Opinion
2d Crim. No. B201989.
2-19-2009
THE PEOPLE, Plaintiff and Respondent, v. KENNETH ANTHONY FARMER, ANDRE WHITE, AND RODNEY COY STEPHENS, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Kenneth A. Farmer, Defendant and Appellant. W. William Bartz, Jr., under appointment by the Court of Appeal, for Andre White, Defendant and Appellant. Irma Castillo, under appointment by the Court of Appeal, for Rodney C. Stephens, Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Kenneth Anthony Farmer, Andre White, and Rodney Coy Stephens appeal from judgments entered after a jury convicted them first degree residential burglary. (Pen. Code, §§ 459, 460.) Farmer was also convicted of felon in possession of a firearm. (§ 12021, subd. (a)(1).) After the trial court declared a mistrial on two attempted burglary counts, it imposed state prison sentences. On appeal, appellants contend that the trial court erred in denying their Batson/Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 ; People v. Wheeler (1978) 22 Cal.3d 258) and committed instructional and sentencing errors. We affirm.
All statutory references are to the Penal Code.
Farmer admitted two prior strike convictions (§§ 667, subds. (b))-(i); 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and a prior prison term enhancement (§ 667.5, subd. (b)). He was sentenced to 30 years to life.
White was sentenced to the upper term of six years state prison.
Stephens admitted a prior strike conviction (§§ 667, subds. (b))-(i); 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)). He was sentenced to 13 years state prison.
Facts
On May 23, 2005 at about 1:00 p.m., Allison Hamasu was visiting a friend in Torrance when she saw a late model Chevrolet suburban drive by slowly on 186th Street and turn right on Dorman Avenue. Two African-American men were in the front seat. Hamasu could not see if anyone was in the backseat because the windows were tinted. The suburban circled around, drove by slowly and turned right on Dorman a second time.
Hamasu thought it was suspicious, followed in her car, and saw the suburban park on Dorman near 182nd Street. Wearing a baggy white T-shirt and dark plants, Stephens exited the vehicle and walked up to the house at 18213 Dorman. Stephens returned to the Suburban about 15 seconds later and drove up the street.
Hamasu called the police, described what she was seeing, and gave a description of the car and license plate number. Mary Lum, who lived at the Dorman address, told the police that no one rang the door bell. No cars were parked in Lums driveway or in front of her house.
Hamasu saw the suburban turn onto 182nd Street, drive slowly up the block, and park on Manhattan Place. Wearing a long sleeve gray flannel shirt and dark pants, White exited the passenger side and walked up to the house at 17903 Manhattan Place. Chiharu Mukaihata heard a knock at her front door. The man said that he was looking for Lori Jones and left.
Hamasu stayed on the phone and told the police that the suburban was in front of another house on Saint Andrews. The Suburban stopped for a minute, proceeded southbound on Saint Andrews, and turned right on 180th Street where it stopped by a dumpster. No one got in or out of the car. Hamasu then saw the car travel westbound on 180th Street, where it turned on to Van Ness and made another turn.
A little after 1:00 p.m., Torrance Police Lieutenant Devin Chase saw the suburban exit a grocery store alley near Sierra. After the lieutenant radioed for assistance, two officers stopped the Suburban. Farmer was driving and White and Stephens were passengers. Hamasu identified Stephens and White as the men who got out of the suburban and approached the houses on Durman and Manhattan.
Officers searched the suburban and found two loaded handguns in the center console. The back seat area had two screwdrivers, a cotton glove and a sock, a piggy bank filled with money, and a jewelry box and jewelry, and a pillowcase, later identified as Timothy Fowlers property. Jewelry and broken glass were on the floorboard. An Avis rental agreement in the glove compartment indicated that Larenee Neviles had recently rented the suburban. A second rental agreement listed appellant Farmer as an additional driver.
Farmer was arrested and searched. He had black gloves in his waistband and $300 in his pocket. White had a pair of brown gloves in his waistband and dropped a large metal file in the patrol car.
Later that day, Timothy Fowler reported that his house at 2500 Sierra had been burglarized. The burglars broke the kitchen window and took a coin piggy bank, his wifes jewelry and jewelry box, an engagement ring, and a pillowcase. Fowler found the kitchen door and the back alley gate unlocked.
Expert testimony was received that screwdrivers, gloves, socks, and pillowcases are often used to commit residential burglaries. Torrance Police Officer Martin McGee testified that burglars often drive through neighborhoods, look for a house with no cars in the driveway, and knock on the door to determine if anyone is home.
Jury Selection — Wheeler/Batson
Appellants contend that the trial court erroneously denied their Batson/Wheeler motion after the prosecution exercised peremptory challenges to excuse three African-American jurors. "`It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of presumed group bias based on membership in a racial group violates both the state and federal Constitutions. [Citations.]" (People v. Box (2000) 23 Cal.4th 1153, 1187.) If a defendant timely objects and makes a prima facie case of purposeful discrimination, "the burden shifts to the prosecutor to provide a permissible race-neutral explanation for the peremptory challenge." (People v. Zambrano (2007) 41 Cal.4th 1082, 1104.) "`"[I]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the [peremptory challenge] has proved racial discrimination." [Citation.] [Citations.]" (Ibid.)
We review for substantial evidence and "`defer to the courts ability to distinguish "bona fide reasons from sham excuses." [Citation.] As 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.]" (Ibid.)
Juror 0105
Juror 0105, a divorced African-American mother, stated that she was the victim of identity theft three years earlier and that "nothing ever came of it" after she filed a police report. The juror had a niece and two cousins who were murdered and had close relatives that had been arrested for drug use. She also had a nephew who was in jail for breaking and entering with a weapon.
The prosecution excused the juror because the nephews offense was similar to the charges against appellants, "a burglary with guns. I did not want to take the risk of having a juror seated with the same type of crime that her nephew was arrested for."
The trial court found that appellants had not made a prima facie showing of purposeful discrimination and further found that the prosecutors stated reasons for exercising the peremptory challenge were credible and race neutral. It did not err in denying the Batson/Wheeler motion. "[T[he arrest or conviction of a jurors relative provides a legitimate, group-neutral basis for excluding a juror. [Citation.]" (People v. Turner (2001) 90 Cal.App.4th 413, 419.) Where the prosecutors stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. (People v. Allen (2004) 115 Cal.App.4th 542, 548.) Appellants argue that juror 0105, like appellants, was African-American, but that does not establish purposeful discrimination. (People v. Box, supra, 23 Cal.4th at pp. 1188-1189.)
Juror 1614
Juror 1614, an African-American male, had a prior arrest for driving under the influence and a niece who had been arrested for assault. The juror stole a car when he was 15 years old and said that "since then, somebody has stole mine, so I can consider us pretty much even."
The prosecution was concerned about the car theft offense and excused the juror because he was wearing leather gloves on his waistband, similar to the manner White and Farmer were carrying gloves. The prosecutor did not want to ask about the gloves and risk alienating the juror who might think, "I have gloves in my waistband, does that mean Im guilty of the crime?"
The trial court correctly found that the peremptory challenge was exercised for a nondiscriminatory, race-neutral purpose. "The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924.) Here the jurors dress, mannerisms, and prior arrest caused the prosecutor to believe the juror might be sympathetic to the defense. It is settled that a peremptory challenge may be exercised where the jurors responses suggest a pro-defense or pro-prosecution bias. (People v. Wheeler, supra, 22 Cal.3d at p. 275.) "For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle." (Ibid.)
Juror 9203
Juror 9203, a 78 year old African-American woman, was inattentive and had hearing problems. When the clerk called the jurors number, juror 9203 did not respond. The clerk summoned the juror by gender and initials, but no one responded. After the trial court issued a warrant, the clerk discovered the juror was seated in court. Defense counsel commented that the juror has "apparently been sleeping the whole time."
Juror 9203 was asked to sit in the jury box and tried to sit in the wrong chair. The juror appeared disoriented, had not heard everything, and said that she had been diagnosed with a hearing problem but did not want to wear a hearing aid or listening device.
The prosecutor excused the juror because she was not "completely all there" and was concerned the juror would have problems hearing the testimony. The prosecutor explained, "[i]ts not about her race, its about whether she can sit there, listen to the evidence, take it in, and then try to reach a verdict. . . . [W]hy should I risk, on this type of case, that she may not get all the evidence?"
The trial court did not err in finding that the stated reasons for excusing the juror were race-neutral and nondiscriminatory. (People v. Alvarez (1996) 14 Cal.4th 155, 197-198.) The jurors mental distraction and hearing deficit would cause any trial attorney to be concerned about whether the juror could hear all the evidence, deliberate, and make a decision based on the evidence. (See e.g., People v. Turner (1994) 8 Cal.4th 137, 169.) The trial court was not required to conduct further inquiry "where it is satisfied from its observations that any or all of [the stated reasons] are proper. [Citation.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1198.) The court correctly concluded that simply counting the number of excused jurors did not support the finding that peremptory challenges were exercised based on a jurors race or ethnicity. (See People v. Bonilla (2007) 41 Cal.4th 313, 342-345.)
The trial court stated: "Its not a question of her race, its a question of [Juror 9203s] ability to be able to follow the proceedings and to be able to hear them. [¶] . . . [¶] There is also the Catch-22, which is, if you leave this woman on, and the defendants are convicted, . . . then there is an issue as to whether or not she actually was able to hear the evidence against them . . . . Its pretty clear to me this lady is not going to wear a hearing aid. I need to ensure that the defendants receive a fair trial. And Im not confident with this woman on the jury that shes actually going to deliberate and that shes gonna make a decision based on all of the evidence."
CALCRIM 376
Appellants argue that CALCRIM 376, the instruction on possession of recently stolen property, improperly states that only slight corroborative evidence is necessary to support a guilty verdict. The jury was instructed: "If you conclude that the defendant knew he possessed property, and you conclude that the property had in fact been recently stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence was sufficient to prove he committed burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Appellants claim that the "slight" corroborative evidence language in CALCRIM 376 impermissibly reduces the governments burden of proof. A similar argument was rejected in People v. Anderson (2007) 152 Cal.App.4th 919, 950 [discussing CALCRIM 376] and in People v. Snyder (2003) 112 Cal.App.4th 1200 with regard to CALJIC 2.15, the predecessor instruction to CALCRIM 376.
In People v. Snyder, supra, the Court of Appeal held that "CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property, or reduce the prosecutions burden of proof to a lesser standard than beyond a reasonable doubt. Rather, the instruction `relates a contrary proposition: a burglary [or robbery] may not be presumed from mere possession unless the commission of the offense is corroborated. [Citation.] The inference permitted by CALJIC No. 2.15 is permissive, not mandatory. Because a jury may accept or reject a permissive inference `based on its evaluation of the evidence, [it] therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt. [Citation.] Requiring only `slight corroborative evidence in support of a permissive inference, such as that created by possession of stolen property, does not change the prosecutions burden of proving every element of the offense, or otherwise violate the accusers right to due process unless the conclusion suggested is not one that reason or common sense could justify in light of the proven facts before the jury. [Citation.]" (Id., at p. 1226.)
We adopt the same analysis and note that CALJIC 2.15 has withstood numerous constitutional challenges in our state courts. (Ibid.; People v. Yeoman (2003) 31 Cal.4th 93, 130-132; People v. Prieto (2003) 30 Cal.4th 226, 248-249; People v. Holt (1997) 15 Cal.4th 619, 676-677.) The only difference between CALCRIM 376 and CALJIC 2.15 "is that the CALCRIM instruction is easier to understand; it does not alter the underlying law in any way." (People v. ODell (2007) 153 Cal.App.4th 1569, 1575.) Under either instruction, the knowing possession of recently stolen property may be considered as an inference of guilt if there is other corroborating evidence. (Ibid.) The federal cases cited by appellant concern conspiracy instructions (i.e., "slight" evidence necessary to establish participation in a conspiracy), not theft crimes or CALJIC 2.15 or CALCRIM 376. (United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500; United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1255-1256.) Here the jury was instructed to consider CALCRIM 376 in the context of the other instructions which stated that appellants were presumed innocent and that guilt must be proved beyond a reasonable doubt. (CALCRIM 220; see e.g., People v. Smithey (1999) 20 Cal.4th 936, 978; People v. Snyder, supra, 112 Cal.App.4th at p. 1229.)
We reject the argument that CALCRIM 376 "suffocates" the reasonable doubt standard or permits a jury to infer guilt on something less than proof beyond a reasonable doubt. "In our view, [CALCRIM 376] correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecutions burden of proof or implicates a defendants right to due process." (People v. Williams (2000) 79 Cal.App.4th 1157, 1173; see also People v. ODell, supra, 153 Cal.App.4th at p. 1577; People v. Snyder, supra, 112 Cal.App.4th at p. 1226.)
Stephens, however, argues that CALCRIM 376 undermined his defense claim that he was not part of the burglary and, by sheer happenstance, got into the suburban after Farmer and White completed the burglary. The jury was instructed that in order to find Stephens guilty, it had to find that Stephens entered the Fowler residence with the intent to commit a theft or that he aided and abetted the burglary. Stephens attorney argued that the aider and abettor instruction did not apply because "my client wasnt in the car before or during its visitation in the second spot observed by Mrs. Hamasu, Manhattan Place."
The prosecutor argued to the jury: "Counsel argued to you that I have to prove that one of these defendants broke into that home, and that is absolutely incorrect. I do not have to prove to you that any of these defendants broke into that home. I have to prove to you, based on circumstantial evidence, based on the instruction on recently possessing stolen property, that there was stolen property, and that there is supporting evidence, as slight as it may be, that helps you conclude that these three defendants were aiders and abettors. And in this case that supporting evidence [is] the gloves found on Mr. Farmer and Mr. White tucked in their waistband, the screwdrivers, the file that is found . . . after Mr. White is taken out of the [police] car, and Ms. Hamasus observations of the driving pattern and the defendants getting out of the car."
This was a correct statement of the law. The jury was given CALCRIM 401 which stated that "the defendant does not have to actually have been present when the crime was committed to be guilty as an aider and abettor."
The reference to knowing possession of recently stolen property in CALCRIM 376 means knowing dominion and control of particular property. (See e.g., People v. Williams, supra, 79 Cal.App.4th at p. 1171.) It states that "[y]ou may consider how, where, and when the defendant possessed the property . . . ." After the officers stopped the suburban, they found Stephens in the back seat with burglar tools and stolen property. It was strong evidence of guilt.
Stephens complains that CALCRIM 376 permitted the jury to infer that it did not have to decide whether Hamasus identification was reliable. Hamasu saw Stephens get out of the suburban and approach the house on Dorman, and gave the police dispatcher a description on the phone. After Stephens got back into the suburban, Hamasu stayed on the phone and followed the vehicle to Manhattan Place and Saint Andrews. Hamasu did not see Stephens get out when the suburban stopped at Saint Andrews and stopped a second time at the dumpster before driving off.
Hamasu was still talking to the police dispatcher when Lieutenant Chase saw the suburban exit the grocery store alley behind Fowlers residence. The timing and sequence of events clearly indicated there was little or no time to pick up a non-accomplice. One side of the alley was a sound wall (10 to 12 feet high), making it highly unlikely that Stephens scaled the wall or walked up the alley and just happened to be picked up for a ride. When the vehicle was stopped seconds later, Farmer and White still had their gloves and White was carrying a large metal file. The alleged error, if any, in giving an unmodified CALCRIM 376 instruction did not undermine Stephens defense nor is it reasonably likely that the jury would have reached a different result had the trial court limited the permissive inference described in CALCRIM 376. (See e.g., People v. Prieto, supra, 30 Cal.4th at p. 249; People v., Mendoza, supra, 24 Cal.4th at pp. 176-177: People v. Snyder, supra, 112 Cal.App.4th at p. 1229.)
Farmer: Unlawful Possession of a Firearm
Farmer contends that the conviction for felon in possession of a firearm (count 4) is not supported the evidence. During the felony stop, two loaded handguns were found in the center counsel. Farmer argues there is no direct evidence that he knowingly possessed a firearm but there was strong circumstantial evidence to support the conviction. (People v. Williams (1971) 5 Cal.3d 211, 215.)
Actual possession of a firearm for even a limited time is sufficient to convict. (E.g., People v. Vandenburg (1963) 214 Cal.App.2d 455, 460.) Possession may be imputed where the firearm is found in a place immediately and exclusively accessible to the accused and subject to his dominion and control or to the joint dominion and control of the accused and another. (People v. Williams, supra, 5 Cal.3d at p. 215.) A defendant does not avoid conviction if his dominion and control of the place where the firearm is located is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 622; People v. Alderrou (1987) 191 Cal.App.3d 1074, 1082.)
The jury received CALCRIM 2511 (unlawful possession of firearm) which stated that "Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it/or the right to control it, either personally or through another person."
Here the Avis car rental agreement listed Farmer as an additional driver and Farmer was driving the Suburban when it was stopped. The handguns were in the center console, clearly within Farmers immediate reach and control. (See People v. Low (1983) 148 Cal.App.3d 89,92 [loaded handgun under drivers seat sufficient to show knowledge and control].) Based on the proximity and availability of the handguns, the jury could reasonably infer that Farmer knowingly possessed the firearms. (Ibid.; People v. Harrison (1969) 1 Cal.App.3d 115, 119; People v. Gant (1968) 264 Cal.App.2d 420, 424.)
White — Upper Term Sentence
White argues that the trial court erred in imposing an upper term sentence for first degree residential burglary based upon facts neither admitted nor found true by the jury. (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 870] (Cunningham).) The trial court found that Whites prior adjudications as a juvenile were numerous, involved very serious offenses, and supported an upper term sentence.
Whites juvenile record includes convictions for attempting to operate a vehicle without the owners consent, taking a vehicle without the owners consent, robbery, and murder. He also had prior arrests for theft, grand theft, and multiple incidents of receiving stolen property.
Appellants reliance on Cunningham is misplaced because appellant was sentenced after the March 30, 2007 amendment of section 1170, subdivision (b) which provides that a sentencing court may consider the full range of sentences. (Sen. Bill No. 40 (2007 Reg.Sess.) ch. 3, § 2, effective March 30, 2007.) Under the statutory amendment, additional fact finding by the trial court is not required to impose an upper term because the upper term is the statutory maximum within the meaning of Cunningham. (People v. Sandoval (2007) 41 Cal.4th 825, 846-847.) The trial court may consider the defendants criminal record in imposing an upper term sentence, as was done here. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
White argues that his juvenile record may not be considered for sentencing purposes because there is no right to jury trial in a juvenile proceeding. The cases cited by White are currently pending before the California Supreme Court and address whether a prior juvenile adjudication qualifies as a strike under the Three Strikes Law. (E.g., People v. Grayson (2007) 155 Cal.App.4th 1059, reviewed granted Dec. 19, 2007, S157952; People v. Tu (2007) 154 Cal.App.4th 735, review granted Dec. 12, 2007, S1156995; People v. Nguyen (2007) 152 Cal.App.4th 1205, reviewed granted Oct. 10, 2007, S158847.) White, however, was not sentenced as a Three Strikes offender. Nor did the trial court err in finding that Whites juvenile record, which included sustained petitions for robbery and murder, rendered White eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799, 818; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394.)
Appellants remaining arguments have been considered and merit no further discussion.
The judgments are affirmed.
We concur:
GILBERT, P.J.
COFFEE, J.