Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C156376
Sepulveda, J.
A jury convicted defendant Chris Emory of first degree murder in the shooting death of a 15-year old boy. (Pen. Code, §§ 187, subd. (a), 189.) The court sentenced defendant to an indeterminate sentence of 25 years to life for the murder, plus an additional 25 years for personal use of a firearm in committing the murder. (Pen. Code, §§ 190, subd. (a), 12022.53, subd. (d).)
Defendant appeals and contends that (1) the prosecutor deprived defendant of a fair trial by using peremptory challenges to strike prospective jurors on the basis of race; (2) the court erred in failing to address defendant’s postconviction motion to remove his appointed counsel and to provide new counsel or to allow self-representation; and (3) trial counsel was ineffective in failing to object to the admission of certain evidence and to the prosecutor’s closing argument to the jury, and in failing to renew a challenge to the prosecutor’s use of peremptory challenges to prospective jurors. We reject the contentions and affirm the judgment.
I. FACTS
An eyewitness testified that defendant fatally shot 15-year old Anthony Dailey during an altercation arising from Dailey’s theft of clothing from defendant’s best friend. The shooting occurred in the home of the eyewitness, Rachel Allen. Dailey was a friend of Allen’s sister, and also well known to Allen from the neighborhood. In June 2007, Allen’s sister invited Dailey to sleep overnight on Allen’s living room sofa. Allen had “an open-door policy” and friends from the neighborhood freely visited Allen’s apartment and sometimes slept overnight. Allen awoke on June 3, 2007, to find Dailey sleeping on her sofa. Dailey was still at Allen’s apartment when her ex-boyfriend, Marcus Williams, dropped by early that morning with defendant Emory. Williams was 22 years old and defendant 20 years old. Williams was partially disabled as the victim of an earlier shooting.
There were bad feelings between Dailey and Williams. A few weeks earlier, Dailey had stolen Williams’s car and started stripping it. It is unclear on this record, but it appears that Williams recovered the car. But Williams did not recover clothes he had left in the car. Dailey kept those clothes and wore them around the neighborhood. Williams felt that Dailey’s behavior was “a form of disrespect.”
When Dailey and Williams met at Allen’s apartment, Dailey was wearing Williams’s jacket. Williams stood at the entrance to Allen’s living room and spoke to Dailey who was sitting on the sofa. Williams said something like, “ ‘[y]ou got my clothes.’ ” Dailey stood up and said: “ ‘Quit talking to me.’ ” The young men stood within two feet of each other arguing loudly and swearing at each other. Defendant entered the apartment and approached Dailey and Williams. Williams told defendant: “ ‘it’s cool.’ ”
Defendant stood close to Dailey, raised his arm, and shot Dailey in the head. Allen testified that defendant “[n]ever said one word” before shooting Dailey. Allen estimated that the gun was less than a foot from Dailey’s head when defendant fired, which is consistent with the autopsy that revealed gun powder burns on Dailey’s skin near his ear. Allen’s sister testified that respect is important on the streets of West Oakland, and men in the neighborhood commonly settle their disagreements with guns, not fists. Allen’s sister also testified that she saw defendant with a 9-millimeter handgun days before the shooting. A bullet of that caliber was recovered from the scene of the crime.
Immediately after the shooting, defendant ran from the apartment. Williams walked from the apartment and stayed nearby as Allen waited for the police to arrive. Williams was gone by the time the police arrived. Defendant boarded a long-distance bus. The police apprehended defendant the next day, on June 4, 2007, in Salt Lake City, Utah, when the bus made a scheduled stop. Defendant was traveling with three large suitcases filled with clothes, photographs, and miscellaneous papers. Defendant made a telephone call to Oakland from the Salt Lake City jail in which defendant said he was “ ‘snatched’ ” off the bus and complained that “ ‘[s]omebody was snitching or something,’ ” and that there were “ ‘motherfuckers snitching on’ ” him.
Defendant confessed the killing to the police, but the confession was suppressed at trial because much of the police interview was conducted after defendant invoked his right against self-incrimination. (U.S. Const., 5th amend.) In his statement to the police, defendant began by denying all knowledge of the shooting and then admitted participation in the shooting in several stages. Defendant first denied knowing anything about the shooting, then said he was on the street when he heard a gunshot, then said he was at the door of Allen’s home when he heard an argument over clothes and a gunshot, and then said he was inside the apartment during the argument between Williams and Dailey when Dailey pulled a gun and defendant tackled Dailey and the gun went off accidentally. Finally, defendant admitted bringing the gun into the apartment and using it to shoot Dailey. Defendant said he pointed his gun at Dailey to stop the argument and then shot Dailey when he thought Dailey was reaching for a gun. Defendant moved to suppress the confession and the court ruled that the confession could not be introduced in the prosecution’s case in chief. The jury did not hear defendant’s confession.
At trial, a police officer testified that Williams was arrested in connection with the police investigation of the shooting but released without being charged after making a statement. Williams was subpoenaed as a witness for defendant’s preliminary hearing but did not appear and could not be located for trial.
The defense presented no witnesses at trial. In closing argument to the jury, defense counsel argued that Williams, not defendant, was the shooter, and that Allen was covering up for Williams, who was her ex-boyfriend.
The jury rejected the defense and convicted defendant of first degree murder with personal use of a firearm in the commission of the murder. (Pen. Code, §§ 187, subd. (a), 189, 12022.53, subd. (d).) The court sentenced defendant to an indeterminate sentence of 25 years to life for Dailey’s murder, plus an additional 25 years for personal use of a firearm in committing the murder. (Pen. Code, §§ 190, subd. (a), 12022.53, subd. (d).) This appeal followed.
II. discussion
Defendant contends that (1) the prosecutor deprived defendant of a fair trial by using peremptory challenges to strike prospective jurors on the basis of race; (2) the court erred in failing to address defendant’s postconviction motion to remove his appointed counsel and to provide new counsel or to allow self-representation; and (3) trial counsel was ineffective in failing to object to the admission of certain evidence and to the prosecutor’s closing argument to the jury and in failing to renew a challenge to the prosecutor’s use of peremptory challenges to prospective jurors. We turn to a discussion of each of these contentions.
A. Substantial evidence supports the trial court’s finding that the prosecutor did not discriminate against prospective jurors on the basis of race
Defendant claims the prosecutor improperly exercised peremptory challenges against African-American prospective jurors on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) The prosecutor and defense counsel each had 20 peremptory challenges. (Code Civ. Proc., § 231, subd. (a).) About midway through the jury selection process, defense counsel objected that the prosecutor was exercising her peremptory challenges on the basis of race. At that point, the prosecutor had exercised ten peremptory challenges and four of those challenges concerned African-American prospective jurors. There was one African-American prospective juror in the jury box at this stage of the proceedings, but the prosecutor had already unsuccessfully challenged that individual for cause and eventually used another peremptory challenge to excuse the individual.
The prosecutor did not exhaust all her peremptory challenges. At the end of the jury selection process, there was one African-American juror on the jury panel, and another African-American was chosen as an alternate juror. We note that defendant is African-American, as was the victim, the chief prosecution witness, and the trial judge: Alameda County Superior Court Judge Trina Thompson.
After defense counsel made his Batson/Wheeler motion, Judge Thompson found that counsel had made a preliminary, prima facie showing of discrimination and asked the prosecutor to respond. The prosecutor stated race-neutral reasons for challenging each of the four African-American prospective jurors, and the trial court accepted the genuineness of those reasons and found no purposeful discrimination. The court denied defendant’s motion. On appeal, defendant renews his Batson/Wheeler claim.
“It is well settled that ‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.” (People v. Hamilton (2009) 45 Cal.4th 863, 898 (Hamilton).)
The following procedures apply when the defense contends that the prosecutor is using peremptory challenges on the basis of racial bias. “ ‘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.” [Citation.] 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.” ’ ” (People v. Davis (2009) 46 Cal.4th 539, 582.)
“ ‘[T]he critical question in determining whether [a party] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his [or her] peremptory strike.’ [Citation.] The credibility of a prosecutor’s stated reasons ‘can be measured by, among other factors... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ ” (Hamilton, supra, 45 Cal.4th at p. 900.) All relevant circumstances may be relied upon in determining whether there has been purposeful discrimination, including disparate treatment of similarly situated panelists. (People v. Lenix (2008) 44 Cal.4th 602, 616, 622.) “If a prosecutor’s proffered reason for striking a [B]lack panelist applies just as well to an otherwise-similar non[-B]lack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller El v. Dretke (2005) 545 U.S. 231, 241.) “Comparative juror analysis is evidence that, while subject to inherent limitations, must be considered when reviewing claims of error at Wheeler/Batson’s third stage when the defendant relies on such evidence and the record is adequate to permit the comparisons.” (Lenix, supra, at p. 607.)
“The existence or nonexistence of purposeful racial discrimination is a question of fact. [Citation.] We review the decision of the trial court under the substantial evidence standard, according deference to the trial court’s ruling when the court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror. [Citations.] ‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ [Citation.] ‘We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ [Citation.] A prosecutor’s reasons for exercising a peremptory challenge ‘need not rise to the level justifying exercise of a challenge for cause.’ [Citation.] ‘ “[J]urors may be excused based on ‘hunches,’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.” ’ ” (Hamilton, supra, 45 Cal.4th at pp. 900-901, fn. omitted].)
1. Prospective Juror J.P.
J.P. was a single, 22-year-old African-American male living in San Leandro and working as a driver for an automobile repossession company. The prosecutor stated several reasons for striking J.P. from the jury panel: (1) J.P. showed a disrespectful attitude toward the trial proceedings by “saunter[ing] into the courtroom” late, “about an hour and 15 minutes into the jury selection process,” and by later responding to the judge, when asked how he was doing, by saying “[w]hat’s up?”; (2) J.P. said during voir dire that he “hates the police”; and (3) he did not have “a very extensive work history” and was almost 23 years old, “close in age to the defendant.” The prosecutor said she “should have moved to challenge him for cause” but neglected to do so.
Substantial evidence supports the prosecutor’s stated reasons for striking J.P., and the trial court reasonably concluded the reasons were race-neutral. J.P. repeatedly showed a disrespectful attitude toward the court proceedings and the judge. He was late to court and substantially delayed the court proceedings to the point where the trial court felt compelled to administer what it called a “public scolding.” J.P.’s late arrival required the court to read introductory jury instructions a second time, for his benefit alone. His only stated reason for being late was that he was “running behind.” When the court conducted voir dire, defendant was casual in his manner and inattentive to the questions. Several times, the court had to repeat questions while admonishing defendant to “listen carefully.”
J.P. also, as the prosecutor noted, said he “hate[s] the police.” On a form juror questionnaire completed by all panelists, J.P. was asked if he ever had “a good or bad experience with a police officer” and he wrote: “The police beat me like a rag doll in Modesto!” J.P. explained, in closed session, that he was arrested in Modesto for a domestic dispute with his girlfriend. J.P. said several police officers pulled him from his home and beat him without cause. J.P. was charged with disturbing the peace and resisting arrest, but the charges were dismissed. The police incident occurred less than two years before he appeared as a prospective juror. During voir dire, the prosecutor told J.P. that police officers would be testifying at trial and asked J.P. if he had “a problem with the police.” J.P. responded: “Yeah, I hate the police.” J.P. added, “personally, I am biased against police.... Police in general. [¶] I don’t like police. I don’t like them. Modesto police if you really want to get technical.” Defense counsel asked J.P. if he had any problem with the Oakland police and J.P. said, “I haven’t interacted with them.... I choose not to.”
Substantial evidence also supports the prosecutor’s statement that J.P. was young and without an extensive work history. He was “going on 23” years old and thus about the same age as defendant. His work history consisted of jobs at a fast-food restaurant, department store, upholstery cleaner, and vehicle repossession company. Although J.P. said during voir dire that he was unemployed for only a “few months,” his list of jobs accounts for less than three years over a five-year period.
“The credibility of a prosecutor’s stated reasons ‘can be measured by, among other factors... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ ” (Hamilton, supra, 45 Cal.4th at p. 900.) The prosecutor’s reasons for striking J.P. from the jury panel—disrespect of the trial proceedings, a negative experience with law enforcement, and immaturity—are reasonable grounds and well-founded in accepted trial strategy. (Id. at p. 905; People v. Lenix, supra, 44 Cal.4th at p. 628.) The California Supreme Court has “ ‘repeatedly upheld peremptory challenges made on the basis of a prospective juror’s negative experience with law enforcement.’ ” (Lenix, supra, at p. 628.) Our high court upheld such a challenge where the prospective juror reported adverse contact with a police officer over a traffic ticket. (Ibid.) J.P.’s negative experience with law enforcement was far more hostile. He wrote on the juror questionnaire: “The police beat me like a rag doll in Modesto!” and said on voir dire: “ I hate the police.”
The genuineness of the prosecutor’s stated reasons for striking J.P. was largely uncontested by defense counsel at trial. Defense counsel told the court that if J.P. “had been the only guy that was African-American that [the prosecutor] kicked, we wouldn’t even be talking about him.” The trial judge found solid nondiscriminatory reasons for striking J.P.: “I agree with [the prosecutor] wholeheartedly in terms of her observations and the characterization” of J.P.’s behavior and voir dire responses. On appeal, defendant does not deny that J.P.’s negative experience with law enforcement was far more hostile than that of any seated juror and thus offers no comparative juror analysis for J.P. But defendant does insist that the prosecutor discriminated against J.P. on the basis of race and relies upon allegedly disparate questioning of J.P. as compared to other jurors.
Defendant argues that J.P. was the only panelist “asked about work history,” and the prosecutor’s voir dire on this topic “is evidence that the prosecutor stereotyped [J.P.] as a young, unemployed, black man.” The argument is unsupported by the record. All panelists were asked to complete a form questionnaire concerning work history and were routinely questioned about their jobs. Most of that questioning was conducted by the trial judge as preliminary voir dire, before the prosecutor and defense counsel questioned the prospective jurors. The prosecutor asked some prospective jurors follow-up questions about their jobs, including prospective White jurors J.K. and C.B. If the prosecutor questioned J.P. more closely than others about his work history, the questions are readily explained by the fact that the court itself asked J.P. few questions on that topic because court and counsel quickly went into a closed session to discuss his experience with law enforcement and that experience became the understandable focus of the court’s inquiry. It should also be noted that J.P.’s negative experience with law enforcement was the emphasis of the prosecutor’s questioning and a primary reason for striking him from the jury panel. In explaining her peremptory challenge, the prosecutor relied primarily upon J.P.’s hatred of the police and disrespectful attitude, and listed his work history and age as subsidiary factors: “The fact that he hates police, his attitude toward this proceeding, his tardiness, his attitude toward [the court] were all reasons why I exercised a peremptory challenge against him, not to mention the fact that he didn’t have a very extensive work history, and he was 23—close in age to the defendant.” (Italics added.) The prosecutor’s reliance on these subsidiary factors of work history and age, and her questioning in connection with them, provide no evidence of racial discrimination.
2. Prospective Juror J.D.
J.D. was a single, 55-year-old African-American female living in Oakland or Emeryville and working for a hospice as a home health aide. The prosecutor stated a number of reasons for striking J.D., chief among them the fact that J.D.’s brother was convicted of murder. In connection with that fact, the prosecutor noted that J.D. attended every day of the trial and believed (mistakenly) that the prosecutor was the same one who prosecuted her brother. Additional, subsidiary reasons for exercising a peremptory challenge to J.D. were her residence in a “very high-crime area in West Oakland” and prison inmate visitation.
J.D.’s statement of her residence on the juror questionnaire was confusing. She first indicated Berkeley as her residence, but then noted that the Berkeley residence is her “son’s home now” and she “moved to” Apgar Street in Oakland to live with her boyfriend. The Apgar Street address she listed is not in Oakland, but in adjacent Emeryville, according to local maps.
Substantial evidence supports the prosecutor’s stated reasons, and the trial court reasonably concluded the reasons were race-neutral. In chambers, J.D. reported that her brother was convicted of murder in Alameda County about 15 years previously and died in prison. Her brother killed his girlfriend in a domestic dispute. J.D. said the killing was “a terrible thing” for her family and the victim’s family “[b]ut things do happen.” J.D. also commented on her brother’s relationship with his murdered girlfriend by saying “it’s just like an apple and a pear trying to grow together, and you can’t grow an apple and a pear together.” J.D. attended every day of her brother’s murder trial and said the trial had been conducted in the same courtroom now occupied by defendant’s trial, and tried by the same prosecutor and defense counsel. J.D. was not certain on this last point, saying she thought she recognized the attorneys but maybe she had seen them somewhere else in passing like “in the grocery store.”
The prosecutor challenged J.D. for cause, which the court denied because J.D. said she was satisfied that her brother’s trial was fair, and she showed no animosity toward the prosecution. The court, however, found sufficient basis for the prosecutor’s exercise of a peremptory challenge. As with the earlier striking of the young man J.P., the court agreed “wholeheartedly” with the prosecutor’s characterization of J.D.’s responses on voir dire. Those responses were troubling, and the prosecutor’s reliance on J.D.’s negative experience with law enforcement to strike her from the jury panel was highly credible. Although J.D. denied animosity toward the prosecutor and law enforcement, J.D.’s life experience and comments suggested that she would have difficulty sending a young man to prison for murder.
The comparative juror analysis defendant offers does not further his claim. Defendant contends that a White female juror, M.S., showed hostility toward a prosecutor’s office but was allowed to serve on the jury. M.S., who was seated as juror No. 3, reported confidentially that she was the victim of domestic violence in Idaho. M.S. felt that the district attorney’s office there should have charged her boyfriend with attempted murder, not the lesser offense of domestic violence, and that his six-year prison sentence was too short. The prosecutor asked M.S. if her feelings about how the district attorney in Idaho handled her case would “transfer over into how you feel about the District Attorney’s office in this case, or the District Attorney’s offices in general? Would it cloud your judgment in any way in this case.” M.S. answered: “Honestly, yes, it would.” The prosecutor asked in what way, and M.S. said things are not always “cut and dry.” When questioned further, M.S. said she would try to be a fair juror.
Defendant’s comparison of J.D. and M.S. is inapt. Although it is true that M.S. had a negative experience with a prosecutor’s office, that experience was as a victim who felt that the offender had been treated too leniently. In contrast, J.D. was the sister of a murderer who died in prison, and J.D. minimized her brother’s offense by commenting that he and his victim did not mix well, like apples and pears. “[A] prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution.” (People v. Farnam (2002) 28 Cal.4th 107, 138; accord People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1114 [panelist whose brother-in-law was convicted of murder reasonably challenged in murder trial].) M.S., by comparison, was likely to be sympathetic to the prosecution given her experience as a victim who believed her offender was punished too lightly. Moreover, M.S.’s expressed grievance lay with an Idaho prosecutor, whereas J.D.’s brother was prosecuted by an Alameda County prosecutor—and J.D. thought the very same prosecutor was representing the State in the current trial. Comparing J.D. to M.S., therefore, does not show the prosecutor challenged an African-American panelist who possessed the same characteristics as did a White juror she did not challenge. The two panelists possessed very different characteristics.
3. Prospective Juror L.T.
L.T. was a single, 56-year-old African-American male living in Oakland and working as a project accountant at an engineering firm. The prosecutor said she exercised a peremptory challenge against L.T. because he disparaged the way her office tried a prior criminal case where L.T. served as the jury foreperson, and L.T. was also displeased with her office’s apparent determination that he, and not his roommate, was the aggressor in a fight.
Substantial evidence supports the prosecutor’s stated reasons, and the trial court reasonably concluded the reasons were race-neutral. L.T. was the foreperson in an Alameda County attempted murder trial in 1998. On voir dire, the prosecutor asked L.T. if he had “any issue” with how the deputy district attorney in that case handled his duties. L.T. replied, “the whole jury [thought] it was almost a comedy of errors. It was deciding who was the worst attorney.” Questioning continued: “Q. Oh, really, that bad. [¶] A. It was that bad. [¶] Q. Not a proud moment for the Alameda County District Attorney’s office. [¶] A. Not at all.” A prospective juror’s negative experience on a prior jury is a reasonable basis for a peremptory strike. (People v. Avila (2006) 38 Cal.4th 491, 554.) L.T.’s experience was especially significant here, where L.T.’s prior bad experience was with the same prosecutorial agency present in this case.
L.T. also expressed displeasure with the prosecutor’s determination that L.T., and not his male roommate, was the aggressor in a fight that left L.T. with a broken nose. On voir dire, L.T. said his roommate was arrested but never charged with criminal conduct by the Alameda County District Attorney’s office. The court asked L.T. how he felt about that decision, and if he felt “the matter was handled appropriately under the circumstances.” L.T. replied “yes.” The prosecutor pursued the matter further: “Q. Did you take issue with that decision? [¶] A. At first I did. [¶] Q. You felt that the person should have been charged and prosecuted? [¶] A. Well, according to them, I pushed him. So, I pushed him off of me. And so I guess they considered me being the aggressor.” As previously noted, our high court has “ ‘repeatedly upheld peremptory challenges made on the basis of a prospective juror’s negative experience with law enforcement.’ ” (People v. Lenix, supra, at 44 Cal.4th p. 628.)
The comparative juror analysis defendant offers does not further his claim. As an example of a White panelist with negative law enforcement experience who was allowed to serve on the jury, defendant again offers M.S., the domestic violence victim who thought her boyfriend had been treated too leniently by an Idaho prosecutor. As previously discussed, the comparison is inapt. M.S. was a victim displeased with an out-of-state prosecutor. L.T. was displeased with the Alameda County prosecutor’s office, and his displeasure rested on the fact that he believed the prosecutor’s office perceived him as the aggressor instead of the victim. It is a far more negative experience to be thought the aggressor in a domestic disturbance and to receive no prosecutorial support than to be acknowledged as the victim and to have your assailant sentenced to six years in prison. Moreover, “[a]dvocates do not evaluate panelists based on a single answer,” nor should reviewing courts. (People v. Lenix, supra, 44 Cal.4th at p. 631.) Unlike M.S., L.T. had two negative prosecutorial experiences—as a juror and a party—and in both instances he openly questioned the prosecutor’s capabilities. Contrary to defendant’s assertion, these two panelists were not similarly situated.
4. Prospective Juror E.M.
E.M. was a married, 50-year-old African-American male living in Emeryville and working as a letter clerk for the post office. The prosecutor stated several reasons for striking E.M.: (1) he was a postal clerk at the 7th Street station, and the prosecutor had prior murder trials in which staff from that same postal station had shown themselves to be “uncooperative witnesses” and not “law abiding” individuals; (2) he visited a friend in jail; (3) he was familiar with the crime scene area; (4) he was uncertain about the effectiveness of the criminal justice system; (5) he was uncomfortable about making a decision impacting the life of defendant; and (6) he might show sympathy to defendant, who was a young man near in age to E.M.’s son.
All of these reasons are supported by substantial evidence. E.M. was a postal clerk at the 7th Street station, although it is impossible to confirm the prosecutor’s stated experience with other staff members at E.M.’s workplace. He visited a friend in jail, who was serving time for drug possession. When asked on the juror questionnaire if he was familiar with the Oakland streets where the crime occurred, E.M. said yes. On voir dire, he explained that he goes “that way sometimes on [his] way to work.” But when the judge asked E.M. if he ever spent any “significant amount of time” in that particular area, he said, “[n]o, not really.”
The juror questionnaire asked all jurors to state their “feelings about the effectiveness of the criminal justice system.” E.M. did not answer the question. The prosecutor asked about the blank space on the questionnaire form, and E.M. explained that at the time of completing the questionnaire, he “wasn’t sure” but “as you guys proceeded, I came to wits with, hey, it’s my duty. [¶] So, I mean I don’t have a problem with it. You know, it was just I was stunned when we first—you know, they brought up with what the case was going to be about. I thought it was petty theft or, you know, something, you know, something smaller.” Voir dire continued: “Q. So, when you heard that this was going to be a murder trial, that impacted you in your idea of what the criminal justice system was? [¶] A. Well not—not really. I mean for me, myself, you know, I was thinking that, you know, well, I’m going to have—have a say so, but then again I have eleven other people with me. So, it’s not just going to be on me. [¶] Q. Was it your concern that you would have to make a decision that— [¶] A. It’s kind of—yeah, it’s—I[’m] dealing with his life. I don’t know, I didn’t want to just—it was just a shock when I first heard it. [¶] But like I said, you know, if you balance it out, you know, the evidence, and you indicate for what it is— [¶] Q. And you said it concerns the person’s life. Did you mean the defendant’s life? [¶] A. Yes. Anyone. I mean I feel if it was—like I say, I have kids. If my son, you know, was up there, I would want people to—I wouldn’t want him to just judge him by looks or— [¶] Q. Of course. [¶] A.—by him being—I mean I want you to respect, weigh it out. You know, you get down to the nitty-gritty and find out what happened, what went on.” E.M.’s son was 18 years old, close in age to defendant.
The trial court reasonably concluded that the stated reasons for striking E.M. were race-neutral. The court noted it had no way to confirm the prosecutor’s claimed experience with “uncooperative” 7th Street postal workers but ultimately found the prosecutor’s expressed concern was genuine, and not a pretext for racial discrimination. A panelist’s occupation and work environment are commonly used by advocates to assess possible bias or predisposition, and “[a]n advocate is permitted to rely on his or her own experiences and to draw conclusions from them.” (People v. Lenix, supra, 44 Cal.4th at p. 629.) “[E]ven hunches and idiosyncratic reasons may support a peremptory challenge.” (Ibid.) “[T]he question is not whether a different advocate would have assessed the risk differently, but whether this advocate was acting in a constitutionally prohibited way.” (Ibid.) “ ‘We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses.’ ” (Hamilton, supra, 45 Cal.4th at p. 901.)
As with the prosecutor’s reliance on E.M.’s employment, the court also carefully examined the prosecutor’s statement that E.M.’s jail visits were a reason for striking him from the jury panel. The court pointed out that other panelists had visited people in jail yet went unchallenged by the prosecutor. The prosecutor acknowledged that some panelists had visited inmates as charity work, but she believed that none but the challenged panelists J.D. and E.M. had visited convicted felons who were friends or relatives. The court was satisfied with the prosecutor’s response and found no discrimination. An advocate may reasonably think that a panelist’s jail visits to friends or relatives may make the panelist unsympathetic to the prosecution. (People v. Farnam, supra, 28 Cal.4th at p. 138.)
There were additional race-neutral reasons for striking E.M. from the jury panel. E.M. failed to reveal his feelings about the effectiveness of the criminal justice system when asked to do so on the juror questionnaire. A panelist’s failure to respond to a question asking about his or her views on matters relevant to the proceedings is cause for concern. (People v. Cruz (2008) 44 Cal.4th 636, 660.) On voir dire, E.M. expressed hesitation about making a decision that would impact a young man’s life. E.M. said he was “stunned” and “shock[ed]” to think he might be a juror in a murder trial where he would have responsibility for determining the fate of another person. E.M. was reminded of his son, who was close in age to defendant, in thinking about the decisions he would make as a juror. A prospective juror’s apprehension about serving on a jury or uncertainty about his or her ability to make determinations in a criminal trial are legitimate grounds for prosecutorial concern. (People v. Watson (2008) 43 Cal.4th 652, 680-681; People v. Crittenden (1994) 9 Cal.4th 83, 118.) A prosecutor is entitled to consider a prospective juror’s ability to accept “responsibility for making weighty decisions.” (People v. Lenix, supra, 44 Cal.4th at p. 623.) A prosecutor may also consider a prospective juror’s pro-defense sympathy. (People v. Stanley (2006) 39 Cal.4th 913, 939-940.) E.M. suggested such sympathy here when the prosecutor queried E.M. about his concerns with the criminal justice system, and E.M. brought up his son and said that he would not want his son to be judged unfairly.
A comparative juror analysis does not undermine the trial court’s finding that the prosecutor’s stated reasons for challenging E.M. were genuine. Defendant argues that White panelists showed similar hesitation about sitting on a jury, yet were allowed to serve. Defendant first points to M.H., a White male panelist who was seated as juror No. 1. The prosecutor asked M.H. if he could make a decision if there were “unanswered questions” in the case and he replied: “It would depend. I would have some reservations, I think—.” M.H. said he “would have a problem making a decision” if his mind were not clear “one way or another.” M.H.’s responses are not comparable to those of E.M. As the People point out on appeal, E.M. was concerned about unanswered questions and the standard of proof, not about deciding someone’s fate. E.M.’s apprehension showed possible pro-defense sympathy, and this set him apart from M.H. As the prosecutor explained, E.M. “was uncomfortable making a decision because of the defendant’s life,” which raised a “concern that he might be empathetic towards the defendant’s position.” It is also significant that E.M. failed to answer the juror questionnaire on the subject of the effectiveness of the criminal justice system whereas M.H., when asked the same question, answered: “It works.”
Defendant’s comparison of E.M. with White panelist K.F., seated as an alternate juror, is also inapt. K.F. said she did not believe in the death penalty and did not know if she “could convict someone if the outcome could be [the] death penalty.” K.F.’s hesitation related exclusively to the death penalty, which was irrelevant in this case. On voir dire, the court informed K.F. that the death penalty was not being sought and asked “now that you are assured this case does not involve the death penalty, do you have any concerns about whether you could come to a decision and reach a consensus with other fellow jurors?” K.F. replied: “I have no concerns about that. No.” Moreover, K.F., unlike E.M., readily answered the question on the effectiveness of the criminal justice system, and said it was “very effective.”
On a separate point, defendant argues that the prosecutor’s avowed concern with E.M.’s postal employment is contradicted by the fact that S.W., a Chinese-American female juror, was allowed to serve as juror No. 5 despite her prior postal employment. The argument is meritless. The prosecutor was narrowly concerned with current staff at the Oakland 7th Street station, not postal workers generally. S.W. had once been a computer programmer for the postal service in San Mateo and had not worked for the postal service for at least eight years. Contrary to defendant’s argument on appeal, there is nothing suspicious about the fact that the prosecutor did not ask S.W. if she ever worked at the 7th Street Station. S.W.’s completed questionnaire makes it clear that she worked in San Mateo, not Oakland, and her postal career ended years ago.
Defendant’s remaining efforts at showing disparate treatment of panelists based on race are similarly unavailing. Defendant argues that two seated jurors and all three alternate jurors visited jail, and thus are no different from E.M. The argument is unsupported by the record. Two of the alternate jurors (one of whom was African-American) had visited inmates for charitable purposes, not as support for convicted friends or relatives, which was the focus of the prosecutor’s concern. The third alternate juror’s sole experience with jails was his own arrest for “DUI” 13 years previously. This lone experience did not suggest pro-defense empathy, especially when considered with other information about his life experience set forth on the questionnaire, such as his 21 years of service in the Coast Guard. As for the regularly seated jurors, one of them, M.S., had a brother who served time in Idaho for stealing a drum set from a church. M.S. never said she visited him when he was jailed. M.S. did say she was surprised at her brother’s conduct, felt he was rightfully charged with theft, and felt his punishment was commensurate with the crime he committed. The other seated juror identified by defendant, R.B., did visit a teenaged brother a couple of times when the brother had been in custody decades previously. R.B. was only 11 or 12 years old at the time of his jail visits. The prosecutor questioned R.B. closely about his brother to explore R.B.’s attitude toward law enforcement. R.B. said his brother was rightfully charged and convicted, and R.B. had no resentment toward the police. R.B. had family members who were in the legal profession and, when asked on the juror questionnaire about his feelings concerning the criminal justice system, said “I believe the criminal justice system is fair and effective.” R.B.’s responses on the juror questionnaire and during voir dire are not comparable to E.M.’s responses.
Finally, defendant argues that a number of seated jurors who were not African-American had children close in age to defendant but were allowed to serve, while the prosecutor used a peremptory challenge against E.M. for having a son near defendant’s age. But it was not simply having a child near defendant’s age that raised the prosecutor’s concern. The concern was triggered by E.M.’s introduction of the subject of his son when discussing his feelings about the criminal justice system. E.M. said if his son were “up there” on trial he would want people to weigh out the evidence and not “just judge him by looks.” In defending her peremptory challenge against E.M., the prosecutor noted the empathetic link E.M. made between his son and defendant and told the court “he may put his son in the position where the defendant is, and that’s a concern of mine.” Defendant has not identified any comparable responses by the panelists who were allowed to serve on the jury. Substantial evidence supports the trial court’s determination that the prosecutor challenged E.M. and the other African-American panelists for reasons unrelated to race.
B. Defendant was not prejudiced by the court’s failure to hold a Marsden hearing on his request for substitute counsel, and he never unequivocally asserted a right to self-representation
Defendant claims the trial court erred in failing to address his postconviction motion to remove his appointed counsel and to provide new counsel. (People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden).) “When a criminal defendant seeks substitution of counsel on the ground that appointed counsel is providing inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request. [Citations.] Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 156-157.)
We conclude that defendant’s initial communications with the court following the verdict were unclear about the redress he sought, but that defendant eventually did provide a clear indication that he wanted substitute counsel. The People concede as much. We also conclude, contrary to the People’s position, that defendant did not abandon his Marsden motion by subsequent conduct. The trial court thus erred in failing to hold a Marsden hearing, as defendant maintains. However, we agree with the People that the error was harmless and thus does not warrant reversal for a Marsden hearing.
The jury returned its verdict on June 4, 2008, and the court set sentencing for July 18, 2008. Several days before the scheduled sentencing hearing, on July 15, defendant mailed a letter to the court raising various issues. Defendant advised the court that a new trial motion would be filed based on a number of grounds including “incompetence of [trial] counsel,” with the “details” to be provided later. Defendant questioned whether his counsel was competent or willing to file a new trial motion, especially one asserting incompetent legal representation. At one point, defendant stated: “I[’]m hoping that you will appoint me with new or separate counsel to defend me on these issues. I am even willing to defend myself if necessary.” But the letter is far from clear in requesting substitute counsel. The letter is inconsistent in its requests, saying, “I hope that you will agree that providing me with new counsel and a copy of the trial transcripts, will be the most sufficient [sic] thing to do” while saying in the very next paragraph that “this letter is solely to inform you of my intentions beforehand” so arrangements can be made “if counsel refuses to cooperate.”
On July 18, 2008, defendant’s trial counsel filed a motion for new trial and sentencing was continued to August 29, 2008. The motion was based on alleged insufficiency of the evidence and prosecutorial misconduct. On August 25, 2008, defendant wrote another letter to the court. Defendant complained that the new trial motion was inadequate and asked for substitute counsel: “I ask that you please stop all proceedings, reschedule our hearing on August 29th 2008, and appoint me with new counsel. I[’]m not certain if a [M]arsden motion needs to be filed at this point but if that is what I need to do then please don’t hesitate to tell me. I[’]m even willing to represent myself on these matters.”
At the August 29, 2008 hearing, the trial court opened the proceedings with consideration of the new trial motion, which the court denied. The court then asked if there was any legal cause why sentence should not be imposed, and defense counsel said defendant wanted to address the court. The court said defendant should speak through his attorney. Defense counsel told the court: “My failure to address incompetence of counsel is one of the issues that [defendant] is interested in addressing, and that I haven’t heard, and of course I told him that’s not a matter that is properly addressed by me. That would be addressed by somebody else.” The court acknowledged receiving defendant’s letters and being aware of his concerns but said the focus now was on the probation report and the matter of sentencing. The court asked defense counsel if there were any comments or corrections concerning the probation report and, when counsel said no, proceeded to sentencing.
On appeal, defendant argues that the trial court erred in sentencing defendant without first conducting a hearing on his request for substitute counsel. The People concede that defendant requested substitute counsel in his second letter to the court but maintain that defendant abandoned the request at the sentencing hearing by failing to pursue the matter. We are not convinced there was an abandonment of defendant’s request for substitute counsel. On this record, it appears that defendant tried to present his complaints about trial counsel, and the court refused to hear them.
Defendant, who twice wrote to the court complaining about defense counsel, asked to be heard, and the court insisted that he speak through counsel. Counsel then told the court that defendant wanted to address counsel’s failure to raise attorney incompetence in the new trial motion, and the court said the proper focus of the proceeding was sentencing. The court asked if defense counsel had any comments on the probation report—it did not invite nor permit comments on other matters. The People misstate the record on this point. The People state: “When asked if he had any further comments concerning his letters to the court, appellant had no comment.” The People rely upon this characterization of the record in arguing that defendant abandoned his Marsden motion. But, in fact, the court was clear that it was asking defense counsel, not defendant, for comments, and it strictly limited comments to those “relate[d] to the probation report.”
Although we reject the People’s argument that defendant abandoned his request for substitute counsel, we agree that the court’s failure to hold a hearing on the request was not prejudicial and therefore does not warrant reversal. (Chapman v. California (1967) 386 U.S. 18, 22-24; see Marsden, supra, 2 Cal.3d at p. 126 [applying Chapman harmless error standard]; see also People v. Washington (1994) 27 Cal.App.4th 940, 944 [affirming judgment under Chapman standard].) This District Court of Appeal has held that a trial court’s failure to conduct a Marsden hearing on a motion made after trial and entry of the jury’s verdict is harmless where, as here, defendant “has made no showing... either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted.” (People v. Washington, supra, at p. 944.) There were no grounds for substituting present counsel, who had provided and continued to provide adequate representation. Even if the motion had been granted, and another attorney appointed, defendant would not have achieved a more favorable result in postconviction proceedings. A different attorney would not have obtained a new trial or more lenient sentencing. The evidence of defendant’s guilt is overwhelming: an eyewitness watched defendant shoot Dailey in the head. Any error in failing to hold a Marsden hearing was harmless beyond a reasonable doubt.
On a separate but related point, defendant argues that his letters to the trial court constituted not only a request for substitute counsel, but an alternative request for self-representation, which was wrongly ignored. “Criminal defendants who wish to act as their own attorneys have a constitutional right to do so.” (People v. Hines (1997) 15 Cal.4th 997, 1028, citing Faretta v. California (1975) 422 U.S. 806.) To invoke that right, however, a defendant must make an unequivocal assertion of the right. (Hines, supra, at p. 1028.)
Defendant did not unequivocally assert a right to self-representation. His letters to the court complained about his appointed counsel’s performance and, in the second letter, used the term “[M]arsden motion” and asked the court to appoint new counsel. Defendant never asserted a right to self-representation, and mentions serving as his own attorney only in passing to accentuate his displeasure with appointed counsel and to persuade the court that it should appoint new counsel. Thus, in his first letter to the court, defendant said: “I[’]m hoping that you will appoint me with new or separate counsel to defend me on these issues [of incompetence of counsel]. I am even willing to defend myself if necessary.” Defendant told the court he had no money. “Which is also why, if your honor doesn’t grant me with the option of new counsel, I have no choice but to represent myself. But once all of the details are brought forward, I hope that you will agree that providing me with new counsel and a copy of the trial transcripts, will be the most sufficient [sic] thing to do.” In his second letter to the court, defendant asked the court to “appoint me with new counsel” and said “I[’]m even willing to represent myself on these matters. Which is something that I am highly capable of doing. For there isn’t much else that I can ask for because it is evident that my current attorney... is not in my best interest.”
It is plain that defendant wanted substitute counsel, and his tangential statements that he was willing to represent himself “if necessary” and left with “no choice” were an argumentative device, not an unequivocal invocation of a constitutional right. Defendants displeased with appointed counsel commonly make remarks like the ones made by defendant. Such remarks do not constitute an unequivocal invocation of the right of self-representation. (E.g., People v. Valdez (2004) 32 Cal.4th 73, 98-99 [no invocation where, upon denial of Marsden motion, defendant said “ ‘if I want to go pro. per. on this case I could do that’ ”]; People v. Hines, supra, 15 Cal.4th at pp. 1027-1028 [no invocation where defendant said, during a Marsden hearing, “ ‘I would be asking that if—if I can’t get this granted, that I would like to proceed in pro per if possible’ ”]; People v. Williams (2003) 110 Cal.App.4th 1577, 1584-1585, 1593 [no invocation where defendant said, during a Marsden hearing, “Give me the opportunity to represent myself!”]; People v. Skaggs (1996) 44 Cal.App.4th 1, 5-6 [no invocation where defendant said, during a Marsden hearing, “ ‘I’d like to go pro per if I could’ ”].)
This case is unlike People v. Dent (2003) 30 Cal.4th 213, upon which defendant relies. In Dent, defense counsel told the trial court “that if the court was not inclined to allow defendant to retain either both or one of his current counsel, ‘[t]he other alternative that he proposes to the court is that he proceed in pro. per. He thinks he would be more inclined to get a fair trial that way than he would with... counsel.’ ” (Id. at pp. 218-219.) The California Supreme Court, without deciding the matter, observed that the statement was “arguably” not equivocal in requesting self-representation. (Ibid.) The statement is different from the statements made by defendant here. Defendant never expressed an alternative proposal for self-representation. His request was for substitute counsel, and his passing comments about representing himself if forced to do so were “aimed at impressing upon the court just how dissatisfied [defendant] was with his present counsel.” (People v. Skaggs, supra, 44 Cal.App.4th at p. 6.) Defendant’s comments about self-representation did not “convey an unmistakable request to forego counsel.” (People v. Marshall (1997) 15 Cal.4th. 1, 25-26.)
C. Defendant was not denied the effective assistance of counsel
Defendant, represented by new counsel on appeal, contends that his trial counsel was ineffective in failing to object to the admission of certain evidence and to the prosecutor’s closing argument to the jury, and in failing to renew a challenge to the prosecutor’s use of peremptory challenges to prospective jurors.
“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Strickland v. Washington (1984) 466 U.S. 668, 689.)
1. Admission of evidence
Defendant faults trial counsel for not objecting to the admission of a police officer’s testimony concerning the arrest of Williams, defendant’s companion at the time of the shooting. Oakland police officer Sergeant Cruz testified that Williams was arrested during the police investigation of the shooting, but released without being charged after making a statement. Defendant maintains that Sergeant Cruz’s testimony was irrelevant and introduced for the improper purpose of offering the officer’s opinion that Williams was innocent. (People v. Melton (1988) 44 Cal.3d 713, 742-744 (Melton).) Trial counsel’s failure to object to this testimony, defendant contends, was incompetent and prejudicial.
The California Supreme Court has declined to discuss whether Melton, supra, 44 Cal.3d 713 survived Proposition 8 (Cal. Const., art. I, § 28, subd. (f)(2)), and therefore we must consider it here. (People v. Padilla (1995) 11 Cal.4th 891, 946-947, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
But Sergeant Cruz did not offer an opinion as to a witness’s truthfulness, as in Melton where an investigator testified that a witness’s information “ ‘was not of a sufficient quality’ ” to investigate. (Melton, supra, 44 Cal.3d at pp. 742-743.) Here, Sergeant Cruz testified only that he interviewed Williams and released him after the interview. The jury was never presented with an account of the interview or the officer’s opinion that Williams was either truthful or innocent. It is also incorrect to argue, as does defendant, that the testimony could have no relevance except as indirect evidence that Williams proclaimed his innocence during the interview and that police believed him. The testimony was directly relevant to establishing that the police conducted a thorough investigation. Without Sergeant Cruz’s testimony, the defense would likely have criticized the prosecution for failing to investigate Williams, either as an accomplice or a witness, given Williams’s presence at the shooting and hostile history with the victim.
Even if the testimony was objectionable, the failure to object was not prejudicial. Sergeant Cruz’s testimony cut two ways—it may have suggested that the police did not find cause to charge Williams with the shooting but it also showed that the police did suspect Williams. In his closing argument to the jury, defense counsel relied upon Sergeant Cruz’s testimony to show that the police “continued to have an interest in Markus Williams even after the arrest of [defendant] Chris Emory,” and pointed out that Williams was still being investigated for the killing over a month after defendant was arrested. Arguably, the testimony about Williams’s arrest did as much to incriminate Williams as to exonerate him. But regardless of the import of this isolated piece of testimony, the fact remains that the evidence of defendant’s guilt is overwhelming: An eyewitness saw defendant shoot Dailey in the head, and defendant immediately fled the state and was arrested in Utah, where he was recorded in jail complaining about “ ‘motherfuckers snitching on’ ” him. The defense theory that Williams was the shooter was based on nothing more than the fact that Williams was in the apartment with defendant and the one who had been wronged by the victim. It is not reasonably probable that the verdict would have been different had defense counsel objected to admission of Sergeant Cruz’s testimony about arresting and releasing Williams.
Likewise, there was no prejudice from the introduction of an arrest warrant affidavit, which is another item of evidence challenged on appeal. A Salt Lake City police officer testified that he arrested defendant on an arrest warrant he received from Oakland. The warrant was referenced during the officer’s testimony and later admitted in evidence without objection. Defendant argues that trial counsel should have objected because the affidavit accompanying the warrant contained inadmissible hearsay, specifically a statement from the victim’s sister that “ ‘the word on the street’ ” was that defendant and Williams shot Dailey.
“ ‘Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.... A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ ” (People v. Reil (2000) 22 Cal.4th 1153, 1185.) Defendant argues that the failure to object here does not show a tactical decision but pure incompetence because there can be no reason to allow evidence incriminating defendant. But the evidence also incriminated Williams, and defense counsel referred to defendant’s arrest in Utah when eliciting from Sergeant Cruz the admission that the police had “some initial information right when the case broke” that defendant and Williams “had something to do with this case.” Counsel may well have calculated that admission of the warrant affidavit helped the defense by casting suspicion on Williams. In any event, for reasons stated above, introduction of the affidavit was not prejudicial. Defendant was convicted upon overwhelming evidence: eyewitness testimony and defendant’s own incriminating conduct and statements following the shooting.
2. Prosecutor’s closing argument
We also reject defendant’s claim that trial counsel was incompetent in failing to object to the prosecutor’s closing argument to the jury, and find any failure to object harmless. Defendant contends that the prosecutor committed misconduct in displaying a photograph of the victim during closing argument, and stating: “this picture is displayed as a reminder to you that this boy was once alive; that he was once a living, breathing human being like yourselves; because as you sit through a murder trial as a juror, it might not always be conscious to you that this boy was once alive, because he didn’t testify in this trial. He didn’t. [¶] You didn’t get to meet him like the witnesses that did testify, nor did Dailey sit through this trial like the defendant. [¶] In fact, you were introduced to the defendant at the beginning of this trial, and he may have even smiled at you or greeted you when you walked in this courtroom. [¶] You got to witness firsthand that the defendant is a living, breathing human being, but not Dailey. So, this picture is a reminder of that; that this boy was once alive like you. [¶] And this picture is a reminder of why you are here as jurors, to seek justice for this young man’s murder. To seek justice. But for the despicable acts of the defendant, this young boy would be alive today.”
The argument was not objectionable. A prosecutor is entitled to express the view that the victim is often forgotten in a murder trial because the focus is on the defendant, and to urge the jury not to forget the victim. (People v. Hines, supra, 15 Cal.4th at p. 1063.) The display of Dailey’s photograph was made in connection with this plea to remember the victim, and not as an unfair appeal to sympathy. If the prosecutor did overstep the bounds of proper argumentation, defense counsel’s failure to object was not prejudicial. This was not a close case in which sympathy for the victim might have led the jury to convict improperly.
We also find no misconduct in the prosecutor’s argument that defendant’s guilt was established by an abundance of evidence. The prosecutor noted that there was both direct evidence of defendant’s guilt, provided by Allen’s eyewitness account, and circumstantial evidence of guilt, including defendant’s flight and jail statements. The prosecutor then observed, “You know, in a lot of cases, in a lot of trials before juries, jurors just don’t have the luxury that you have in this case. You might get direct evidence, you might get one witness to a crime, and that’s it; or you might just have a lot of circumstantial evidence. But in this case you have both. You have that luxury of both.”
Defendant argues that the prosecutor wrongly relied on matters outside the record in referring to other trials and implied that other juries have convicted on less evidence. We are not convinced that this is a fair appraisal of the prosecutor’s comments when read in the context of her argument as a whole. The central focus of the prosecutor’s remarks was that the jury had the “luxury” of both direct and circumstantial evidence. Nevertheless, even assuming some impropriety in the remarks, we find no prejudice.
3 Failure to renew Batson/Wheeler motion
Finally, we reach defendant’s last critique of trial counsel. Defendant argues that counsel should have renewed his Batson/Wheeler challenge after the prosecutor exercised a fifth peremptory challenge against an African-American, panelist D.C., and again at the end of jury selection when a full comparison could be made between the panelists who had been challenged and those who had been seated. “ ‘Counsel is not required to make futile objections’ ” (People v. Harpool (1984) 155 Cal.App.3d 877, 886), and there was no basis for objection here.
D.C. was a retired and divorced 60-year-old African-American female living in Oakland who had worked for the Social Security Administration. No inference of discriminatory purpose could be derived from the prosecutor’s challenge of D.C. D.C. had nephews who were convicted of crimes in Alameda, and she indicated on voir dire that her relatives’ negative experiences with law enforcement made her question the effectiveness of the criminal justice system. When the prosecutor asked D.C. if the panelist thought her “judgment might be somewhat clouded” by her experiences, D.C. admitted: “It’s a possibility.” Defense counsel was not incompetent in failing to challenge the prosecutor for striking D.C. from the jury panel, nor in failing to renew the Batson/Wheeler motion at the end of jury selection. As we have already discussed, a comparison of the panelists who were challenged and those who were seated does not disclose any discriminatory use of peremptory challenges.
Iii. DISPOSITION
The judgment is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.