Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD207972 Howard H. Shore, Judge.
NARES, J.
During jury selection in this possession and sale of narcotics case, the prosecutor peremptorily excused the only African-American person on the prospective jury panel, and the court denied an oral Batson-Wheeler motion for dismissal made by defendant Albert Hill III. After the People rested, Hill unsuccessfully brought a motion under Penal Code section 1118.1 for judgment of acquittal as to counts 3 and 4 (discussed, post), which pertained to the second of two alleged drug transactions, claiming there was only one drug transaction and only one possession of cocaine base. The jury later found Hill guilty of two counts of selling cocaine base (counts 1 & 3: Health & Saf. Code, § 11352, subd. (a)) and two counts of possessing cocaine base for sale (counts 2 & 4: Health & Saf. Code, § 11351.5). Following a bench trial, the court found true allegations that Hill (1) had four probation denial priors (§ 1203, subd. (e)(4)); (2) had two prison priors (§ 667.5, subd. (b)); and (3) had four strike priors (§§ 667, subds. (b)-(i), 1170.12).
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler).
All further statutory references are to the Penal Code unless otherwise specified.
Section 1118.1 provides: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right."
After striking three of the strike prior allegations, the court sentenced Hill to a total prison term of 12 years, consisting of the upper term of five years as to count 1, doubled to 10 years; plus one consecutive one-year term for each of the two prison priors. As to each of the remaining counts (counts 2-4), the court imposed the upper term of five years, doubled to 10 years; ordered the 10-year term on count 3 to run concurrently with the 10-year term imposed on count 1; and stayed execution of the 10-year terms on counts 2 and 4 under section 654.
The original minute order of the sentencing hearing on December 20, 2007, in this matter incorrectly noted that the court had stricken only two of Hill's strike priors. On October 23, 2008, that order was amended to correctly reflect that three strike priors had been stricken. Hill's request for judicial notice of the amended order by this court was granted on March 25, 2009.
Hill appeals, contending (1) the court committed reversible error under the state and federal Constitutions when it denied his Batson-Wheeler motion on the ground he had failed to meet his initial burden of making a prima facie case showing an inference of discriminatory purpose; and (2) the court erred when it denied his motion for judgment of acquittal as to counts 3 and 4 under section 1118.1. We conclude the court did not err in denying Hill's motions. Accordingly, we affirm.
FACTUAL BACKGROUND
A. The People's Case
At around 6:00 p.m. on July 25, 2007, at the corner of 13th Avenue and Island in the City of San Diego, Hill sold a $20 piece of rock cocaine to San Diego Police Officer Michael Day, who was straddling a bicycle and working undercover with a "buy-bust" narcotics team. When Officer Day asked for a "20," which is street slang for $20 worth of rock cocaine, Hill told Officer Day to "wait right here." Hill walked northbound about 15 to 20 feet on the same sidewalk, with his back to Officer Day. Hill reached down into his jeans under his boxer shorts and pulled out a clear plastic baggie from the area of his buttocks. Hill then turned around and walked back to Officer Day, who gave him a prerecorded $20 bill in exchange for an off-white substance the officer recognized as rock cocaine.
After that exchange, noticing the baggie contained several other pieces of rock cocaine, Officer Day asked Hill whether he could also buy a "dime," which means $10 worth of rock cocaine. Hill told Officer Day he does not sell dimes. Believing the drug transaction was completed, Officer Day gave a prearranged "bust" signal to other members of the undercover team by means of a one-way transmitter he was wearing.
Immediately thereafter, as Officer Day was preparing to peddle away on his bicycle, Hill said, "Hold up, here's a dime for you," and handed Officer Day $10 worth of cocaine. As Officer Day was getting out his money for the second purchase at the same location, Hill was facing Officer Day with his (Hill's) back toward the approaching patrol car of the other narcotics team officers. Officer Day gave Hill a prerecorded $10 bill after Hill gave him the $10 worth of cocaine.
The two transactions took place during a period of less than a minute and a half. Hill tried to run away when he saw the patrol car, and he was arrested about 30 seconds after the second transaction was completed. The prerecorded $20 bill was recovered from Hill's front left pants pocket. Another officer found the prerecorded $10 bill on the ground near where Hill had run.
A police criminologist testified the two rocks of cocaine that Officer Day purchased weighed 0.21 grams and 0.11 grams, respectively, and both were usable amounts.
B. The Defense
Hill did not present any evidence in his defense.
DISCUSSION
1. DENIAL OF HILL'S BATSON-WHEELER MOTION
Hill first contends the court committed reversible error under the state and federal Constitutions when it denied his Batson-Wheeler motion after finding he had failed to make a prima facie case. We reject this contention.
A. Background
Hill is African-American. During jury selection, the prosecutor exercised a peremptory challenge to excuse the only African-American on the prospective jury panel. Before the prosecutor exercised that challenge, the court asked The juror whether she, any of her friends, or any members of her family had been arrested for, charged with, or convicted of a crime. She replied that her mother had been convicted of theft four years previous. She answered, "No," when the court asked whether she had been told anything that caused her to believe her mother had been treated unfairly or anything about her mother's treatment that would influence her in this case.
Later, the prosecutor asked the juror whether her mother's conviction occurred in San Diego County, and she replied, "Yes." She believed her mother was prosecuted by the district attorney's office. She indicated there was no jury trial, but she attended one of the proceedings in El Cajon. She indicated her grandfather had been the victim of a car theft in San Diego, discussed her employment at a telecommunications firm, and stated she had friends in the legal profession. The juror also stated she did not live with her mother when her mother was prosecuted and indicated she felt her mother had been treated fairly by the district attorney's office and the criminal justice system. Indicating that he worked for the district attorney's office, the prosecutor asked the juror whether she was "going to hold that case against [him] in any way." She responded, "Oh, no." Passing for cause, the prosecutor then exercised the People's seventh peremptory challenge and thanked and excused the juror.
1. Batson-Wheeler motion
Outside the presence of the jury, Hill's counsel orally made a Batson-Wheeler motion for dismissal, stating the prosecutor "excluded the only African-American juror in the panel... and I can't find any good cause for him excluding her." Defense counsel argued that the juror was excused "because of her race only, and there was no... good cause for her to be excused by the prosecutor." Defense counsel also argued that the juror was gainfully employed, she indicated her grandfather had been the victim of theft, and those matters would not be grounds for her to be excluded from the jury.
The court denied Hill's Batson-Wheeler motion, finding the defense had failed to make the requisite prima facie showing. The court stated, "I can't make a finding that there's been a prima facie showing simply because [the juror]... was the only African-American in this prospective panel."
B. Applicable Legal Principles
The use of peremptory challenges to excuse prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 89.) If a party believes his or her opponent is using peremptory challenges to excuse jurors in violation of Batson and Wheeler, the point must be raised in a timely fashion and a prima facie case of discrimination made to the satisfaction of the court. After making as complete a record of the circumstances as possible and showing the excused juror is a member of a cognizable group, the movant must show " 'the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " (Johnson v. California (2005) 545 U.S. 162, 168.)
Once a prima facie showing has been made, the burden shifts to the prosecutor to show the peremptory challenges were not based on group bias alone. (Wheeler, supra, 22 Cal.3d at p. 281.) The prosecutor must satisfy the court that he or she exercised the peremptory challenge on grounds that were "reasonably relevant to the particular case on trial or its parties or witnesses." (Id. at p. 282.)
The California Supreme Court has explained that "[t]he proper focus of a Batson/Wheeler inquiry... is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge." (People v. Reynoso (2003) 31 Cal.4th 903, 924.) "All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory." (Ibid.)
The prosecutor's explanation need not rise to a level that justifies the exercise of a challenge for cause. (People v. Williams (1997) 16 Cal.4th 635, 664.) "[A]dequate justification by the prosecutor may be no more than a 'hunch' about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as 'a mask for race prejudice' [citation]." (Ibid.)
When a trial court denies a Wheeler motion based on its finding that no prima facie case of group bias was established, the reviewing court considers the record of the voir dire and affirms the ruling if it is supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 993.) The reviewing court "accord[s] particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand." (Id. at pp. 993-994.) Moreover, we presume that a prosecutor uses his or her peremptory challenges in a constitutional manner. (People v. Ayala (2000) 24 Cal.4th 243, 260.)
C. Analysis
After reviewing the record of the voir dire and applying the deferential substantial evidence standard of review, we conclude substantial evidence supports the court's finding that the defense failed to meet its burden of making a prima facie showing that the prosecutor exercised a peremptory challenge to excuse the juror solely on the basis of a presumed group bias based on the fact that she, like Hill, is African-American. The juror's responses to voir dire questions by the court and the prosecutor indicated that the San Diego County District Attorney's Office had prosecuted her mother four years earlier, resulting in her mother's conviction for theft, and that the juror had attended one of the proceedings. Although she indicated she believed her mother had been treated fairly and reassured the prosecutor she would not in any way hold the prosecution of her mother against him in this case, the prosecutor was not required to accept her reassurances. (See, e.g., State v. Hodge (1999) 248 Conn. 207, 231 [726 A.2d 531, 546] ["Courts consistently have upheld the use of peremptory challenges to excuse a venireperson with a close relative who has been prosecuted because of the real possibility that the venireperson may harbor resentment against prosecuting authorities generally"].) "[A] prosecutor is not bound to accept the venireperson's reassurances, but, rather, is entitled to rely on his or her own experience, judgment and intuition in such matters." (Ibid.)
Here, the fact that the same prosecuting agency that had successfully prosecuted the juror's mother was prosecuting the current case provided a legitimate race-neutral basis for the prosecutor to subjectively doubt the juror's ability to impartially decide Hill's guilt or innocence. Because this court had no opportunity to observe her during the jury selection process, we must defer to the trial court as fact finder. (People v. Jenkins, supra, 22 Cal.4th at pp. 993-994.)
II. DENIAL OF HILL'S SECTION 1118.1 MOTION
Hill also contends the court erred when it denied his section 1118.1 motion for judgment of acquittal as to counts 3 and 4 because there was only one continuous course of conduct between the same parties, at the same time and place, involving the same plastic baggie containing drugs. We reject this contention.
A. Background
After the People rested, Hill's counsel moved under section 1118.1 for acquittal as to both the second sale offense charged in count 3 and the related possession for sale offense charged in count 4. Defense counsel stated, "it's my position that there's just one single transaction involving both purported sales and, therefore, counts 3 and 4 should fail." The court denied the motion, stating, "I don't think [section] 1118.1 is the right statute because the focus for me there is to decide if there's sufficient evidence to support a conviction. I think what you're talking about is a [section] 654 issue[,... which I think is a sentencing issue if [Hill] were found guilty."
Section 654 bars double punishment for multiple offenses that constitute one indivisible transaction or course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.) Subdivision (a) of that section provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
B. Standard of Review
In People v. Cole (2004) 33 Cal.4th 1158, 1212-1213, the California Supreme Court explained that "[i]n ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, '"whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." [Citations.]' [Citation.]"
On appeal, we independently review the trial court's ruling under section 1118.1 that the evidence is sufficient to support a conviction. (People v. Cole, supra, 33 Cal.4th at p. 1213.) "We also independently determine whether the evidence is sufficient under the federal and state constitutional due process clauses." (Ibid.)
C. Analysis
After reviewing the trial record, we conclude substantial evidence showed Hill committed the separate offenses charged in counts 3 and 4, and thus the court properly denied his section 1118.1 motion for acquittal as to those counts. Officer Day testified that after he asked Hill for $20 worth of rock cocaine, Hill reached into his boxer shorts, pulled out a clear plastic baggie, and gave a piece of rock cocaine to Officer Day in exchange for a $20 bill. Officer Day then asked Hill whether he could buy a dime of rock cocaine. When Hill replied he did not sell dimes, Officer Day gave a prearranged signal to other members of the undercover team to arrest Hill. As Officer Day was preparing to peddle away on his bicycle, Hill said, "Hold up, here's a dime for you," and handed Officer Day $10 worth of cocaine. Officer Day took the cocaine and gave Hill a prerecorded $10 bill.
The foregoing evidence shows the first drug transaction was completed when Hill initially refused Officer Day's offer to purchase another piece of rock cocaine, and Hill gave the "bust" signal and prepared to ride away on his bicycle. This first drug transaction was the factual basis for counts 1 and 2. Officer Day's testimony shows that a second and separate drug transaction occurred when Hill sold a smaller piece of cocaine base to Officer Day in exchange for $10. This second transaction was the factual basis for counts 3 and 4, which were the subject of Hill's section 1118.1 motion for acquittal. When Hill made his motion, substantial evidence showed that two drug transactions had been completed. For purposes of Hill's motion, it was immaterial that the transactions were close in time and that the two pieces of rock cocaine came from the same plastic baggie in Hill's possession. Because substantial evidence shows two drug transactions occurred, the court properly concluded the evidence showed two violations of Health and Safety Code section 11352, subdivision (a), and two violations of Health and Safety Code section 11351.5. The court did not err.
We note that during sentencing, the court stayed under section 654 execution of the 10-year terms it imposed on counts 2 and 4.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.