Opinion
A094952.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ODELL EPPS, Defendant and Appellant.
Defendant Timothy Epps was convicted on 17 counts for a violent home invasion robbery that occurred in Piedmont in June 1998 and for a string of robberies that were committed in the following months. He appeals his conviction and sentence, asserting a variety of errors. We affirm in large measure, but remand for further proceedings to determine whether the prosecution improperly used its peremptory challenges and, if not, for the trial court to correct certain sentencing errors.
I. BACKGROUND
There was substantial evidence at trial of the following facts.
1. The Piedmont Home Invasion Robbery
Jean R. lived in Piedmont in 1997 and 1998 with her husband and their two sons who were approximately two and three years old at the time. In the fall of 1997, she went to the Saw Mill furniture store in Oakland looking for step stools for her sons. At the store an employee, Lawrence Coelho, assisted her. The following spring, she returned to the store to purchase a table and bench for her sons. Again, she was assisted by Coelho, whom she described as being "very helpful. . . . He was a very friendly individual, and he knew his business, and I liked him." When she visited the store, she was wearing her wedding ring, a "very flashy, very noticeable" heirloom from her husbands family that had a large diamond in the middle, surrounded by six smaller diamonds. She was also wearing a blue topaz ring with diamonds, and a costume jewelry watch decorated with rhinestones that she and her husband purchased on a trip to Hawaii.
On the morning of June 19, 1998, Jean was seven months pregnant. Her doorbell rang a little after 8:00 a.m., after her husband had left for work and her children had gone to the basement to watch television. Before opening the door, she looked out the window and saw Epps with flowers, a pen, and a leather notebook. She and her husband had argued the night before and she thought he might have sent her flowers to apologize.
When Jean opened the door, she testified that Epps "barged in. He walked forward into my home almost pushing me back into my entryway. He came in with force. He came in with a purpose." She testified that when Epps asked if she was Jean Riley, she told him she was not and gave him her correct surname. According to Jean, Epps told her that she had to sign for the flowers and handed her the leather notebook. When she looked down and saw that there was nothing to sign, Epps pulled a gun and pointed it at her. Jean looked directly in his face.
Although Epps admitted to ringing the doorbell with flowers in hand, he claimed that two other men entered the house after Jean answered the door. Jean testified that only one man, the one who rang the bell holding flowers, entered the house. The attacker said that he was not going to hurt her, and that he wanted her watch and other jewelry. Jean took off her diamond ring. The attacker again demanded the watch. Jean assumed that he was referring to the rhinestone watch, but it had been broken for some time and her husband had returned it for repair or replacement. Therefore, she took the man to the breakfast room where she had another watch in a cupboard. He followed her with the gun to her back. When she offered that watch to him, he said, "Oh no, not this. This is not the watch." Jean asked him which watch he was talking about and he replied, "The watch you had on at Halloween." She told him that she did not have the watch he wanted, but offered to give him other jewelry from her jewelry box.
She led him upstairs to her bedroom and into her bathroom vanity area. The robber told her to lie down on her face. Jean told him that she could not because she was pregnant. He produced plastic ties and told Jean to get on the floor in the bedroom, where he tied her hands together and then pulled her left leg up behind her and tied it to her hands. At various times during the assault, the robber became angry and tightened the ties. He continued to demand the watch, and Jean repeatedly insisted that she did not have it. She encouraged him to go through her jewelry box and take other items, including the topaz ring. He found the topaz ring, but continued to demand the watch.
When Jean was still unable to produce the watch, the robber hit her on the top of her head with the butt of his gun between three and six times. She began bleeding and "seeing stars," although she did not lose consciousness. Again he demanded the watch, and again Jean told him that it was being repaired. He threatened to kill her and her sons if she did not give him the watch. She encouraged him to go downstairs and take her silver. He went downstairs and she could hear him "thrashing about."
At some point the robber returned and tied a sheet or pillowcase around Jean as a gag, making it difficult for her to breathe. Then he attempted to strangle her with another sheet or pillowcase, and put sheets and blankets over her head in an apparent attempt to suffocate her. At some point he uncovered Jeans head to reveal his penis, which she described as being black, approximately an inch from her nose. He told her that she "must want it. Come on, baby, you are going to get this. You are going to get this if you dont get the watch. You must want this." He then spread her legs and pulled her underwear down. She was looking directly at him as he "very, very violently and forcefully shoved the gun" into her vagina.
The robber then went downstairs looking for more valuables. He was yelling to Jean, but she was unable to answer him because of the sheets and blankets over her head. He became angry that she was not responding. He returned to the bedroom and hit her over the head with a bottle, which shattered and cut her head. He then threatened to light her and the house on fire.
A short time later, the assailant left the house. After resting, Jean managed to slowly inch her way down the hall. She went to her sons room, where she called to a neighbor from the window. The neighbor came to her assistance, called for an ambulance, and cut the ties that were deeply embedded in her wrists. The responding paramedics described Jean as "very clear and lucid." At trial, when asked whether Jean was "disoriented or confused in relation to any questions," one of the paramedics responded, "Not at all. She was very coherent throughout the whole - my experience with her." She was taken to the hospital and treated for her cuts, and given drugs to stop the premature labor that had begun as a result of the trauma. Jean testified that her hands had been bound so tightly that it was weeks after her baby was born before she regained feeling in her hands. A neurologist who examined Jean the day of the attack testified that she had "normal cognition, thinking ability." The emergency room physician testified that Jean was "alert and lucid, that she had good recall . . . ." On cross-examination it was established that a head trauma of the sort Jean had suffered could cause memory loss, but that it would not cause delusions. The neurologist testified that there was no evidence that Jean suffered from amnesia. The results of the physical examination were consistent with Jeans account of the assault, revealing, among other things, the presence of blood and redness in her vagina.
Approximately two months after the attack, Jean delivered a healthy baby girl.
Shortly after the attack, Jeans neighbors posted a $ 50,000 reward for information leading to the arrest of the attacker. This money attracted a number of leads, and on June 30, 1998, the police presented Jean with two photo lineups, each containing approximately six photographs of African-American men. Among them were between four and six suspects who had been identified based on tips and Jeans description of her assailant. Jean did not identify anyone in this lineup. Jean viewed at least 17 other photo lineups of individuals selected from tips and a police database of serious sex offenders. Jean had not identified anyone in these lineups as of August 4, 1998.
On August 17, 1998, the police received a tip that led them to include a photograph of Epps in a lineup. On September 15, 1998, they presented Jean with this lineup. She immediately identified Epps as her assailant. She testified that when she saw his photograph, "I think I almost threw up. There was a pit in my stomach. There he was." She also testified that during the assault Epps had been clean-shaven, but that in the photographs he had a goatee and mustache. Nevertheless, there was "no doubt" in her mind that Epps was her attacker. In early October 1998, Jean attended a physical lineup, where she again immediately identified Epps as her attacker and again "had a horrible nauseous reaction" upon seeing him. Even though she was certain that Epps was the attacker, she asked that the members of the lineup say some of the things she had heard Epps say on the day of the attack "for [her] own satisfaction, . . . to hear his voice one more time."
After Jean identified Epps in the lineup, the police continued to maintain contact with the person who had called in the tip, whom they later identified as Coelho. On October 15, 1998, Coelho led the police to the bathroom of a gas station in Lafayette, where they found five Polaroid photographs of the ring that was taken during the robbery. On October 19, 1998, Coelho led the police to a videotape hidden at a cemetery near Piedmont. The videotape contained footage of the ring setting from Jeans ring. On October 26, 1998, Jean identified Coelho in a photo lineup. The police found the ring setting in the trunk of Coelhos car.
2. The ATM Robberies
While the investigation of the Piedmont robbery was in progress, a series of robberies were perpetrated in Oakland, for which Epps was eventually charged. The first occurred on August 15, 1998, sometime before 11:00 p.m. when Sonia Reyes and her friends Monica Maldonado, Sergio Villanueva, Moises Antuna and Vanessa Collazo stopped at a Wells Fargo Bank on Hegenberger Road. While Antuna was out of the car at the ATM machine, the others saw Epps cross the parking lot. When Antuna returned to the car, Reyes got out to let him back in. As he did so, Epps appeared and announced, "Break yourself, mother fuckers. Youre going to get it if you dont," which Reyes understood to mean that they were to give him their money. Epps placed the gun about halfway up Antunas ribcage and demanded money, and Antuna gave him the cash he had just withdrawn from the ATM. Epps then put his head in the car, pointed the gun at those inside, and Maldonado gave him some additional money. Shortly after that, he left.
Reyes was standing about two feet from Epps when he initially approached the car. She testified that she saw a black revolver in his hand, which she described in some detail. She testified that she could tell that it was a real gun and not a toy. Collazo likewise testified that when Epps put his head in the car, his face was two to three feet from Collazos, and that nothing obstructed her view of him. She testified that she was familiar with various types of guns from her service in the marines and that he was holding a revolver. Antuna also identified the gun as a revolver, possibly a .38 caliber with a barrel approximately eight to ten inches long and black in color. Although Villanueva testified that he did not know "anything about guns," he also testified that he knew that the gun Epps was using "was a revolver because it has a round thing you put the bullets in."
3. The Arco Robberies
Also on August 15, 1998, David Paredes and Arejelio Cardoba Rojas were working as cashiers at an Arco gas station on Hegenberger Road. They testified that sometime after 11:00 p.m. Epps entered the store with a paper bag, pointed a gun at Parades, and demanded that he give him all of his money. Based on his experience with guns, Paredes identified the gun as a .38-millimeter revolver with a black finish. After Epps took money from Paredes cash register, he turned to Cordoba and demanded that he open his register, which Cordoba did. Epps reached over the counter and took money from the second register. Cordoba also testified that he saw a gun in Eppss hands that was approximately 10 inches long. Paredes and Cordoba both testified that Epps was wearing a beanie and sunglasses.
4. The Pakn Save Robbery
On August 23, 1998, Wanda Westbrook was working at Pakn Save Foods on Hegenberger Road. Around 10:00 p.m., she was counting her cash when Epps approached her, placed a gun on the counter, and ordered her to give him all of her money. She looked around to see if anyone was watching and stepped back. Epps told her, "Ill blow your head away." Westbrook put the money from her cash register in front of Epps and he took it, along with food stamps and checks. She testified that Epps was approximately a foot away from her during the robbery and that she "got a very good look" at him.
Westbrook attended a lineup in October 1998. She asked if she could see Epps wearing a hat like the one she remembered the robber wearing, but the police were unable to comply with her request. Westbrook identified Epps with a question mark, but testified that "the facial expressions are exactly the same. Theres nothing about the face thats different. Just the hat." On cross-examination, when pressed as to whether the question mark signified uncertainty about her identification, she stated, "I put a question mark because he wasnt wearing a hat in the lineup. I didnt put a question mark because I wasnt sure. I was sure. . . . [P] . . . [I told the police] that he was the one who robbed me. Yes, I was sure about that. It was the hat. Thats the only thing. You may not understand that, but that was my understanding as to what I should do." She also identified Epps at the preliminary hearing and stated that she had no doubt that Epps was the robber. She also unequivocally identified Epps at the trial. She testified that she was not able to tell whether Epps had a scar on his forehead because he was wearing a hat. Westbrook described the gun used in the robbery as being approximately eight to ten inches long and as "an old gun, because it was worn. It was black. It had brown on it. . . . It wasnt a big huge gun."
5. The First Park Plaza Robbery
On August 29, 1998, Deborah Washington was working as a night auditor at the Park Plaza Hotel on Hegenberger Road. Around 10:45 p.m., Epps entered the hotel and Washington stepped to the counter to greet him. Epps asked the price of a room, and they negotiated for a moment. Epps hesitated and then turned to Washington and said, "Give me all your money." Washington could see the barrel of a gun in one of his coat sleeves. She described the gun as an old, black revolver. She set the drawer of her cash register on the counter, and he took the bills out of it. He then demanded that she open the drawer of the other register, which she did. At that point, people began entering the lobby of the hotel from the banquet room, and Epps left. At trial, Washington initially identified Epps as the perpetrator but later testified that she was not able to positively identify him at a lineup, at the preliminary hearing, or at trial. At the lineup, she identified Epps and another individual with question marks. The surveillance camera in the hotel lobby was not working at the time of the robbery.
6. The Second Park Plaza Robbery
On September 7, 1998, the same Park Plaza Hotel in Oakland was robbed. Amiel Laxamana was working at the front desk when a man who was later identified as Epps entered the hotel around 6:00 p.m. The man walked to the desk and whispered to Laxamana, "this is a robbery. . . . Give me all your money." Laxamana testified that he "stuck out a beanie" but that he was not certain that it contained a gun. Laxamana opened the drawer to his register. He tried to get the attention of his supervisor, Richard Myers, who eventually came to the desk and, apparently not understanding that a robbery was taking place, instructed Laxamana to call security. When Laxamana picked up the radio to make the call, the robber instructed him to put the radio down, then reached over the counter and took the cash from the cash register. Myers attempted to stop him.
Laxamana testified that he had a good opportunity to see the robbers face. He identified Epps as the robber at the preliminary hearing and at trial. Myers testified that he "got face to face" with the robber at one point and that he had between one and three minutes to look at his face. Myers identified Epps as the person who had perpetrated the robbery in a photo lineup and at the preliminary hearing. At trial he testified that he had no doubt that Epps was the robber. The jury was shown a videotape made by the hotel surveillance cameras during the robbery.
7. The San Leandro Grand Theft
On September 10, 1998, at around 11:35 a.m., Villabah Patel, a manager for a large hotel, was making a deposit at a bank in San Leandro. He was at the merchant window with two moneybags, one containing approximately $ 7,000 and another containing approximately $ 6,400. When he got to the window, he set both bundles on the counter. The teller took one to count. While Patel was waiting for the teller to return, Epps approached from behind, reached over Patels shoulder and grabbed the second moneybag, then ran out of the bank. Patel never got a look at Epps, and could identify only his race based on seeing his arm, but the bank surveillance camera clearly showed Epps as the perpetrator.
8. The Bus Automotive Parts robbery
On September 16, 1998, Safio Mohammed was working as an assistant manager at Bus Automotive Parts in Oakland. Around 2:45 p.m., he was working at the counter with a coworker, Nelson Gonzalez, when someone he later identified as Epps walked in and pointed a gun at him. The robber ordered Mohammed to put money from the cash register into a paper sack, which Mohammed did. Mohammed testified that he was not particularly familiar with guns, but described the weapon as "a handgun, metal barrel." Gonzalez testified that he was somewhat familiar with guns and that the gun used was a revolver, dark colored and possibly .38 caliber. Mohammed testified that the robber was wearing "a beanie hat with a Nike symbol on it" and sunglasses, and that he had "a goatee, like a beard." Gonzalez also testified that the robber was wearing a beanie and sunglasses. Mohammed testified that the robber ordered both men to get on the ground. Mohammed complied, and the robber pointed the gun at Gonzalez, saying, "Get down, youngster." Gonzalez did not have time to comply before the robber fled the store. Mohammed attended a physical lineup but was unable to identify anyone as the perpetrator. He put a question mark under the position of the second person in the lineup and it was stipulated that Epps was at position number three. Gonzalez marked Epps with a question mark at a physical lineup, but at the preliminary hearing he felt "a hundred percent sure" that Epps was the perpetrator after hearing him say, "Give me the money, and move fast." Gonzalez also positively identified Epps at trial.
9. The Hungry Hunter Robbery
On September 17, 1998, Sydney Mayclin was working as a bartender at a Hungry Hunter restaurant in Oakland. Around 7:45 p.m., a man entered and told her that he wanted to place an order to go. She gave him a menu and left for a moment. When she returned, she looked down and saw the barrel of a gun pointed towards her from underneath the menu. She described the gun as a black revolver with a sight at the end. On cross-examination, she testified that she knows the difference between a revolver and an automatic, and that the gun she saw had a small, round, thin barrel. She further explained that her husband has a few revolvers and that the barrels looked similar to the barrel on the gun she saw during the robbery, because it was round, not square like an automatic.
The man told her to give him the money from her cash register, which she did. When she had stacked the money on the bar, he said, "I want it all" and she lifted the tray in the register to show him that there was no money there. He then ordered her to lie on the ground, and she knelt behind the bar until he was gone. Mayclin identified Epps in two photo lineups and at trial. She stated that she had no trouble identifying him in the photo lineup. She also testified that he looked like he had put on weight at the time of the trial compared to the time of the robbery. She testified that he did not have a mustache and goatee at the time of the robbery, though he had grown them at the time of the trial. She testified that she did not notice if the robber had any facial scars, but that he was clean shaven, that he was not wearing a hat, and that she believed he was wearing a blue and green vertically striped polo shirt. When pressed on the certainty of her identification, she stated, "I am positive it is him."
Trisha White, the general manager of the Hungry Hunter at the time of the robbery, also was working the night of September 17, 1998. She testified that a man, whom she later identified as Epps, entered the restaurant just before 7:45 and asked her where he could place an order to go. She "talked to him, . . . addressed him, made eye contact, had a conversation with him, directed him into the bar." A few minutes later, she saw him walk out of the bar with "a big wad of money in his hand" that he did not have when he had walked in. She "tried to make eye contact again" as he was leaving, but he ignored her. A moment later, Mayclin appeared and told White that she had been robbed. White identified Epps the next afternoon in a photo lineup. She also identified him at the preliminary hearing and at trial. She stated that at the time of the robbery, Epps was clean-shaven, had less hair and appeared thinner than at the time of the trial.
The night of the Hungry Hunter robbery, Officer Marcus Midyett was on patrol in a marked police car in Oakland. He and a fellow officer responded to the report of the robbery. After taking a witnesss statement, Officer Midyett began driving around the area looking for a suspect. He parked his car at a liquor store and was about to enter when he saw Epps, whom he recognized from previous contacts, leaving the store. Epps matched the description of the suspect from the robbery, and was wearing a green, black, white, yellow and red striped polo shirt. Midyett called the other officer, who was still at the restaurant, and got a more detailed description of the suspect. After hearing the detailed description, Midyett attempted to stop Epps for further investigation. According to Midyett, he asked Epps to stop, but Epps refused and got into the drivers seat of a white car parked outside the liquor store. A woman, later identified as Eppss girlfriend Kim McClanahan, was in the passenger seat. Midyett approached the car, shined his flashlight through the open moon roof, and again told Epps to stop. Epps again said "No" and drove away. Midyett followed with his lights flashing and sirens on. Epps eventually jumped from the car while it was still moving and began running. Midyett followed the car, which was now being driven by McClanahan, and eventually pulled it over. He also put out a description of Epps and the direction in which he was seen running, but Epps was not detained that night.
Midyett testified that he had seen Epps on numerous occasions prior to September 17, 1998. He testified that Epps had a scar in the middle of his forehead that Midyett believed he saw on September 17, 1998. He also testified that he believed Epps did not have a goatee the night of the robbery and that his mustache was just growing in. Finally, Midyett testified that he had never seen Epps completely clean-shaven.
10. Arrest and Interviews of Epps
In October 1998, Epps was arrested by the FBI in Florida, who contacted the Fugitive Unit of the Oakland Police Department. Two sergeants from the Oakland Police Department went to Florida to retrieve Epps. While in Florida, the sergeants asked Epps about each of the robberies described above, except for the Piedmont home invasion robbery. Epps denied involvement in any of the robberies, but admitted that he had committed the grand theft in San Leandro. After returning with Epps to Oakland, the police conducted a second interview. During this second interview, Epps confessed to committing the robberies at the ATM on August 15, 1998, and at the Park Plaza on August 29, 1998. He told the police that he had been introduced to Coelho by someone whom he identified as "Partner." Coelho told Epps and Partner that Jean had tens of thousands of dollars worth of diamonds, and that he had her home address. According to Epps, the three agreed to commit a residential burglary and to split the money. Epps told the police that his criminal expertise was drugs, but that Coelho knew the quality of diamonds and a fence who could sell them. Epps told the police that on the day of the robbery, Coelho and Partner picked him up and drove to Jeans house. Coelho told Epps to knock on the door and ask for Jean Riley. Epps said he approached the house first, followed by Coelho and Partner. He told the police that after Jean opened the door and he asked for Miss Riley, she turned and Coelho and Partner rushed the door, at which point Epps walked back to the car.
Epps also told the interviewing officers to turn off the tape recorder, and when they did so he said to them, "You cant put a gun in my hand." He suggested that he had used a toy gun to commit the robberies because one of his sisters was shot and killed by someone trying to kill a roach, and therefore he does not carry a gun. However, one of the officers testified that the witness statements were consistent with the appearance of a real gun, and that there was no evidence to support Eppss statement that he had used a toy gun.
Epps told the police that he had seen Officer Midyett the night of the Hungry Hunter robbery, and that Midyett had tried to stop him, but that he could not hear what Midyett was saying because a radio was playing, so he drove away. Epps told the police that Midyett turned on his lights after he had followed Epps for some time. Epps said that he then "parked the car, got out and walked to my friends house."
11. Charges and Trial
Epps was charged in a second amended information with the following crimes: first degree robbery (Pen. Code, §§ 211 & 212.5, subd. (b) - count I) (Jean); sexual penetration by a foreign object ( § 289, subds. (a) & (b) - count II) (Jean); assault with a deadly weapon ( § 245, subd. (a)(2) - count III) (Jean); robbery ( § 211 - count IV) (Antuna); robbery ( § 211 - count V) (Maldonado); attempted robbery ( §§ 664 & 211 - count VI) (Reyes); attempted robbery ( §§ 664 & 211 - count VII) (Collazo); attempted robbery ( §§ 664 & 211 - count VIII) (Villanueva); robbery ( § 211 - count IX) (Paredes); robbery ( § 211 - count X) (Cordoba); robbery ( § 211 - count XI) (Westbrook); robbery (§ 211 - count XII) (Washington); robbery ( § 211 - count XIII) (Laxamana); grand theft ( § 487 - count XIV) (Patel); robbery ( § 211 - count XV) (Mohammed); robbery ( § 211 - count XVI) (Mayclin); and assault with a deadly weapon ( § 245, subd. (a)(2) - count XVII) (Jean).
The name of the victim of each crime is included for clarity.
All further statutory references are to the Penal Code unless otherwise noted.
The second amended information was orally amended on October 2, 2000, to change the assault alleged on Jean in count III to an assault with a firearm, and to add count XVII, which alleged assault with a bottle.
The information alleged the following enhancements: personal use of a firearm and great bodily injury under count I; aggravated burglary, great bodily injury, personal use of a firearm and tying or binding of the victim under count II; personal use of a firearm and great bodily injury under count III; personal use of a firearm under counts IV through XII, XV and XVI; and great bodily injury under count XVII. The information also alleged that Epps had served three prior prison terms.
Epps pleaded not guilty to all counts and denied all allegations in the information.
At trial, in addition to the evidence summarized above, the prosecution introduced a typewritten letter that was sent from the jail where Epps was housed prior to trial. The letter was addressed to a David Bishop and had been intercepted on August 3, 2000. The letter states, "Its very, very important that you try to get this gun for me, okay. What I need is for you to go buy a fake, plastic gun so that my lawyer can use it and present it as evidence. . . . This way the D.A. cant charge me with a gun clause. It will also knock off several years of any sentence-or any time that these people are trying to give me. . . . I was trying to relay this to you on the phone, but I almost forgotten [sic] that these people monitor the telephones here, so that that wouldnt have been very wise of me, right?" The letter ends, "Timothy Epps, 2000, in love for life." There was testimony that although inmates sometimes send mail using the names of other inmates, Epps was the only person in the jail who signed his letters in this way.
The prosecution also introduced tapes of conversations that Epps had with McClanahan while he was in jail awaiting trial. In the first conversation, McClanahan asks Epps, "Why did you use a gun?" to which he replied, "Kim, what, Im going to go tell them like an idiot. Youre so retarded. I go up in the store and look at them and tell them give me the money and they going to look at me crazy, retarded." After an exchange in which Epps implied that he was afraid McClanahan would leave him because he did not have enough money, McClanahan stated, "But that dont mean for you to go rob nobody." Epps replied, "Oh, now, you, now, you okay." A moment later, McClanahan said, "You know what you could have did, Tim? If you could have stopped smoking that mother fucking shit, you could have got your ass out there and sold dope like you did before. Didnt you sell dope before? You wasnt robbing people before." Epps responded, "Save it," and after a brief exchange McClanahan said, "Thats what I wanted you to do, be a drug dealer. But no, you wanted to be a damn robber and shit," to which Epps responded, "And you wanted . . . me to just smoke, smoke, smoke." McClanahan replied, "No, I want you to be a drug dealer. I want you to sell drugs and keep you out trouble." (Sic.)
During another conversation, Epps said to McClanahan, "You know all the robberies?" and McLanahan said, "Uh-huh." Epps continued, "Uhm, all the, all the people picked different people. All the people picked different people. They had different descriptions of me. And at the Hungry Hunter robbery, they said uh, that, that I supposedly left in a Ford Taurus, I was, but I was in a Hyundai."
Finally in a third conversation, Epps told McClanahan, "Let me tell you whats been happening in court. All the witnesses been coming to court. And baby, guess what, the AM/PM had a picture and it kind, you can kind of almost tell its me, almost." McClanahan asks, "What is it?" Epps responded, "An AM/PM, remember when I did that thing? . . . It kind of had a picture of me."
Epps presented two witnesses in his defense. First was Christine Middleton, a crime scene technician with the Oakland Police Department. She was involved in processing Jeans house for fingerprints on June 19, 1998. Middleton collected nine prints from the living room and two from the dining room. She and the detectives investigating the crime recovered 34 prints, none of which could be identified as belonging either to family members or to Epps. She testified that fingerprints are delicate and that they are easily smudged or wiped away. Finally, she testified that identifiable fingerprints are only found at a crime scene approximately 12 to 17 percent of the time.
The second witness for the defense was Raquel Craft, a latent fingerprint examiner with the Alameda County Sheriffs Department. She testified that of the 36 latent prints found at Jeans house on June 19, 1998, none were of excellent quality and 27 were of no value at all. Thirteen of the prints were of partial value. Of those, she was able to identify four as belonging to Jean and her husband. The remaining prints were compared to those of Epps and Coelho, but could not be identified, and therefore "could have been Timothy Eppss or anyone else[s]." She did not have prints for comparison from any members of Jeans family other than Jean and her husband, or from friends who might have visited the house.
The final piece of the defense case was a stipulation that seven latent fingerprints had been recovered from the menus at the Hungry Hunter; that of the seven, four could not be used for identification because of their poor quality; and that, of the remaining three, none belonged to Epps.
In his closing argument, Eppss attorney conceded that Epps was guilty of the robberies of Antuna, Maldonado, Reyes, Collazo, Villanueva, Paredes and Cordoba (the ATM and Arco robberies) and the grand theft from Patel. He further conceded that Epps was involved in the robbery of Jean, but argued that it was "Partner" who had actually entered the house and committed the assaults. Therefore, he argued, Epps was not guilty of either the assaults or use of a firearm. Further, the defense argued that, even if Epps perpetrated the assaults, the prosecution had not proven the use of a firearm in the commission of the crimes. As to the remaining counts, the defense argued that the witnesses had misidentified Epps. The defense further argued that for each of the crimes in which it was alleged that Epps had used a gun, the use of a firearm had not been proven beyond a reasonable doubt because the witnesses were not familiar with guns.
The jury found Epps guilty on all counts except count XV, the robbery of Mohammed, on which it was unable to reach a verdict and a mistrial was declared. Epps waived a jury on the prior conviction allegations, and the court found these allegations to be true.
On April 27, 2001, Epps was sentenced to 93 years in prison. The sentence consisted of an indeterminate term of 25 years to life for count II; a determinate term of 65 years for the remaining counts, with count I used to determine the principal term; numerous consecutive subordinate terms for the remaining counts; and three years for three prior prison term enhancements. Epps timely appealed.
II. DISCUSSION
1. Severance
Before trial, Epps moved to sever the trial of the home invasion robbery counts (counts I through III and XVII) from trial on the remaining counts on the ground that a joint trial would unduly prejudice the jury. The trial court denied the motion, finding that trying the charges jointly would not be "too prejudicial." We review the denial of the motion for severance for abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 508, 896 P.2d 119.) "To establish an abuse of discretion, defendant must make a clear showing, based on the record before the trial court when it denied the severance motion, that joinder of these offenses presented a substantial danger of prejudice." (People v. Mayfield (1997) 14 Cal.4th 668, 720, 928 P.2d 485.)
Section 954 provides that separate offenses may be charged in the same accusatory pleading and tried together, but that the court "in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ." There is a policy in favor of joint trials, however, because joinder "benefits the public by reducing delay in the disposition of criminal charges, and it benefits the state by conserving judicial resources and public funds." (People v. Hill (1995) 34 Cal.App.4th 727, 735.)
"Joinder is generally proper when the offenses would be cross-admissible in separate trials, since an inference of prejudice is thus dispelled. [Citations.] However, joinder is often permissible even when cross-admissibility is not present. Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. [Citation.] In determining potential prejudice from the joint trial of non-cross-admissible charges, the court should evaluate whether (1) certain of the charges are unduly inflammatory, (2) a weak case will be unfairly bolstered by its joinder with other charges, and (3) any of the charges carries the death penalty." (People v. Arias (1996) 13 Cal.4th 92, 126-127, 913 P.2d 980.)
The state does not argue that evidence of the home invasion robbery would have been admissible at a severed trial of any of the other charges, nor vice versa. Rather, it argues that the Piedmont robbery was "not so inflammatory as to require severance." In support of this argument, it cites a case for the proposition that rape at gunpoint is not highly inflammatory or offensive. In Verzi v. Superior Court (1986) 183 Cal. App. 3d 382, 228 Cal. Rptr. 299, three victims had allegedly been raped at gunpoint by the defendant. In upholding the denial of the motion to sever, the Court of Appeal held: "First, the rapes (as well as the burglaries and oral copulation) in the present case are not highly inflammatory or offensive. As suggested in Newman v. Superior Court (1986) 179 Cal. App. 3d 377, 383-384, 224 Cal. Rptr. 538 . . ., while rape is an offense as to which the public has properly shown great concern, the trial court could well say as did the Supreme Court . . .: "By the sad standards of the 1970s and 1980s, they were not particularly brutal, repulsive, or sensational." " (Id. at p. 388.)
It is not necessary for us to agree with the Verzi courts characterization of rape and forced oral copulation as "not highly inflammatory or offensive." Several factors distinguish the sexual assault that occurred in this case. First, Jean was seven months pregnant when the assault occurred. Second, unlike the victims in Verzi, where the act of intercourse was described as "gentle," Jean was violated with a gun so brutally that the examining physician found blood in her vagina. The attacker threatened to shoot Jean and the baby she was carrying. Finally, her hands were bound so tightly during the assault that it was weeks before she regained feeling in them. The evidence of the Piedmont assault and robbery was both highly inflammatory and offensive. The potential prejudice arising from the sensational and brutal nature of the Piedmont offense, which apparently had garnered significant media attention, and the absence of cross-admissibility and consequently the relatively minimal time saving that was to be accomplished by trying all of the offenses together, were factors that militated in favor of severance.
We find it disingenuous, at best, that the Attorney General attempts to characterize this assault as being neither highly inflammatory nor offensive in light of the argument made by the prosecutor at trial concerning the assault. He argued in part: "On June 19, 1998, this man, Timothy Epps, savagely beat and sexually assaulted a woman who was seven months pregnant, that he watched and waited along with that man, Lawrence Coelho, like two snakes in the grass. They waited to strike until their prey was most vulnerable. [P] Flowers were used to bait the victim. And once Jean . . . was in Timothy Epps clutches he showed her no mercy. He showed her no compassion. We know now that he beat her with a gun. He hog-tied her. That he broke a bottle over her head, and in the most violent act of all, he took a gun, that same gun that he beat her with, a gun he shoved it up her vagina within inches of that unborn child."
Nonetheless, these weighty considerations favoring severance do not end the inquiry. We must also look at the relative strength of the cases to determine if the strength of one case was likely to bolster a weaker case. The trial courts ruling on the motion for severance must be evaluated in light of the facts known at the time the motion was made. (People v. Balderas (1985) 41 Cal.3d 144, 171, 222 Cal. Rptr. 184, 711 P.2d 480.) In opposing the motion to sever, the prosecutor addressed the strength of the respective cases, and pointed to the evidence he intended to introduce: "This is not a situation where [the] People are attempting to bolster a series of weak cases with a strong case. [P] Here each of the robberies that took place after the Piedmont home invasion can be proved either by eyewitness identification, through admissions made by the defendant either to the police or during the course of jailhouse conversations or through security photographs, through surveillance videos, often some combination thereof. So its not a matter of the People playing buttress to weak cases with strong cases."
The trial judge implicitly accepted this evaluation, and the accuracy of that assessment is borne out by the evidence that was presented at trial. The evidence supporting the Piedmont robbery was very strong. Jean was a highly credible witness whose account of the events did not vary, even under a lengthy and rigorous cross-examination. She was able to observe the perpetrator for much of the time that the assault was taking place, including looking directly into his face as the sexual assault occurred. Based on these observations, she did not identify any other suspects in the numerous photographic lineups she was shown, but was able immediately to identify Epps when his photograph finally appeared in a lineup. Although no fingerprints belonging to Epps were recovered from the home, the absence was adequately explained by the investigator who testified that fingerprints are easily destroyed and are only rarely recovered at crime scenes. Moreover, although denying he had entered the house or committed the assaults, Epps admitted he had planned the robbery and was at the door of Jeans home at the start of the horrible episode. The police recovered from the floor in the foyer the flowers that Epps admitted he was holding when he rang the front doorbell, further corroborating Jeans account that the same individual who rang the doorbell entered the house and perpetrated the assaults, and undermining Epps version of events.
The evidence supporting the remaining robberies likewise was strong. As noted above, in his closing argument Epps conceded he had committed a number of the additional robberies. We shall examine the additional evidence supporting conviction on each in turn. First, Epps confessed to committing the ATM robberies when the police interviewed him after his arrest. In addition to his confession, all four victims testified consistently about the events of that night. In September 1998, Reyes identified Epps in a photo lineup without hesitation. Although she told the police that Epps looked thinner the night of the robbery than he did in his photograph, she had no hesitation in identifying him in the photo lineup. She also identified him at the preliminary hearing and at trial. Collazo was presented with a photo lineup that did not contain a picture of Epps and she did not identify anyone, but she identified Epps at the preliminary hearing as the perpetrator. Antuna identified the perpetrator as one of two people represented in a photo lineup, and positively identified Epps as the perpetrator at the preliminary hearing. Finally, the prosecutor showed the jury photographs of the robber taken by the camera at the ATM.
Paredes identified Epps, at the preliminary hearing and at trial, as the man who robbed him at the Arco station. Cordoba, the second victim in the Arco robbery, apparently was not asked to identify Epps prior to trial, but was able to positively identify him at trial. Both men testified that they had ample opportunity to observe Epps during the course of the robbery. Additionally, pictures from the Arco robberies were introduced at trial, and Cordoba was able to identify Epps in those pictures. Westbrook was also able to clearly view the man who robbed her at Pakn Save Foods and gave a strong identification of Epps at the physical lineup and at trial. Washington, the victim of the first Park Plaza robbery, was not able to give strong eyewitness identification, but Epps confessed to committing this robbery when confronted by the police after his arrest. Laxamana and Meyers both had a good opportunity to view the man who committed the second robbery at the Park Plaza Hotel and provided strong eyewitness identifications before and during trial. Also, the surveillance cameras at the Park Plaza were functional during the second robbery and the jury was able to view the video footage of the robbery. Epps is clearly identified on the surveillance tape from the San Leandro grand theft and he confessed to this crime. Mayclin and White also had no trouble identifying Epps in photo lineups and at trial as the man who committed the robbery at the Hungry Hunter restaurant. Both had the opportunity to observe Epps and their descriptions of his physical appearance were consistent with one another.
In addition to the eyewitness identifications, there was other evidence implicating Epps. Officer Midyetts testimony regarding Eppss flight implicates Epps in the Hungry Hunter robbery. The letter sent by Epps from jail implies that he committed at least some of the robberies and was concerned only with defeating the gun enhancements. Finally, in conversations with McClanahan that were played for the jury, Epps admitted that he committed the Hungry Hunter robbery.
Thus, despite the existence of reasons to have severed the trial of the Piedmont case from the trial of the other robberies, in view of the strength of the evidence with respect to all of the crimes, there was no abuse of discretion in denying the severance motion. In all events, in reviewing the evidence presented at trial, we are confident that this is not a case in which the defendant was convicted of any offense for which there was only weak evidence, bolstered by inflammatory or otherwise prejudicial evidence concerning other offenses. Hence, denial of the motion resulted in no prejudice to Epps.
2. Wheeler/Batson Error
During voir dire, Epps made a "Wheeler/Batson" motion, claiming that the prosecution had exercised its peremptory challenges in a discriminatory fashion in violation of People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (Batson). The court denied the motion, finding that Epps had not made a prima facie showing of improper use of peremptory challenges under Wheeler and Batson.
Although in his appellate brief Epps characterizes the motion as one for a mistrial, the motion was never so characterized below. A Wheeler/Batson motion is typically one to dismiss the jury panel. (See People v. Yeoman (July 17, 2003, S016719) ___Cal.4th ___ [03 C.D.O.S. 6313, 6317] (Yeoman).)
Prior to the motion, the prosecution had exercised five peremptory challenges, three of which were used to excuse Juror Nos. 1, 22 and 40 from the panel. Of these three, Nos. 1 and 22 indisputably were African-American. The race of Juror No. 40 was the subject of some dispute, as she appeared to be both African-American and Korean. Defense counsel conceded that there were reasonable grounds to excuse Juror Nos. 1 and 40. Juror No. 1 had expressed an opinion that recording Eppss conversations while he was in jail was unfair and that jury service would be a hardship for her. Juror No. 40 said that she had relatives who were involved in organized crime in Korea and that she was sympathetic to people who would steal. However, defense counsel argued that no explanation appeared for excusing Juror No. 22.
Juror No. 22 testified that she had lived at her current residence in Oakland for 14 years; that she had been a nurse supervisor at a hospital for about 11 years and in that position supervises 30 staff members; that she had been a nurse for 27 years but had never worked in an emergency room; that she had never had contact with the police in the course of her employment; that she had a Masters degree in nursing administration; that she is single, lives alone, and has a 20-year-old daughter who is studying political science in hopes of becoming a judge; and that she had never been on a jury before. She also testified that she had been robbed at gunpoint in 1980, but that she had never been to a photographic or physical lineup to identify a perpetrator. However, she told the court that she felt she could be fair and impartial in evaluating this case. She testified that neither she nor any of her relatives or close friends had ever been arrested or charged with a crime. She attends church and volunteers there, but is not a member of any other clubs or organizations. She did not remember seeing any media coverage of the Piedmont robbery.
Defense counsel argued that the prosecutors fifth peremptory challenge left no African-Americans in the jury box. He argued that Juror No. 22 appeared "to be an ideal candidate to serve," and that being a victim of an armed robbery herself, "If anything, I would think she would be biased against the defense as opposed to the district attorney. The only rationale that I can see for excusing her has to do with . . . the fact shes an African-American woman and my client is an African-American male." The prosecutor argued that having conceded that there may have been sufficient unbiased reason for dismissing two of the other African-American jurors against whom the district attorney had used peremptory challenges, that defense counsel "certainly has not made a prima facie case because I excused Juror number 22, somehow I exercised my challenges in a prejudicial manner." Defense counsel replied that "the exercise of a challenge against one prospective juror is sufficient to make a prima facie showing." The prosecutor then argued, "That may be true, but in this particular case, I think its clear from the record that again a prima facie case was not set forth by defense counsel." Immediately thereafter, the court held "the court finds that theres an insufficient showing under a Wheeler/Batson and denies the motion at this time without prejudice."
"Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried [citation], the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the States case against a black defendant." (Batson, supra, 476 U.S. at p. 89.) Accordingly, a party may not use its peremptory challenges to remove prospective jurors based on group bias. "Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds." (People v. Sims, supra, 5 Cal.4th at p. 428.)
"There is a rebuttable presumption that a peremptory challenge has been made on a constitutionally permissible ground. (People v. Wheeler , supra, 22 Cal.3d at p. 278.) To overcome the presumption, the party making a Wheeler motion carries the initial burden to establish a prima facie case of group bias." (People v. Williams (2000) 78 Cal.App.4th 1118, 1125.) To establish a prima facie case, the party must make a timely objection, make a record of the alleged discriminatory challenges, establish that the potential jurors whose dismissal is disputed are members of a cognizable class, and show that there is a strong likelihood that the potential jurors are being excluded because of group bias. (Wheeler, supra, 22 Cal.3d at p. 280 ; People v. Johnson (2003) 30 Cal.4th 1302, 1309 (Johnson);People v. Fuentes (1991) 54 Cal.3d 707, 714, 286 Cal. Rptr. 792, 818 P.2d 75.)
In People v. Box (2000) 23 Cal.4th 1153, 1188, footnote 7, the California Supreme Court stated that "in California, a strong likelihood means a reasonable inference. "In Johnson, the Supreme Courts most recent exposition on the standard that must be met to establish a prima facie case, the court concluded "that Wheelers terms, a strong likelihood and a reasonable inference, refer to the same test . . . . Under both Wheeler and Batson, to state a prima facie case, the objector must show that it is more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible group bias." (Johnson, supra, 30 Cal.4th at p. 1306.) "This burden is not onerous [citation], but it is substantial." (Id. at p. 1316.)
The court in Wheeler suggested several ways in which the moving party could demonstrate the necessary likelihood that the use of peremptory challenges was improperly motivated. "The party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole. [Fn. omitted.] Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all." (Wheeler, supra, 22 Cal.3d at pp. 280-281; Johnson, supra, 30 Cal.4th at p. 1309.)
If the trial court denies the motion because no prima facie case was made, as it did here, we must review the entire record for evidence of a nondiscriminatory basis for the manner in which the peremptory challenges were used. (Yeoman, supra, ___ Cal.4th at p. ___ ; People v. Davenport (1995) 11 Cal.4th 1171, 1200, 906 P.2d 1068.) "Because Wheeler motions call upon trial judges personal observations, we view their rulings with considerable deference on appeal. [Citations.] If the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm." (People v. Howard (1992) 1 Cal.4th 1132, 1155, 824 P.2d 1315; Johnson, supra, 30 Cal.4th at p. 1325.)
Although other reasons existed for dismissing Juror Nos. 1 and 40, in determining whether a prima facie showing of improper motivation was made, there is some relevance in the fact that three of the five peremptory challenges that the prosecutor had exercised at the time the motion was made were used against prospective jurors who were African-American or part African-American. The fact that the peremptory challenge that immediately preceded the motion removed the only remaining African-American from the jury box is also significant. The removal of all African-Americans from the jury, by itself, may be enough to raise a reasonable inference that peremptory challenges are being used in a discriminatory manner. (People v. Sanders (1990) 51 Cal.3d 471, 500, 273 Cal. Rptr. 537, 797 P.2d 561.) "A prima facie case was found in People v. Hall [1983] 35 Cal.3d 161, 169, 197 Cal. Rptr. 71, 672 P.2d 854, when five of eight challenges were used to remove all Black jurors; in People v. Clay (1984) 153 Cal. App. 3d 433, 456, 200 Cal. Rptr. 269, when four of ten challenges removed all Blacks; in Holley v. J & S Sweeping Co. (1983) 143 Cal. App. 3d 588, 590, 192 Cal. Rptr. 74, when three of six challenges removed three out of four Black jurors; and in People v. Fuller [1982] 136 Cal. App. 3d 403, 415, 186 Cal. Rptr. 283, when three challenges were used to remove the only three available Black jurors." (People v. Motton (1985) 39 Cal.3d 596, 607, 217 Cal. Rptr. 416, 704 P.2d 176.)
There is nothing in the record to indicate the final composition of the jury. The record contains no indication that after Juror No. 22 was excused, any additional African-Americans were seated as jurors or, indeed, remained among the panel of prospective jurors.
Although the prosecution engaged in more than a desultory examination of Juror No. 22, the information elicited from her underscored the apparent absence of a permissible reason to excuse her. None of her responses to the questions of the court or of the attorneys suggest any reason to believe that she would not be impartial. As defense counsel noted, she appeared to be "an ideal candidate to serve" and, if anything, her responses made her appear likely to be sympathetic to the prosecution, if she were to exhibit any bias at all. After carefully scrutinizing the entire record, this court can find absolutely no race-neutral explanation for having excused Juror No. 22. Neither the prosecutor nor the trial judge made any statements or other observations appearing in the record that support any inference other than that Juror No. 22 was excused because of her race. Hence, as in the remarkably similar case of People v. Gray (2001) 87 Cal.App.4th 781, 789, "defense counsel made a prima facie case of discrimination on voir dire by showing there was no apparent, legitimate reason to excuse" the challenged juror, which called for an adequate explanation from the prosecutor. (See also, e.g., People v. McGee (2003) 104 Cal.App.4th 559, 570-571.)
Contrary to the implication of the prosecutors argument that the trial court seems to have accepted, the fact that the defense questioned only the removal of a single juror did not lessen the constitutional standard. "California law makes clear that a constitutional violation may arise even when only one of several members of a cognizable group was improperly excluded." (People v. Montiel (1993) 5 Cal.4th 877, 909, 855 P.2d 1277.) "Under Batson, the striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors." (U. S. v. Battle (8th Cir. 1987) 836 F.2d 1084, 1086.) "The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal." (People v. Silva (2001) 25 Cal.4th 345, 386; see also People v. Gray, supra, 87 Cal.App.4th at p. 789 ["facts showing there was no apparent reason to exclude at least one of the three potential jurors other than his status as an African-American male" required reversal where trial court denied Wheeler motion without obtaining explanation]; People v. Granillo (1987) 197 Cal. App. 3d 110, 242 Cal. Rptr. 639 [conviction reversed for failure of prosecution to proffer sufficient nondiscriminatory reason for peremptorily challenging a single juror].)
In Johnson, the California Supreme Court, after discussing the appropriate standard of review and the appellate use of comparative juror analysis, held that the trial court had not abused its discretion when it determined that the defendant had not made the necessary prima facie showing to require the prosecution to explain its peremptory challenges. The record in Johnson, however, stands in marked contrast to the record here. There, the challenged jurors answers disclosed race-neutral grounds for the prosecutor to have reasonably challenged the jurors in question. (30 Cal.4th at pp. 1325-1326.) Moreover, before denying the motion, the trial judge carefully scrutinized the jurors answers and defendants arguments and "mentioned reasons" why excusing two of the jurors was supported by legitimate considerations appearing in the record. (Id. at pp. 1307, 1325.) "The court denied the motion in a detailed ruling." (Id. at p. 1307.) Here, in contrast, in response to the defendants motion, neither the prosecutor nor the court pointed to anything in Juror No. 22s responses that negated the inference that she was excused because of her race. The prosecutor merely repeated the conclusory contention that the defendant had not made the necessary prima facie showing and the trial court agreed in equally conclusory terms that the showing was "insufficient." Being unable upon our own careful review of the record to find any possible race-neutral explanation for excusing Juror No. 22, accepting the trial courts unexplained conclusion would constitute the " abandonment or abdication of judicial review, " which the Supreme Court has reiterated is not acceptable. (Id. at p. 1325, citing Miller-El v. Cockrell (2003) 537 U.S. 322, ___ [123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931].)
Similarly, in the still more recent Yeoman decision, in which the Supreme Court upheld the trial courts ruling that a prima facie case had not been established as to three of four challenged African-American prospective jurors, the trial court had "deferred its ruling in order to give the motion more than cursory attention and to review the record" and "thereafter entered a written order finding no prima case." On appeal, the Supreme Court agreed the record did "indicate grounds on which the prosecutor might reasonably have challenged each of the three prospective jurors as to which the trial court found no prima facie case of group bias." (Yeoman, supra, ___Cal.4th ___ .)
Because the record reflects a prima facie showing that the prosecution was exercising its peremptory challenges in an impermissible fashion, the trial court should have given the prosecutor an opportunity to explain his basis for excusing Juror No. 22. In an appropriate case, we may remand for such an inquiry to be made post hoc. "Ordinarily, factors to be considered in determining whether remand is appropriate are the length of time since voir dire, the likelihood that the court and counsel will recall the circumstances of the case, the likelihood that the prosecution will remember the reasons for the peremptory challenges, as well as the ability of the trial judge to recall and assess the manner in which the prosecutor examined the venire and exercised other peremptory challenges." (People v. Williams , supra, 78 Cal.App.4th at p. 1125.) Such a remand was employed in Batson, supra, 476 U.S. at page 100 and in People v. Gore (1993) 18 Cal.App.4th 692, 706. In Batson, two years had elapsed between jury selection and reversal and remand by the Supreme Court. In Gore, only one year had passed when the court issued its remand and the court observed that since that was a capital case, it was likely that all involved had paid close attention to each step of the proceedings.
Although nearly three years have passed since jury selection occurred in this case, we believe that remand for further inquiry is appropriate. First, the length of time is not a barrier to remand, per se. (See United States v. Tindle (1986) 808 F.2d 319 [trial began on October 11, 1983, and remand for further inquiry into reasons for excusing jurors occurred on December 19, 1986].) Further, there is little doubt that this case was a high priority for both prosecution and defense, given the severity and number of the charges. Finally, since the prosecutor did engage in an extended examination of Juror No. 22, he may be able to remember his reasons for excluding her from the jury panel. It is, of course, possible that the prosecutor will not remember his reasons for excusing Juror No. 22 from the panel. However, the circumstances of this case warrant providing him an opportunity to rebut the prima facie showing if he is able to do so. Should the prosecution provide a nondiscriminatory explanation for having challenged Juror No. 22, it will be for the trial court to weigh the credibility of the explanation and to make a finding as to whether or not she was excused for an improper reason. (See, e.g., People v. Montiel, supra, 5 Cal.4th at p. 909 ["If the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal"]; People v. Turner (1986) 42 Cal.3d 711, 720, fn. 6, 230 Cal. Rptr. 656, 726 P.2d 102 ["To the extent that a trial courts ruling on the proffered explanation of a prosecutor turns on the latters credibility, we agree with the United States Supreme Court that a reviewing court ordinarily should give those findings great deference. (Batson v. Kentucky, supra, 476 U.S. [79] . . . .)"].)
3. Evidence that Epps Was a Drug Dealer and User
Epps objected at trial to the introduction of the portions of his conversation with McClanahan in which McClanahan referred to him as a drug dealer and user. The objection was overruled. Epps argues that this ruling was in error under Evidence Code section 1101 and violated his right to a fair trial and to confront the witness against him.
Evidence Code section 1101, subdivision (a) provides that "evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." [Citation.] [P] . . . However, subdivision (b) provides that evidence of specific acts may be admitted "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
The Attorney General argues that evidence of Eppss drug use was admissible to show that he had a financial motive to commit the robberies. This argument is mistaken. "Evidence of an accuseds narcotics addiction is inadmissible where it tends only remotely or to an insignificant degree to prove a material fact in the case . . . . [Citation.] [P] However, in cases where the object of the charged offense was to obtain money or an item other than narcotics, evidence of the accuseds narcotics use has been uniformly found inadmissible." (People v. Cardenas (1982) 31 Cal.3d 897, 906, 184 Cal. Rptr. 165, 647 P.2d 569.)
Regardless of whether the admission was admissible under some other provision of section 1101 subdivision (b), any error resulted in no prejudice. In Eppss confession to the police, which was read to the jury without objection, the police asked Epps, "What is your expertise in your criminal life-jewelry heist man?" Epps replied, "No," and the police again asked, "What is your expertise? If we had an expertise in our crime life?" Epps responded, "Drugs," and when the police further elaborated "Drugs, a drug salesman, right? You know weight, you know quality of drugs," Epps made no objection. Thus, Eppss experience with drugs was already before the jury, and his admissions of drug use, closely intertwined with his implied admission that he had committed at least some of the robberies at issue in this case, would not have affected the outcome of the case. Such evidence, even if improper under Evidence Code section 1101, does not require reversal if no prejudice resulted. (People v. Welch (1999) 20 Cal.4th 701, 749-750, 976 P.2d 754, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89, 999 P.2d 675 ["Whether or not the introduction of such evidence [that defendant was a drug dealer] violated Evidence Code section 1101, it was not prejudicial, that is, it is not reasonably probable that a result more favorable to defendant would have resulted absent admission of this evidence"].)
4. Instruction on Tying or Binding
Count II of the information, which alleged sexual penetration by a foreign object, also alleged that Epps tied or bound the victim under section 667.61, subdivision (e)(6). Under subdivisions (b) and (e)(6), a "defendant [who] engaged in the tying or binding of the victim . . . in the commission of the . . . offense" is subject to life imprisonment (the "one strike law, so called because it imposes life imprisonment as the punishment for certain sex offenses committed under specified conditions even if the offender has no prior convictions)" (People v. Estrada (1997) 57 Cal.App.4th 1270, 1274). The trial court gave no instruction to the jury on this enhancement section. Nevertheless, verdict forms addressed the enhancement and the jury found that Epps "did tie or bind the victim in the commission of the . . . offense." Epps argues that the trial court erred in failing to instruct the jury sua sponte on the elements of this enhancement allegation.
The trial courts failure to give any instruction whatsoever as to the tying or binding enhancement was error. "It is beyond dispute in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to and governing the case. " (People v. Estrada, supra, 57 Cal.App.4th at p. 1275.) "[A] trial courts failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision increases the penalty for [the underlying] crime beyond the prescribed statutory maximum. [Citation.] Such error is reversible under Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824] at page 24, unless it can be shown beyond a reasonable doubt that the error did not contribute to the jurys verdict." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
We conclude that the error in this case was harmless beyond a reasonable doubt. "The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language." (People v. Poggi (1988) 45 Cal.3d 306, 327, 246 Cal. Rptr. 886, 753 P.2d 1082.) "The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established. When a word or phrase "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." " (People v. Estrada (1995) 11 Cal.4th 568, 574, 904 P.2d 1197.)
In this case, had the trial court instructed the jury, it could merely have read the above quoted portion of section 667.61; that is, the jury would have been instructed to decide whether Epps "engaged in the tying or binding of the victim . . . in the commission of the present offense." The verdict form read as follows: "We, the jury, further find that the said defendant [DID/DID NOT] tie or bind the victim in the commission of the above offense." Epps does not explain, and we cannot imagine how reading the statute as part of the instructions could have affected the outcome here. The terms "tie" and "bind" are commonly understood, and are not used in the statute in any technical legal sense. Likewise, no special meaning is attached to the phrase "in the commission of" that requires further definition. (People v. Alvarado (2001) 87 Cal.App.4th 178, 193 ["jurors would naturally understand during the commission of a burglary to include at least the time that a burglar remains inside the structure after entry"].) Having found that Epps committed the offense, the jury could not have failed to find this allegation to be true. There was extensive and uncontradicted evidence from Jean, from the neighbor who freed her, and from the doctors who examined her that confirmed that she had been tied with plastic ties. There is also no doubt that the tying occurred "in the commission" of the sexual assault. Nor was there any evidence that called into question the credibility of this testimony, or suggested that Jean was not tied or bound during the commission of the offense. In his defense, Epps contended only that he was not the perpetrator, but he did not dispute that the elements of the enhancement statute were present. Having found that Epps was the perpetrator, the jury was given no basis to doubt that Jean was tied or bound during the commission of the assault. For these reasons, the trial courts error in failing to instruct the jury on the one strike enhancement was harmless beyond a reasonable doubt.
5. Cumulative Error
Epps argues that all of the complained of errors above, even if they do not individually require reversal, when taken together deprived him of his right to a fair trial and require reversal of the judgment. We have concluded that the denial of the motion to sever was not in error, that the introduction of evidence of Eppss drug use was not prejudicial, and that the failure of the trial court to instruct the jury on the enhancement for tying or binding was harmless beyond a reasonable doubt. Considering these three alleged errors in combination does not change our conclusions.
6. Prior Prison Term Enhancements
The trial court found true an allegation that Epps had served three prior prison terms, and accordingly sentenced him to three years for this enhancement under section 667.5, subdivision (b). Epps contends that the enhancement must be stricken because the prosecution failed to prove that he had not remained free of prison custody or the commission of any felony offenses for the five years prior to his arrest for these offenses. Under section 667.5, subdivision (b), "where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefore, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."
The evidence here was that commencing December 17, 1987, Epps served a three-year prison term; that commencing May 30, 1989, Epps served a two-year prison term; and that commencing April 1, 1992, Epps served a 16-month prison term. Each of these prison terms predate the current offenses, which occurred beginning on June 19, 1998, by more than five years. The Attorney General concedes that imposition of the additional three years for the prior prison terms was error. Therefore, the three-year sentence enhancements must be stricken.
7. Punishment for Assault and Residential Burglary Under Section 654
The trial court imposed an indeterminate sentence of 25 years to life on count II, penetration with a foreign object. For the other counts relating to the Piedmont robbery, the court imposed consecutive terms for the residential robbery (count I), the assault on Jean with the gun (count III), and for the assault on Jean with the bottle (count XVII). Epps argues that the imposition of additional punishment for the two assault counts and for the residential robbery, over and above the sentence on count II, is foreclosed by section 654 because the assaults with the gun and with the bottle and the sexual penetration were all committed with the intent to accomplish the residential robbery. Epps argues that he may be punished only for the count that carries the greatest sentence, in this case count II for penetration with a foreign object.
Section 654, subdivision (a) provides that "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal. Rptr. 607, 357 P.2d 839.) In People v. Latimer (1993) 5 Cal.4th 1203, 858 P.2d 611, the defendant kidnapped his victim, drove her into the desert and raped her. The court held that the kidnapping and the rape could not be punished separately under section 654, reasoning that "Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes." (Id. at p. 1216.) We review the trial courts determination of Eppss objective and intent that support the sentence imposed for substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
Under this analysis, the evidence supports punishment for the residential robbery and the assault with the bottle, in addition to the term for penetration with a foreign object, but not a separate punishment for the assault with the gun. Substantial evidence supports the conclusion that the penetration with the gun, a foreign object, was not committed with the same intent and objective as the residential robbery. Immediately prior to committing the acts on which the penetration count was based, Epps exposed his penis to Jean and said, "Come on, baby, you are going to get this. You are going to get this if you dont get the watch. You must want this." He then spread her legs and pulled down her underwear. Just before "violently and forcefully" penetrating her with the gun, he made several vulgar comments about the appearance of her genitals. When the sexual assault was completed, there is no evidence that Epps made further demands for the watch, though he continued to wander the house in search of other valuable objects. While the initial threat to rape her appears to have been intended to induce Jean to reveal the location of the watch, the evidence supports the inference that the subsequent penetration with the gun was not intended to further the robbery. Epps did not continue to demand the watch when the penetration occurred, nor did he again demand the watch afterwards, in contrast with his earlier continuous demands that she give him the watch. Rather, the assault seemed intended to punish Jean for her failure to produce the watch, since he appears to have given up on persuading Jean to give it to him once this assault occurred.
This conclusion finds support in People v. Alvarado (2001) 87 Cal.App.4th 178. There, the defendant broke into the victims house and demanded money. She gave him $ 10. He demanded more, then pushed her into the bedroom and raped her, then left. The defendant was sentenced for both rape and residential robbery. He argued that the sentence violated section 654. In rejecting this argument, the court stated, "First, as noted, the rape and robbery each had its own unique objective, and neither was merely incidental to or a means toward committing the other. Defendant robbed the victim for money, and he raped her for sexual gratification; conversely, he did not rape the victim to get money or steal her money to rape her. Thus, although the crimes were part of an otherwise indivisible course of conduct they are separately punishable." (People v. Alvarado, supra, at p. 197.)
The evidence likewise supports the conclusion that the assault with the bottle was committed with intent to hurt Jean rather than to obtain the watch. This assault occurred shortly before Epps left the house, and flowed from his anger at not being given the watch, rather than serving as an additional attempt to obtain it. Jean testified, "It was late in the interaction, and he was mad at me that I was not giving him what he wanted, which was the watch. And out of the blue I felt this horrible crash on my head, and I realized he was cracking a bottle over my head. . . . He threatens me. Hes going to light me on fire, and hes going to light the house on fire." The next thing she recalled is that "it finally got quiet, and I think I rested awhile."
In contrast, when Epps hit Jean over the head with the gun, the assault was clearly committed with the intent of obtaining the watch. Jean testified that while she was tied, she verbally guided Epps to her topaz ring, but it did not satisfy him. "He still wanted the watch. . . . He hits me over the head with the butt of the gun; right smack on the top of my head." After he hit her, they "continued to argue about this watch, and I tried to convince him to give up and go away and leave me. He threatened me that he was going to kill me if I didnt produce the watch. He threatened that I would never see my baby if I did not produce the watch. He threatened the lives of my two small boys if I, again, could not produce the watch." This sequence of events reveals that Eppss intent and objective in striking Jean with the gun was to induce her to produce the watch, which was also the goal of the residential robbery. Therefore, the sentence for assault under count III of the information must be stayed. (People v. Latimer, supra, 5 Cal.4th at pp. 1216-1217.)
8. Right to a Jury Determination of Single Intent or Objective Under Section 654
Epps argues that under Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348, he was entitled to have a jury determine beyond a reasonable doubt that under section 654 there was a factual basis to impose additional sentences for the counts related to the Piedmont robbery. In People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022, the court held that " section 654 does not run afoul of the rule announced in Apprendi. The question of whether section 654 operates to "stay" a particular sentence does not involve the determination of any fact that could increase the penalty for a crime beyond the prescribed statutory maximum for the underlying crime. . . . [Citation.] Unlike the "hate crime" provision in Apprendi, section 654 is not a sentencing "enhancement." On the contrary, it is a sentencing "reduction" statute. Section 654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where ones culpability is less than the statutory penalty for ones crimes. Thus, when section 654 is found to apply, it effectively "reduces" the total sentence otherwise authorized by the jurys verdict. The rule of Apprendi, however, applies only where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jurys verdict. " We decline Eppss invitation to treat this holding as "nothing more than a word game." Epps was not denied due process because a jury did not find beyond a reasonable doubt the facts underlying the courts application of section 654.
9. Resentencing on Count I
Finally, Epps contends that we must remand for resentencing on count I. Under count II (penetration with a foreign object), the information alleged four circumstances under section 667.61 (the one strike law). The information alleged aggravated burglary, use of a weapon, infliction of great bodily injury, and tying or binding of the victim. Under this statute, if one of these circumstances is found to be true the defendant becomes eligible for parole in 15 years. If two circumstances are found to be true, the defendant is not eligible for parole for 25 years. The jury found that the aggravated burglary allegation was not true but that the three remaining circumstances were true. The trial court imposed a term of 25 years to life on this count, without indicating on which two of the three sustained circumstances it was relying. The court then imposed two enhancements under count I (residential robbery): ten years for use of a firearm, and three years for infliction of great bodily injury.
Under section 667.61, subdivision (f), only circumstances other than those used to impose a life sentence under the one strike law may be used to support punishment under another enhancement section. Since the trial court must have relied either on the use of a weapon or the infliction of great bodily injury to impose the 25-year-to-life term under count II, it could not have used both of these circumstances to enhance the sentence under count I. The Attorney General concedes that the trial court erred, but suggests that a remand is not necessary to correct the error. Section 667.61, subdivision (f) provides that if only the minimum number of circumstances needed to impose punishment have been proven, those circumstances should be used to apply the one strike law, rather than to impose another enhancement "unless another law provides for a greater penalty." We agree that this language evidences a legislative intent that the greatest punishment permissible be imposed. Since the weapon enhancement is 10 years and the great bodily injury enhancement is only three years, we may assume that in imposing the indeterminate sentence of 25 years to life under count II, the trial court relied upon the allegation of great bodily injury (in addition to tying or binding the victim). Consequently, the 10-year enhancement for use of a weapon under count I may remain, and the three-year enhancement for great bodily injury should be stricken.
III. DISPOSITION
The judgment is vacated and the matter remanded to the trial court to determine in accordance with the views expressed in section II, part (2) of this opinion whether the prosecution exercised its peremptory challenges in a discriminatory manner. In the event that the trial court finds that the prosecution has not overcome the prima facie showing of discrimination, the matter shall be set promptly for a new trial. In the event that the trial court finds that the peremptory challenges were properly exercised, the judgment shall be reinstated with the following modifications: the three one-year enhancements for prior prison terms and the three-year enhancement for great bodily injury shall be stricken, and the one year sentence under count III shall be stayed. In all other respects, the judgment is affirmed.
We concur: Corrigan, Acting P. J., Parrilli, J.