosecution Case
At about 9:00 p.m. on December 17, 2007, Senorino Organez and Mike Nguyen were working as loss prevention agents at Wal-Mart Stores, Inc. (Walmart) when they observed defendant place boxer shorts in his pants, walk to the checkout stand, buy some cigarettes, and leave the store. After defendant exited the store, Organez and Nguyen stopped him, identified themselves, and asked defendant to come back into the store. Defendant appeared "guilty . . . like, pretending that everything's okay," "You try -- you're trying to think and trying to react into, what am I going to say or what am I going to do? Shall I stay quiet?"
Organez and Nguyen escorted defendant through the customer service area and down a hallway to the loss prevention office. Defendant cooperated with them until he reached the door of the office. At that point, Nguyen either pointed to the merchandise in defendant's pants or lifted up defendant's shirt to point at it and told him that he needed the merchandise back. Defendant "got really defensive." Organez "could just feel [defendant's] muscles tightening up . . . ." As Organez was holding onto him, defendant began "swinging his arms and -- the next thing [he knew], he was giving [Organez] a slash, X motion, in front of [his] chest" with a box cutter. Organez did not recall whether he or Nguyen was slashed first by defendant. Nguyen fell back into the loss prevention office and Organez fell to the floor.
Organez got back up and moved out of the hallway toward the customer service area, and defendant followed him. Having suffered deeps cuts to his neck, chest, and arms, Organez was bleeding a lot. However, Organez was eventually able to hit defendant's head three times with a chair, and defendant dropped the box cutter. After he knocked defendant to the floor, Organez felt "real weak." An assistant manager then helped restrain defendant until the police arrived. Most of the incident was recorded by store video cameras, and a customer witnessed the latter part of the struggle between defendant and the loss prevention agents.
Officer Roland Ramirez responded to the scene at about 9:00 p.m. He saw defendant lying on the floor with three other individuals on top of him. Officer Ramirez handcuffed defendant, searched him, and found boxer shorts and possibly socks in his sweatpants.
Organez received nine staples on his neck and 24 staples on his arms and chest. Nguyen lost over 50 percent of his blood, and received 100 staples and stitches.
B. Defense Case
When Officer Sheryl Acosta arrived at the scene, defendant was already in custody. While she transported him to the police station, she observed that he exhibited symptoms of being under the influence of PCP. He was "very stiff," "[h]is muscles were tight," he had a "blank stare," in which "they look like they're just staring right through you," and he appeared drowsy.
The parties stipulated that a blood sample was taken from defendant. There was no PCP, opiates, or methamphetamine in the sample. However, the sample was positive for benzoylecgonine, which is a metabolite of cocaine.
John Brady, a forensic psychologist, testified as an expert in forensic psychology and schizophrenia. He testified that he had interviewed and administered various tests to defendant. According to Brady, defendant had a history of substance abuse and mental illness. When defendant took the tests, he was taking Zyprexa, which is used to reduce psychotic symptoms. The tests indicated that defendant had an average IQ, he suffered from some mental process disorder, he did not have brain damage, he was not malingering, and his "profile [was] not consistent with a criminal offender's, in that his antisocial personality scale was not elevated." Brady also reviewed defendant's mental health records from county jail, which indicated that he had been diagnosed with schizophrenia when he was arrested and incarcerated. Defendant's records from the Department of Corrections and Rehabilitation indicated that staff psychologists diagnosed defendant with schizophrenia in January 1991.
Brady spoke to Sheryl Chapman, defendant's wife. She stated that defendant was "a paranoid person with drugs," who engaged in bizarre behavior. Defendant would engage in shoplifting and she would rescue him by taking the items back before they left the store. Defendant's sister told Brady that defendant had suffered head trauma and had major mental issues for many years.
Based on the tests, defendant's medical history, and conversations with family members, Brady diagnosed defendant with paranoid schizophrenia of a continuous and chronic nature and a "substance-induced psychiatric disorder, psychotic symptoms." In Brady's opinion, defendant's condition had an impact on his ability to make rational decisions and to understand the consequences of his actions. According to Brady, defendant and his wife engaged in a "victim rescue phenomenon" called Karpman's Drama Triangle. He explained that they "had tied into this game where she exerts executive authority over him, more like a control mechanism or . . . a filtering mechanism to control his behavior. . . . [W]hen she wasn't there or something happened or her car broke down or whatever, his filtering process disintegrated."
On cross-examination, Brady acknowledged the facts of defendant's prior burglaries, and conceded that he had the intent to steal on those occasions. Brady also conceded that there was a "higher degree of assaultive and violent behavior" by individuals with paranoid schizophrenia.
Defendant testified that he went to Walmart on December 17, 2007, because he was told that his wife was shopping at the store. He could not find her and he "picked up a few items," which was a "mistake." When he was asked by the store employees what he had, defendant responded, "I ain't got nothing," trying "to play it off, like, you know, I didn't have anything." He was then hit in the head. Defendant tried to return to the customer service area, and when no one helped him, he retrieved his utility knife from his pocket. "[E]very time he swings, I blocked. And that's how he got his arm cut. I wasn't trying to hurt nobody or nothing. I was just trying to go along with the program, because all I was going to get was a citation." He was carrying the box cutter because he does maintenance work. He did not know that he had been hit on the head with a chair until his attorney showed him a video of the incident. When asked when he pulled the knife and why he used it, defendant responded that he did not remember "exactly . . . when it happened. It was just all in a matter of seconds." However, defendant "felt" that he was acting in self-defense. When he was asked what made him think that he had to defend himself, defendant replied, "from the time . . . they took me to the back, until they threw me on the ground, I couldn't see nobody. It was like . . . if you sleep, you know, you got to go to the restroom, you just walk, and you blind. You know how to get there, but you still asleep. It's like sleepwalking. I was dazed, discombobulated. I couldn't see. I couldn't see who -- I wouldn't be able to recognize him if I seen him on the street. I didn't know what they looked like or who I was fighting or who was hitting me. I thought they had jumped me. Which is -- was -- is what apparently happened." Defendant did not intend to rob or to injure the two victims. He had a glass of wine, some marijuana, and a little cocaine that evening.
On cross-examination, defendant acknowledged that he had four prior convictions for burglary and one prior conviction for assault with a deadly weapon on a police officer.
II. Discussion
A. Wheeler/Batson Motion
1. Background
Defendant contends that the trial court erred in refusing to grant a mistrial based on the prosecutor's improper exercise of a peremptory challenge against a prospective African-American juror. He asserts that this error deprived him of due process and a fair trial.
Voir dire revealed that Prospective Juror No. 17 was a registered nurse, who had also worked at the San Jose Police Department for 15 years as a records specialist. In her opinion, police officers could intentionally give misinformation. She based this opinion on the fact that she had "read a lot of reports," and explained that she knew "the style of the writing, based on training that's in some reports" "[t]hat if you write a sentence in a certain way, that you kind of have to read between the lines" to discover the true meaning of the report. Prospective Juror No. 17 also stated that she had a friend who was a public defender in Sacramento, and that she had worked with civil attorneys. She had never been a juror because "[n]o one ever want[ed her]." Prospective Juror No. 17 had previously testified in a divorce case. She had also taken classes in psychology, and had worked in the jail psychiatric unit, which held violent and mentally ill people. However, she did not think that her experiences in the psychiatric unit had any impact on her, noting "[i]t was a job. It came and went."
The prosecutor exercised a peremptory challenge to Prospective Juror No. 17. Defense counsel then contested the challenge under Wheeler/Batson, arguing that Prospective Juror No. 17 was the sole African-American on the current panel. He stated that "of the 160 jurors or so that were called, I believe there were only three or four African-American jurors who are remaining in the panel at all. And as to the only African-American juror who was called, . . . [she] was excused by the prosecution." The prosecutor responded: "[A]s to the venire, . . . I have nothing to add. I would submit that the venire is the venire. It's a random set of individuals that are called. [¶] I would add as to that fact that, perhaps I'm wrong, but it was my opinion that Juror Number 5, who was still seated, is African-American. [¶] . . . [¶] [Regarding Prospective Juror No. 17] . . . I noted that as the Court began speaking to the first group of 18, that juror was the only juror who had her head down, was not looking at the Court, was playing with her nails while the judge was talking. [¶] She indicated coming back from one of the breaks that she was screamed at by a lady outside at -- at 3:15. She seemed to be perturbed and upset at that. She seemed to have a bit of an attitude pertaining to that issue. [¶] When the Court asked the previous 16 jurors whether or not they had any specific feelings towards the fact the defendant was Afro-American, at least the first few I noticed that she rolled her eyes. She did not like that question, in my opinion. [¶] She indicated in her answers that she believes the police can give misinformation in their reports. When I asked her further about that, she indicated that she's read reports or observed lots of reports, and there is ways of doing that without actually putting the exact words in there. I found that to be troubling. [¶] She has a friend who is a public defender in Sacramento. She indicated that she's testified in divorce cases. She indicated that she's taken psychology classes [in] nursing school. That was worrisome to me. She indicated that she had worked at the jail in the psychiatric unit. Given that the defense in this case is partially at least a of such a nature, I found that to be troubling. [¶] She was also one of the jurors who indicated that she believed that psychologists could tell better than the average human being or not whether someone can lie or not."
Defendant is also African-American.
After defense counsel submitted on the comments that he had previously made, the trial court denied the motion, stating that it "accept[ed] the prosecution's explanation for why he issued that challenge."
2. Analysis
"Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution." (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)"The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." (Lenix, at pp. 612-613.)
In the present case, the trial court found that defendant had made a prima facie showing that the prosecutor exercised the peremptory challenge based on race, and thus the burden shifted to the prosecutor to explain that his challenge was based on a race- neutral reason. "A prosecutor asked to explain his conduct must provide a ' "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] 'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason." (Lenix, supra, 44 Cal.4th at p. 613.)
Here, defendant concedes that the prosecutor gave several race-neutral reasons for dismissing Prospective Juror No. 17. "At the third stage of the Wheeler/Batson inquiry, 'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) "Where . . . the trial court is fully apprised of the nature of the defense challenge to the prosecutor's exercise of a particular peremptory challenge, where the prosecutor's reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutor's reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge." (People v. Reynoso (2003) 31 Cal.4th 903, 929 (Reynoso).)
Defendant contends that the trial court erred in accepting the prosecutor's first stated reason for exercising a peremptory challenge, that is, that she was not paying attention when the trial court was speaking to the jurors. We disagree.
" ' "[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie ' "peculiarly within a trial judge's province," ' [citations], and we have stated that 'in the absence of exceptional circumstances, we would defer to [the trial court].' [Citation.]" ' [Citations.]" (People v. Jones (2011) 51 Cal.4th 346, 361.) In Reynoso, supra, 31 Cal.4th at p. 925, the prosecutor excused a prospective juror, in part, because he believed that she was not paying attention to the proceedings and not sufficiently involved in the selection process. Reynoso found no error, concluding that "the prosecutor's reasons given in this case for peremptorily excusing Elizabeth G. were neither inherently implausible, nor affirmatively contradicted by anything in the record." (Reynoso, at p. 926.) More recently, Lenix recognized that " 'race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention).' " (Lenix, supra, 44 Cal.4th at p. 614.) Similarly, here, defendant has failed to show error.
Defendant argues, however, that "[t]he trial court erred in failing to ask the prosecutor why he thought the generally innocuous 'body language' indicated that the juror was unfavorably disposed to the prosecution."
First, we disagree with defendant's characterization of Prospective Juror No. 17's body language as "innocuous." A juror who is not paying attention to the judicial proceedings cannot properly fulfill her function. Second, the trial court was not required to question the prosecutor in the present case. As Reynoso explained: "The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. (Ibid.)It matters not that another prosecutor would have chosen to leave the prospective juror on the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the People's case or witnesses, may be passing over any number of conscientious and fully qualified potential jurors. All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. '[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]' " (Reynoso, supra, 31 Cal.4th at p. 924.)
The prosecutor next stated that Prospective Juror No. 17 "indicated coming back from one of the breaks that she was screamed at by a lady outside at -- at 3:15. She seemed to be perturbed and upset by that. She seemed to have a bit of an attitude pertaining to that issue." The trial court had also referred to this incident. "And yesterday, the -- one of the jury employees saw people that were coming toward the courtroom, and she tried to stop them, and she was raising her voice in order to do that. I think some people misperceived her as being rude, and she wasn't. She was just following the orders of the Court, which is to try and keep people away."
Defendant argues that "[t]he prosecutor's reason had on its face no relation whatsoever to the juror's suitability or desirability as a juror, and more important, was not specific to juror #17." There is no merit to this argument. As previously stated, the relevant inquiry for the trial court was whether the stated reason denied equal protection, not whether it was objectively reasonable. (Reynoso, supra, 31 Cal.4th at p. 924.) The record also establishes that the trial court had observed the incident, and thus was in the best position to determine to what degree Prospective Juror No. 17's attitude was more negative than the attitudes of the other jurors. (Lenix, supra, 44 Cal.4th at p. 613.) Thus, this basis for the prosecutor's dismissal was neither contradicted by the record nor inherently implausible.
The prosecutor also referred to Prospective Juror No. 17's reaction to the trial court's voir dire questions, stating "[w]hen the court asked the previous 16 jurors whether or not they had any specific feelings towards the fact that the defendant was Afro-American, at least the first few I noticed that she rolled her eyes. She did not like that question, in my opinion." As defendant points out, the term "Afro-American" is no longer favored.
Justice Thurgood Marshall referred to himself as an "Afro-American" in an interview in 1990 (Randolph, Interview With Supreme Court Justice Thurgood Marshall (Nov. 1990) Ebony Magazine, at p. 216), and used the term in his dissent to an order denying an application for a stay of execution of sentence of death (McCleskey v. Bowers (1991) 501 U.S. 1281, 1282). The California Supreme Court last used the term "Afro-American" in People v. Trevino (1985) 39 Cal.3d 667, 687. More recently, courts have used the term "African-American." (In re Price (2011) 51 Cal.4th 547, 552; McDonald v. City of Chicago (2010) __ U.S. __ [130 S.Ct. 3020, 3030].)
Defendant contends that the proffered reason was not race-neutral because "[a]n African-American prospective juror's display of a mild non-verbal reaction upon hearing the trial court refer to [defendant] with antiquated racial terminology is manifestly race-related, and inherently invalid as a legitimate reason for a prosecutorial peremptory challenge."
"[A] challenge based solely on the prospective juror's race is different from a challenge 'which may find its roots in part [in] the juror's attitude about . . . society which may be race related.' [Citation.]" (People v. Hamilton (2009) 45 Cal.4th 863, 901-902.) Thus, a prosecutor may properly exercise a peremptory challenge to a prospective juror based on the juror's personal opinions relating to race when the challenge is not based on the prosecutor's own bias. (See People v. Cornwell (2005) 37 Cal.4th 50, 70 [no Wheeler/Batson violation where prosecutor dismissed a juror who did not trust the criminal justice system and its treatment of African-Americans], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Walker (1988) 47 Cal.3d 605, 625 [dismissal of juror proper who claimed police detained him based on " 'average black man syndrome' "].) Here, whether Prospective Juror No. 17 disapproved of the nature of the trial court's questions or its repeated use of the term "Afro-American," her rolling her eyes to express disapproval was a personal opinion that was a proper ground for dismissal. (Lenix, supra, 44 Cal.4th at p. 613.)
The prosecutor also cited Prospective Juror No. 17's distrust of the police as a basis for dismissing her: "She indicated in her answers that she believes the police can give misinformation in their reports. When I asked her further about that, she indicated that she's read reports or observed lots of reports, and there is ways of doing that without actually putting the exact words in there. I found that to be troubling." Prospective Juror No. 17 had worked at the San Jose Police Department for 15 years as a records specialist. In her opinion, police officers could "intentionally" give misinformation. She based this opinion on the fact that she had "read a lot of reports," and explained that she knew "the style of the writing, based on training that's in some reports" "[t]hat if you write a sentence in a certain way, that you kind of have to read between the lines" to discover the true meaning of the report.
The California Supreme Court has "repeatedly upheld peremptory challenges made on the basis of a prospective juror's negative experience with law enforcement. [Citations.]" (People v. Turner (1994) 8 Cal.4th 137, 171, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Here, since the record supported the prosecutor's stated reason, there was no error.
The prosecutor next cited Prospective Juror No. 17's friendship with a public defender. When a prospective juror is close to a public defender, "the prosecutor might reasonably believe that [the juror] would be biased in favor of defendant or against the prosecution." (People v. Morris (2003) 107 Cal.App.4th 402, 408-409.) Thus, since the record supports this stated reason, there was no error.
The prosecutor also stated that he excused Prospective Juror No. 17 because "[s]he indicated she's testified in divorce cases." Defendant challenges this reason on several grounds. He asserts that her response "does not provide any basis for inferring anti-prosecution bias on her part." However, the prosecutor may have believed that her participation in a divorce case indicated a type of personality that he did not want on the jury panel. In any event, even if the prosecutor's dismissal was arbitrary or based on a hunch, it was a race-neutral, and thus a permissible, factor to consider. (Lenix, supra, 44 Cal.4th at p. 613.)
Defendant next points out that the prosecutor misstated the juror's actual response, which referred to her testimony in a single divorce case. In our view, however, the prosecutor's reference to "cases" rather than a "case" does not establish discriminatory intent. Given that this reference occurred in the middle of a fairly long list of reasons, the prosecutor could very well have misspoken or been mistaken in his recollection of her response. Moreover, it was undisputed that she had testified in another matter.
Defendant also argues that the prosecutor's reason was pretextual because he failed to dismiss another juror who had also testified previously.
"[C]omparative juror evidence is most effectively considered in the trial court where the defendant can make an inclusive record, where the prosecutor can respond to the alleged similarities, and where the trial court can evaluate those arguments based on what it has seen and heard. . . . Defendants who wait until appeal to argue comparative juror analysis must be mindful that such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent." (Lenix, supra, 44 Cal.4th at p. 624.)
In the present case, defendant did not request a comparative juror analysis at the Wheeler/Batson hearing. He now refers to another juror, who stated: "I just had to testify. An employee of mine was arrested for something. I had to testify that he had a job when he was let out." Given that the prosecutor may have been more concerned about a juror who chose to become involved in litigation rather than one who was required to do so and defendant's failure to raise the issue below, defendant has failed to show that the trial court's finding of no discriminatory intent was erroneous.
The prosecutor also justified his challenge of Prospective Juror No. 17 on the ground that she took classes in psychology in nursing school, and had worked in the jail psychiatric unit. She also stated that she "came into contact with persons [in the unit] who were quite disturbed [with] mental illness," including "violent" people. Defendant was a paranoid schizophrenic, who presented psychiatric evidence in his defense. Based on this record, it was reasonable for the prosecutor to be concerned that Prospective Juror No. 17 might be overly sympathetic to defendant. (See People v. Watson (2008) 43 Cal.4th 652, 677 [dismissal of social worker was proper based on prosecutor's concern that she would be unable to remain objective in light of defendant's abusive childhood].) We also note that the prosecutor questioned several jurors regarding their opinions of and experiences with psychologists, and dismissed Prospective Juror No. 7, whose husband suffered from bipolar disorder.
In providing his final reason for dismissing Prospective Juror No. 17, the prosecutor explained that "[s]he was also one of the jurors who indicated that she believed that psychologists could tell better than the average human being whether or not someone can lie or not." However, the record does not support this justification for dismissing her. When the prosecutor asked the prospective jurors whether they thought that a psychologist, who testified as an expert, was better qualified to determine when someone was lying, Prospective Juror Nos. 3, 9, 11, and 12 responded with various comments. Prospective Juror No. 17 said nothing during this discussion.
The Attorney General argues that Prospective Juror No. 17's opinion on the matter may have been communicated nonverbally. However, the prosecutor did not refer to this juror's demeanor. For example, he did not say that she was nodding her head in response to his questions or to the comments by the other prospective jurors. Thus, we cannot speculate that Prospective Juror No. 17 held the view that the prosecutor attributed to her.
Though this reason was not supported by the record, "an isolated mistake or misstatement that the trial court recognizes as such is generally insufficient to demonstrate discriminatory intent . . . ." (People v. Silva (2001) 25 Cal.4th 345, 385.) "Faulty memory, clerical errors, and similar conditions that might engender a 'mistake' " do not necessarily mean that the prosecutor exercised the peremptory challenge on the basis of group bias. (People v. Williams (1997) 16 Cal.4th 153, 189.) Here, the prosecutor had several reasons for dismissing Prospective Juror No. 17, including her inattention when the trial court was speaking, her comments suggesting an anti-police bias, her experience with mentally ill inmates, and her friendship with a public defender. All of these reasons were supported by the record. The trial court was also able to assess the prosecutor's demeanor as he stated his reasons. Under these circumstances, the trial court could have recognized that the prosecutor had been mistaken, but nevertheless concluded that the dismissal of Prospective Juror No. 17 was not based on group bias.
B. Jury Instructions
Defendant next contends that he "was deprived of due process and a fair trial by the court's refusal to instruct on [his] theory of defense and on the lesser-included offense of attempted petty theft under that theory." (Caps. omitted.)
At the conclusion of trial, defense counsel requested an instruction on petty theft with a prior conviction, stating: "I -- it's my belief that the jury could find within the range of the evidence that -- that there was a petty theft which then devolved into a -- an assault with a deadly weapon; that the robbery was not a continuous act; and whatever happened was first a petty theft and then there was a violent act, that there was a separation there. And if so, they can find him guilty of petty theft, as opposed to a robbery charge. And that's why I'm asking for a CALCRIM 1850 and a lesser offense of petty theft with a prior conviction." The trial court denied the request.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) " 'In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. [Citations.] [¶] Accordingly, if one who has stolen property from the person of another uses force or fear in removing, or attempting to remove, the property from the owner's immediate presence, . . . the crime of robbery has been committed.' [Citations.]" (People v. Gomez (2008) 43 Cal.4th 249, 255 (Gomez).) Asportation continues until the perpetrator has reached a "place of temporary safety with the property." (Ibid.)Moreover, "mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.]" (Id. at p. 257.)
People v. Estes (1983) 147 Cal.App.3d 23 is instructive. In Estes, a security guard watched the defendant leave the store with some items. (Id. at p. 26.) When the security guard confronted him outside the store, the defendant swung a knife at him. (Ibid.)On appeal, the defendant argued that he was guilty of petty theft and assault rather than robbery because his use of force occurred after he took the merchandise. (Id. at p. 28.) Estes rejected this argument, explaining that "[t]he crime is not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.]" (Ibid.)
Defendant argues, however, that the present case is distinguishable from Estes. He claims that his "submission to custody concluded the theft offense when it was an attempted petty theft, and the subsequent fight had to be analyzed within the context of [his] custodial status." We disagree.
Defendant stole the items and was apprehended outside the store. As Organez and Nguyen escorted him to the loss prevention office, he continued to maintain that he had done nothing wrong. His custodial status was questionable. Prior to entering the office, he was able to draw a box cutter, begin slashing the loss prevention agents, and move towards the customer service area. During this struggle, he retained possession of the stolen property. Thus, since defendant never reached a place of temporary safety while he retained possession of the stolen property, the asportation element of robbery was ongoing when he assaulted Organez and Nguyen, thereby converting the theft into a robbery.
Defendant's reliance on People v. Wynn (2010) 184 Cal.App.4th 1210 (Wynn)is misplaced. In Wynn, a loss prevention officer confronted the defendant in the parking lot after he had left the store without paying for cigarettes. (Id. at p. 1213.) At that point, the defendant threw the cigarettes on the ground and claimed that he had not taken anything. (Ibid.)He then took a nunchaku from his pants and assaulted the loss prevention officer. (Ibid.) The defendant was convicted of, among other things, burglary and assault. (Id. at p. 1214.) On appeal, the defendant argued that the trial court erred in failing to stay sentence on the burglary conviction pursuant to section 654. (Wynn, at p. 1215.) Wynn rejected this argument, stating that the evidence supported the trial court's finding that the defendant had "a different objective in committing the burglary than in committing the assault." (Id. at p. 1216.) As the Court of Appeal explained, "during the assault Wynn no longer had the objective to obtain possession of the cigarettes, as shown by the fact that Wynn threw the carton of cigarettes on the ground before the assault and, according to eyewitness testimony, did not attempt to retrieve it." (Ibid.)In contrast to Wynn, here, defendant retained control of the stolen property when he assaulted Organez and Nguyen, and presented no evidence that he intended to abandon the stolen property as he made his way back to the customer service area.
Defendant also contends that the trial court erred in failing to instruct the jury on petty theft as a lesser included offense of robbery. He claims that he "could be convicted only of petty theft and not robbery if the prosecutor failed to prove beyond a reasonable doubt that his intent to steal was the motive behind application of force or fear, regardless of whether asportation had terminated or continued."
"Theft is a lesser included offense of robbery, which includes the additional element of force or fear." (People v. Melton (1988) 44 Cal.3d 713, 746.) The trial court has the duty to instruct on all lesser included offenses that are "supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) However, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (Id. at p. 162.)
In the present case, there was insufficient evidence that defendant committed petty theft, but not robbery. Defendant's argument that his prior intent to take the property had ceased when he was taken into custody is contradicted by his own testimony. Immediately before the altercation between defendant and the loss prevention agents, defendant lied when he stated, "I ain't got nothing," because he "was trying to play it off, like, you know, [he] didn't have anything." Thus, in continuing this deception, defendant conceded that he never lost his intent to retain possession of the stolen property and escape with it. Given defendant's own description of his mental state, and that robbery, by definition, is a continuing offense, a reasonable jury could not have found that the theft concluded when the attack occurred. Thus, the trial court did not err when it declined to instruct on the lesser included offense of petty theft.
Defendant also argues that the trial court's failure to instruct on petty theft violated his rights to due process and a fair trial because it deprived him of a theory of his defense.
In People v. Valentine (2006) 143 Cal.App.4th 1383, the defendant was charged with robbery, and the trial court denied his request for an instruction on receiving stolen property. (Id. at p. 1386.) Valentine rejected the defendant's argument that the trial court had failed to instruct on a defense theory, explaining that "the offense of receiving stolen property is not a defense to robbery; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give the instruction did not impinge on Valentine's right to present a defense to robbery. It simply reflected the fact that the prosecutor chose not to file on the other charge." (Id. at p. 1388.) Similarly, here, an instruction on petty theft with a prior conviction did not offer a defense to robbery. In any event, there was insufficient evidence to support an instruction on this offense. Accordingly, the trial court's refusal to instruct on petty theft with a prior conviction did not deprive defendant of a defense.
Defendant's reliance on People v. Turner (1990) 50 Cal.3d 668 (Turner)and People v. Marshall (1997) 15 Cal.4th 1 (Marshall)is misplaced. In Turner, there was substantial evidence to support a finding that the defendant formed the intent to steal after he killed the victim, and thus the trial court erred in failing to instruct on petty theft. (Turner, at p. 690.) In contrast to Turner, here, there was insufficient evidence to support an instruction on the lesser included offense. In Marshall, the defendant was charged with, among other things, murder and robbery. (Marshall, at p. 11.) When the defendant was detained by the police, he had in his possession a letter from a grocery store to the murder victim. (Id. at p. 12.) Marshall held that there was no evidence that the defendant used force to obtain the letter and thus there was insufficient evidence to support his robbery conviction. (Id. at p. 34.) As discussed below, there was substantial evidence to support the robbery conviction in the present case.
Defendant also argues that "evidence [that he was subjected to an illegal search by Nguyen] provides a factual question that the jury should have been instructed to determine as to whether [he] had intent to steal at that time."
Section 490.5, subdivision (f)(4) provides that a "merchant . . . or an agent thereof, having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises" may not search "any clothing worn by the person." Contrary to defendant's assertion, the evidence was not undisputed that Nguyen illegally searched him. Though Organez testified that Nguyen lifted defendant's shirt to expose the stolen property, both Nguyen and defendant testified that Nguyen pointed to where defendant had concealed this property. In any event, defendant has failed to explain how a possible violation of section 490.5 is relevant to his claim that the trial court erred by failing to instruct on petty theft with a prior conviction.
Defendant does not claim that evidence of the stolen property should have been suppressed due to a violation of section 490.5.
Defendant further claims that his testimony "that he was jumped, and that he responded only in self-defense . . . raises an additional factual question for a jury to determine to find there was a separate intent unrelated to the prior attempted petty theft at the time of the fight." However, the trial court's failure to instruct on petty theft with a prior conviction did not affect the jury's ability to consider the defense theory that he acted in self-defense.
Defendant also argues that CALCRIM No. 1600 precluded the jury from considering that he did not have the intent to steal when he attacked the loss prevention agents. He claims that the portion of this instruction requiring that "defendant's intent to take the property must have been formed before or during the time he used force or fear" "invited the jury to convict him of robbery based on the previously-formed intent to take the property that had been concluded at the time he was taken into custody." There is no merit to this claim. The instruction also required the jury to find that "when the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession." (Italics added.) The trial court also instructed the jury that the prosecution was required to prove "the union or joint operation of act and wrongful intent." Thus, the jury was instructed that though the defendant may have formed the intent to take the property before he used force or fear, the jury was also required to find that he or she had the intent to take the property "when the defendant used force or fear."
C. Sufficiency of the Evidence
Defendant contends that he "was deprived of due process by the insufficiency of the prosecutor's evidence to satisfy the burden of proof as set forth in the jury instructions stating the elements of robbery." (Caps. omitted.)
Here, the trial court instructed the jury pursuant to CALCRIM No. 1600 that in order to convict defendant of robbery, the prosecution was required to prove: "One, the defendant took property that was not his own; [¶] Two, the property was taken from another person's possession and immediate presence; [¶] Three, the property was taken against that person's will; [¶] Four, the defendant used force or fear to take the property or to prevent the person from resisting; [¶] And, five, when the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession, that the owner would be deprived of a major portion of the value or enjoyment of the property. [¶] The defendant's intent to take the property must have been formed before or during the time he used force of fear. If the defendant did not form this required intent until after using the force of fear, then he did not commit robbery. [¶] A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short. The property taken may be -- can be of any value, however slight. [¶] Two or more people may possess something at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. A store employee may be robbed if property of the store is taken, even though he or she does not own the property and was not at that moment in immediate physical control of the property. If the facts show that the employee was a representative of the owner of the property and the employee express[]ly or impliedly had authority over the property, then that employee may be robbed if the property is taken by force or fear. [¶] Fear as used here means fear of injury to the person himself or immediate injury to someone else present during the incident or to that person's property. Property is within a person's immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear."
In reviewing a challenge to the sufficiency of the evidence to support a conviction, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citation.] In conducting such a review, we " 'presume[ ] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]' [Citations.]" (People v. Lee (2011) 51 Cal.4th 620, 632.)
Defendant argues that there was no evidence that the property was taken from another's possession and immediate presence.
" '[I]mmediate presence' is 'an area over which the victim, at the time force or fear was employed, could be said to exercise some physical control' over his property. [Citation.] 'Under this definition, property may be found to be in the victim's immediate presence "even though it is located in another room of the house, or in another building on [the] premises." [Citations.]' " (Gomez, supra, 43 Cal.4th at p. 257.) "[A]ll on-duty employees have constructive possession of the employer's property during a robbery." (People v. Scott (2009) 45 Cal.4th 743, 755.)
Here, Organez and Nguyen were 10 feet away from defendant and watching him as he placed the store merchandise in his pants. As Walmart employees, they exercised constructive possession of the property when defendant used force or fear to retain the stolen property. Thus, there was substantial evidence from which a reasonable trier of fact could conclude that the property was taken from another's possession and immediate presence.
Defendant also claims that there was no evidence of the "force or fear" element. Here, defendant retained the stolen property as he slashed Organez and Nguyen several times with a box cutter while attempting to " 'carry[] away the loot' " to the customer service area. (Gomez, supra, 43 Cal.4th at p. 257.) Thus, there was substantial evidence to support the jury's finding on this element.
D. Sentencing
Defendant argues, and the People concede, that the trial court erred in calculating the minimum term of the indeterminate life sentence on counts 1 and 2 as 28 years.
Section 1170.12, subdivision (c)(2)(A) outlines how the trial court must calculate the indeterminate sentence for a defendant who has two or more strike convictions. Under this statute, the minimum term of the indeterminate sentence is the greater of (1) three times the term for each current felony conviction, (2) 25 years, or (3) the sum of the sentence for each current felony conviction and all enhancements. (§ 1170.12, subd. (c)(2)(A)(i-iii).) In calculating a determinate sentence, the trial court may not add both a five-year prior serious felony enhancement (§ 667, subd. (a)) and a one-year prior prison term enhancement (§ 667.5, subd. (b)) based on a single prior conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 (Jones).)However, the trial court may add both a prior serious felony enhancement and a prior prison term enhancement when the prior prison term was based on more than one conviction. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1304 (Sandoval).)
Here, the trial court imposed a 28 years to life sentence for each of the robbery convictions. The minimum term of 28 years was calculated pursuant to section 1170.12, subdivision (c)(2)(A)(iii): five years for the robbery conviction (§ 212.5, subd. (c)), plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), plus one year for the use of a deadly weapon enhancement (§ 12022, subd. (b)(1), plus 15 years for three five-year prior serious felony enhancements (§ 667, subd. (a)), plus four years for four prior prison term enhancements (§ 667.5, subd. (b)). Two of the prior serious felony enhancements were based on first degree burglaries in San Francisco Superior Court case Nos. 116497 and 107031. Two of the prior prison term enhancements arose from these cases. In case No. 116497, defendant was convicted of two first degree burglaries. Since the prior prison term enhancement was based on more than one conviction, the trial court properly considered this conviction as both a prior serious felony enhancement and a prior prison enhancement in calculating defendant's sentence. (Sandoval, supra, 30 Cal.App.4th at p. 1304.) However, in case No. 107031, defendant was convicted of only one count of burglary. Thus, the trial court erred in considering this conviction as both a prior serious felony enhancement and a prior prison term enhancement in calculating the minimum term of his indeterminate sentence. (Jones, supra, 5 Cal.4th at pp. 1152-1153.) The trial court's error resulted in an additional one year for each of the two robbery convictions. Accordingly, defendant's determinate term on each robbery conviction should be reduced by one year, thereby reducing defendant's indeterminate life term to 54 years to life.
Defendant next argues that the trial court erred when it imposed the upper term for the robbery convictions. The trial court followed the probation officer's recommendation and imposed the five-year upper term for each of the robbery convictions. Defendant claims that the trial court was not aware that it had discretion to impose a lesser term and that it failed to state reasons for imposing the upper term.
The "waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the [trial court] . . . failed to state any reasons . . . ." (People v. Scott (1994) 9 Cal.4th 331, 353.) Here, defense counsel did not object to either the trial court's alleged failure to exercise its discretion or to its failure to state its reasons for imposing the upper term. Accordingly, defendant's claims may not be raised in this appeal.
Even assuming defense counsel had objected, we would reject the claims. When the record is silent, this court will presume that the trial court was aware of and exercised its sentencing discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.) Relying on the following statement, defendant argues that the trial court was unaware of its sentencing discretion. "THE COURT: Well, because of the mandatory nature, I mean, even without -- without the determinate part, assuming that I were to eliminate -- somehow eliminate the determinate part, with the life part is 56 years to life. So that's minimum of 56 years. I mean, there's nothing that the Court can do within the -- within the bounds of law, as the Court understands it, that is going in some way to be able to allow something other than a life term. And something other than a minimum of 56 years to life, assuming, again, that the determinate part of it that the Court had some greater discretion." In our view, however, the trial court's reference to its lack of discretion did not refer to its decision regarding the appropriate term for the robbery convictions. Instead, when considered in context, the trial court was referring to its duty to impose a lengthy life sentence on a mentally ill defendant.
People v. Gamble (2008) 164 Cal.App.4th 891 does not assist defendant. In Gamble, the trial court believed that it was required to impose consecutive sentences. (Id. at p. 901.) This court held that consecutive sentences were not mandatory and remanded the case to allow the trial court to exercise its discretion. (Id. at pp. 901-902.) In contrast to Gamble, here, the trial court did not indicate that it was unaware of its sentencing discretion.
Regarding the claim that the trial court failed to state its reasons for imposing the upper term, any error was harmless. "Where sentencing error involves the failure to state reasons for making a particular sentencing choice, . . . reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence. [Citations.]" (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) Here, prior to the sentencing hearing, the trial court held a hearing pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In denying defendant's request to strike his prior strike convictions, the trial court stated that this case "was extremely serious in terms of the injuries that were received to these two individuals" who "are going to carry for the rest of their lives not just the physical aspects of their injuries, but also the mental aspects of their injuries," and noted that defendant "easily could have been facing in this . . . case two murders." The trial court also referred to its "responsibility to protect citizens" and that defendant was on parole when he committed the present offenses. Since the trial court declined to strike defendant's prior convictions or to sentence him concurrently, it is not reasonably probable that it would exercise its discretion to impose either the lower or the middle terms for the robbery convictions.
Defendant also contends that the trial court erred in its calculation of the total determinate terms of the enhancements. The People concede that the trial court intended to impose determinate terms of 19 years, but mistakenly stated that each of the terms should be 21. These determinate terms consisted of 15 years for the three five-year prior serious felony enhancements, three years for the great bodily injury enhancements, and one year for the use of a deadly weapon enhancement. Since the abstract of judgment reflects imposition of two determinate sentences of 19 years, remand is not necessary.
III. Disposition
The abstract of judgment is modified to reflect that the sentence on counts 1 and 2 is 27 years to life. The trial court shall prepare an amended abstract of judgment reflecting this modification and forward a certified copy to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
Mihara, J. WE CONCUR: Elia, Acting P. J. Duffy, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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