Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F03055
BUTZ, J.Defendant Jason Wilbert Johnson was charged with attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and attempted carjacking (§§ 664, 215, subd. (a)), with special allegations that he intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), personally discharged a firearm (§ 12022.53, subd. (c)), personally used a firearm (§ 12022.53, subd. (b)), and inflicted great bodily injury (§12022.7, subd. (a)) in the commission of the offenses.
Undesignated statutory references are to the Penal Code.
In the first trial, the jury convicted defendant of attempted carjacking and found true two related enhancements but failed to reach a verdict on the attempted murder charge and related enhancement.
On retrial, a different jury found defendant guilty of attempted murder and found the firearm/great bodily injury enhancement to be true.
Sentenced to an aggregate term of 32 years to life in state prison, defendant appeals. He raises constitutional error in the manner of conducting voir dire and in the prosecution’s use of “inconsistent theories” to convict him on retrial. He also claims error in the admission of expert testimony, and ineffective assistance of counsel.
We reject all of these arguments. Except for certain corrections in the abstract of judgment, we shall affirm.
FACTUAL BACKGROUND
In March 2004, 28-year-old real estate agent Zachary Alber owned a 1997 Jaguar XK convertible, to which he had added expensive “spinner” wheels, large rims and low-profile tires, a package that cost him about $6,000.
On the evening of March 20, Alber attended a party at a friend’s house in downtown Sacramento. After the party, he went to a couple of nightclubs, and spent time with friends. At about 2:00 a.m. on March 21, Alber headed toward the Carrows restaurant at 27th and J Streets.
As he approached Carrows, Alber noticed many people and cars gathered around the parking lot of the AM-PM market at J and 29th Streets, so he turned in there, and initiated conversation with the bystanders. During the conversation, some girls who were standing nearby mentioned that someone might want to steal his car.
Alber decided to leave the scene. He had to maneuver his way around the parking lot, because there were so many people standing around. As he was making a “three-point turn,” he noticed a group of men standing behind him, including defendant. Suddenly, he heard a person shouting at him. In his rear-view mirror, he saw defendant holding a gun. He heard two or three shots fired. Alber felt one shot hit the back of his head. The bullet went through his mouth, took off a piece of his tongue and knocked out some teeth. Another shot hit his neck, just under the collar.
With blood gushing from his mouth, Alber exited the car. His right limbs went numb and he collapsed to the ground. He was rushed to the hospital, where he received emergency treatment. He suffered a stroke and was temporarily paralyzed. Medical testimony revealed that Alber sustained a gunshot wound to the back of the neck, which severed a major artery supplying blood to the face. He also sustained injury to the spine, the back of his mouth, his tongue and vocal cords.
Gary Walton, who witnessed the shooting, testified that the gunman took three large, strong steps toward the Jaguar, raised his arm, pointed a gun in the direction of the car and fired at least three shots.
Defense
Defendant admitted that he shot Alber, but claimed it was an accident. He testified that he had consumed two and one-half ecstasy pills and several shots of liquor by the time he arrived at the AM-PM parking lot. When he saw Alber’s Jaguar, he decided to steal it, because he wanted to sell the rims. Defendant retrieved his gun from his friend’s car and walked toward the Jaguar with the .380-caliber semiautomatic pistol in his coat pocket. He pulled out the pistol and told the driver to get out. The driver lurched forward and then backed up. Defendant claimed he tried to jump back to avoid being hit and extended his hands in a defensive motion, when the gun discharged twice.
Additional evidence will be set forth as it becomes relevant to the issues.
DISCUSSION
I. Voir Dire Questionnaire
Two trials were held in this matter involving a young, well-to-do Caucasian male who was shot and maimed in an attempted carjacking by a young man who is African-American. The racially sensitive subject of a poor African-American defendant accused of a crime against a Caucasian victim of well-to-do means caused defense counsel to request a lengthy juror questionnaire in both trials.
At defendant’s first trial, Judge Joseph Orr allowed defense counsel to use a 21-page expanded written questionnaire for jury selection, in lieu of the standard one-page questionnaire normally used.
At the start of the second trial before Judge Rothwell Mason, the prosecutor objected to the use of the expanded questionnaire as unduly time-consuming. Judge Mason agreed, noting that the lengthy questionnaire included many irrelevant questions and that its use would probably add an additional two days to jury selection.
In the words of Judge Mason: “[I] think it’s an unfair burden on a bunch of lay jurors to have them give us their philosophy on jurisprudence, and I don’t think it’s necessary, nor am I convinced a showing has been made of the particularity in this case that requires it. I recognize [defense counsel’s] sensitivity to particularized issues, such as possible racial prejudice. I think we will take care of that copiously in a way other than a 21-page questionnaire . . . . [¶] . . . [¶] . . . I will be open to have you repeat to me particularized areas that you think have not been adequately covered in voir dire, mine or yours, but we’re not going to start off with the assumption that we have to give a 28-page LSAT, essay-type assignment to 50 or 75 jurors to write their political philosophy.”
Voir dire proceeded, using the one-page standard form. In addition, prospective jurors were extensively questioned by the court on such subjects as firearms experience, racial attitudes, and drug and alcohol abuse.
Defendant contends the trial court’s refusal to use the expanded questionnaire at his second trial deprived him of his constitutional right to a fair and impartial jury, due to the fact that this was an emotional, racially charged case and that a prior jury was unable to reach a verdict.
Defendant’s argument is flawed at the outset because there is no constitutional right to a particular manner of selecting a jury. While the right to a fair and impartial jury is guaranteed by the Sixth Amendment (People v. Sanders (1988) 203 Cal.App.3d 1510, 1513), the right to conduct voir dire is not a constitutional right, but rather a means to achieve the end of an impartial jury (People v. Wright (1990) 52 Cal.3d 367, 419; People v. Bittaker (1989) 48 Cal.3d 1046, 1086; United States v. Scarfo (3d Cir. 1988) 850 F.2d 1015, 1021). “[W]hile the right to an impartial jury enjoys constitutional protection, the manner of choosing that jury is not similarly endowed.” (People v. Cardenas (1997) 53 Cal.App.4th 240, 246.) Consequently, “[t]here is no constitutional right to any particular manner of conducting the voir dire and selecting a jury so long as ‘such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries’ are not transgressed.” (Haith v. United States (E.D.Pa. 1964) 231 F.Supp. 495, 498, quoting Pointer v. United States (1894) 151 U.S. 396, 408 [38 L.Ed. 208, 213-214]; see also People v. Boulerice (1992) 5 Cal.App.4th 463, 474 (Boulerice), italics added.)
In the cases cited by defendant, error was found, not because the court failed to employ a particular questionnaire, but because it abused its discretion in the actual conduct of the voir dire. (E.g., People v. Mello (2002) 97 Cal.App.4th 511, 516; People v. Wilborn (1999) 70 Cal.App.4th 339, 347-348.) There is simply no constitutional requirement that the trial court use any specific method to discover juror bias, as long as the voir dire was conducted in a fair and reasonable manner. (People v. Box (2000) 23 Cal.4th 1153, 1180-1181; see also Rosales-Lopez v. United States (1981) 451 U.S. 182, 189 [68 L.Ed.2d 22, 29].)
Lacking a constitutional basis for his contention that the enhanced questionnaire was required, defendant is left with the claim that the trial court abused its discretion in the way the voir dire was actually conducted. No abuse occurred here.
The right to conduct voir dire is controlled by Code of Civil Procedure section 223, as revised by Proposition 115 in 1990. (Boulerice, supra, 5 Cal.App.4th at p. 469 [Boulerice refers to a former version of § 223].) That section “requires the court to examine the prospective jurors, allows the court to permit supplemental examination by the parties or by itself at the behest of the parties on a showing of good cause, and forbids examination of prospective jurors in aid of the exercise of peremptory challenges.” (Ibid.) Further, “[t]he trial court’s exercise of its discretion in the manner in which voir dire is conducted shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution.” (Former Code Civ. Proc., § 223, 3d par., adopted by initiative, Prim. Elec. (June 5, 1990), commonly known as Prop. 115, § 7.)
The voir dire proceedings consume 106 pages of reporter’s transcript. The judge made a sincere effort to ferret out any potential juror whose impartiality might be compromised by racial prejudice. Defense counsel was given a full opportunity to ask his own questions and any follow-up questions. One juror who admitted to feelings of racial bias was excused on the court’s motion. Defense counsel withdrew his Wheeler motion, in light of the fact that “a number” of African-Americans had been selected for the jury.
Under People v. Wheeler (1978) 22 Cal.3d 258, 276-279, a defendant may move for a mistrial on grounds that the prosecutor improperly discriminated on the basis of race, religion, or ethnicity in the exercise of peremptory challenges.
Defendant has failed to present a convincing argument that the voir dire selection process was not fair, impartial and comprehensive. We find no error in the court’s refusal to use defense counsel’s proposed questionnaire or in the manner in which voir dire was conducted in this case.
II. Prosecutor’s Alleged Use of Inconsistent Theories
First Trial
In his opening statement at the first trial, the prosecutor argued that the evidence would show the victim was struck by two bullets. “One of those shots went behind his neck or in the back of his neck and came out, split his tongue and took out a few teeth, ultimately shattering the glass, the windshield of the car. [¶] The other shot, Zack will tell you, went through his--the back of his shoulder area and became lodged right here in the right shoulder.” Consistent with this theory, Alber testified that he was struck by two bullets in the manner the prosecutor described.
However, under cross-examination the prosecution’s medical expert, Dr. John Anderson, stated that based on his review of the record “the best I can tell,” “and I could be missing something,” only one bullet caused Alber’s injuries. On redirect, Dr. Anderson admitted there could have been two gunshot wounds, that he only “glanc[ed] through” the X-rays, and could not recall any definitive reference to a second foreign body.
The defense called William Chisum, a retired Department of Justice criminalist, who examined the crime scene evidence and opined that it appeared Alber was struck by a single bullet that traveled in a slightly rising trajectory. Chisum concluded that the gunman was holding the gun at waist level when it was fired. Defense counsel argued to the jury that Chisum’s testimony demonstrated that defendant did not aim the gun with any kind of accuracy and thus supported his client’s testimony that the gun discharged accidentally.
In his summation at the first trial, the prosecutor refrained from claiming that Alber was struck by two bullets, but maintained vigorously that defendant shot at him twice and did so with the intent to kill. The first trial ended with a hung jury on the murder charge.
Second Trial
At the second trial, the prosecutor called a different medical expert, Dr. Timothy Albertson. Dr. Albertson confirmed that Alber’s medical records revealed two gunshot wounds, one that entered the victim’s neck at the C-2 vertebra and exited his mouth, and another that entered the C-6 vertebra and lodged in his clavicle.
When defense expert Chisum testified, he acknowledged the medical evidence established that the victim had sustained two gunshot wounds, but continued to opine that the trajectory of the shots was at an upward angle, from which he concluded that the gun was probably fired from the waist area.
Defendant now claims that the prosecutor deprived him of due process of law and violated the double jeopardy clause by pursuing “inconsistent and irreconcilable” theories of guilt in the same case.
Defendant preserved his claim for appeal by making a pretrial motion to dismiss at the second trial, claiming the prosecutor’s stated intent to pursue the “two-bullet” theory violated his constitutional rights.
Defendant relies on cases that are inapposite to his fact situation. In People v. Sakarias (2000) 22 Cal.4th 596, the two defendants, Sakarias and Waidla, broke into the victim’s residence and bludgeoned her to death, using a knife and a hatchet. (Id. at p. 609; In re Sakarias (2005) 35 Cal.4th 140, 146.) Each defendant was tried separately. At each trial, the prosecutor argued that the defendant on trial inflicted all three hatchet blows, including the fatal one; he also withheld medical evidence in Sakarias’s trial indicating the victim was already dead by the time the defendant struck her with the hatchet. (In re Sakarias, supra, at pp. 147-148.) The strategy was successful--each defendant was found guilty of first degree murder with special circumstances and sentenced to death. (Id. at p. 144.) The state Supreme Court found this “manipulation of the evidence for the purpose of pursuing inconsistent theories establishe[d] the prosecutor’s bad faith” and violated due process. (Id. at p. 162, second italics added.) The court explained: “[F]undamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained.” (Id. at pp. 155-156.)
The government offered contradictory theories in two separate trials to convict two individuals for the same crime in the case of Smith v. Groose (8th Cir. 2000) 205 F.3d 1045 (Smith) and Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045, reversed and remanded sub nom. Calderon v. Thompson (1998) 523 U.S. 538, 566 [140 L.Ed.2d 728, 753]: The court in Thompson v. Calderon held that “when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” (Thompson v. Calderon, supra, 120 F.3d at p. 1058, italics added.) And the court in Smith declared: “To violate due process, an inconsistency must exist at the core of the prosecutor’s cases against defendants for the same crime. . . . [T]he State’s zeal to obtain multiple murder convictions on diametrically opposed testimony renders Smith’s convictions infirm.” (Smith, supra, 205 F.3d at p. 1052.)
None of these cases assist defendant. The prosecutor did not manipulate evidence or use irreconcilable factual theories to convict two defendants of the same crime. Nor, contrary, to defendant’s vigorous protestations, did he advance a “single gunshot” theory at the first trial and a “dual-gunshot” theory at the second trial. The prosecutor told both juries in his opening statement that Alber was shot twice. He merely refrained from repeating the assertion in closing argument at the first trial, in light of Dr. Anderson’s equivocal testimony regarding the number of gunshot wounds, based on his cursory review of Alber’s medical records.
At the second trial, the prosecutor called a different medical expert who was far more familiar with the medical records and convincingly supported the view that Alber was, in fact, shot twice. The prosecutor consistently maintained that defendant intentionally fired at Alber twice. Rather than switching theories, the prosecutor simply introduced stronger evidence at the second trial that the victim was shot twice.
Defendant offers no authority for the proposition that the evidence on retrial must mirror the evidence at the first trial, or that the introduction of more compelling proof of guilt at the second trial generates a constitutional violation. Just the opposite is true: “‘[T]he Government is not limited at a new trial to the evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence.’” (People v. Raley (1992) 2 Cal.4th 870, 906, quoting United States v. Shotwell Mfg. Co. (1957) 355 U.S. 233, 243 [2 L.Ed.2d 234, 241].) That is exactly what happened here.
Defendant has failed to show a due process or double jeopardy violation based on the evidence introduced at the second trial.
III. Agent Chinn’s Expert Testimony
At the second trial, defense expert William Chisum again testified that in his opinion the trajectory of the shots fired by defendant’s .380-caliber semiautomatic pistol was at an upward angle, indicating that defendant had held the gun about waist level when it discharged.
In rebuttal, the prosecutor called Special Agent Supervisor Ignatius Chinn of the California Department of Justice, Bureau of Firearms. Chinn stated that he had received extensive training and experience in firearms and ballistics. He also had created and conducted test-firing on ballistic gel that was calibrated to simulate the consistency of human flesh. Chinn conducted about a dozen test-firings of different types of guns into the gel, to determine how bullets react when entering human flesh. Chinn testified that after hitting the gel a bullet never follows a straight-line trajectory but rather moves, tumbles and spins once it encounters resistance. He also described two cases with which he had personally been involved that illustrated how a bullet will ricochet and radically change direction when traveling through the human body. Based on these experiences, Chinn opined that when a bullet is fired into the back of a person’s head, there is no predicting the trajectory it will take.
During Agent Chinn’s testimony, the court overruled defense objections that it lacked foundation, that Chinn was not qualified to give an opinion, and that his testimony was unduly prejudicial under Evidence Code section 352.
Defendant claims the trial court should have excluded Agent Chinn’s testimony because it was “irrelevant and without foundation.” He claims that Chinn’s admitted expertise in firearms did not qualify him as an expert in ballistics; that there was no evidence that his observations of bullets traveling through testing gel was relevant to how they react when entering a human body; and that Chinn never used a .380-caliber semiautomatic pistol, the type used in the shooting, in his tests.
“Evidence Code section 720 provides that a person may testify as an expert ‘if he has special knowledge, skill, experience, training, or education sufficient to qualify him,’ (id., subd. (a)) which ‘may be shown by any otherwise admissible evidence, including his own testimony.’ (Id., subd. (b).) The trial court’s determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse.” (People v. Bolin (1998) 18 Cal.4th 297, 321-322; accord, People v. Panah (2005) 35 Cal.4th 395, 478.)
We have little trouble concluding that the trial court did not err in allowing Agent Chinn to give an expert opinion about the trajectory of bullets. Chinn was a supervisor in the firearms division of the Department of Justice, where he had been involved in more than 2,000 firearms’ investigations since the year 2000. From 1991 to 2000, he worked in the San Francisco division of the Department of Justice, where he worked on over 300 cases involving firearms. Before that, he was an Oakland police officer for 21 years. Chinn had experience with a dozen cases involving a .380-caliber semiautomatic pistol, and even used one himself in the course of his law enforcement assignments.
Agent Chinn described the scientific method used for creating and calibrating testing gel that had the same consistency as human flesh, a method that had been used by the U.S. Army. Moreover, his opinion on the behavior of bullets when entering a human body was not based strictly on the gel tests, but also on his own observations and personal experiences.
Finally, Agent Chinn’s testimony was highly relevant to rebut defense expert Chisum’s opinion that defendant was probably holding the gun at waist level when he fired his .380-caliber semiautomatic pistol, an opinion that was based largely on the hypothesis that bullets fired from a handgun will follow a straight-line trajectory.
All of defendant’s complaints about Agent Chinn’s testimony go to its weight, not its admissibility. (People v. Wright (1998) 62 Cal.App.4th 31, 42.) Moreover, “[d]efendant was allowed to cross-examine [Chinn] fully about his qualifications and the manner in which he did the testing, and to present whatever additional evidence he desired.” (People v. Cooper (1991) 53 Cal.3d 771, 814.) No abuse of discretion has been shown.
IV. Ineffective Assistance--Improper Rebuttal
Defendant contends he was deprived of effective assistance of counsel because trial counsel did not object to Agent Chinn’s testimony as improper rebuttal evidence. Defendant reasons that Chinn’s testimony was so crucial to the prosecution’s case that it should have been part of the People’s case-in-chief at the second trial. According to this argument, presenting Chinn’s testimony as rebuttal to the defense expert was a tactic that took the defense by surprise and “created a dramatic effect before the jury that unduly and unfairly emphasized the rebuttal evidence.” Trial counsel was thus assertedly ineffective for failing to lodge a proper objection. The claim has no merit.
Here, the defense attempted to raise a reasonable doubt as to whether defendant intended to kill Alber, by presenting expert testimony that the gun was fired from waist level. Agent Chinn’s testimony was unquestionably proper rebuttal, since it tended to undermine one of the assumptions on which the defense expert based his opinion, i.e., that bullets always follow a straight path.
The decision to admit rebuttal evidence rests within the discretion of the trial court and will not be disturbed on appeal absent a demonstrable abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 335; see § 1093, subd. (d).) Thus, had defense counsel interposed an improper rebuttal objection, we find no reasonable likelihood it would have been successful. Trial counsel cannot be faulted for failing to lodge meritless objections. (See People v. Foster (1993) 14 Cal.App.4th 939, 954-955; People v. McCutcheon (1986) 187 Cal.App.3d 552, 558-559.)
V. Correction of the Abstract of Judgment
The trial court imposed a seven-year term for the attempted murder count, consecutive to a 25-year-to-life term by virtue of the section 12022.53, subdivision (d) enhancement, for a total unstayed term of 32 years to life. The court then imposed consecutive terms of two-and-one-half years for the attempted carjacking, three years for the great bodily injury finding (§ 12022.7, subd. (a)) and 10 years for the firearm use finding (§ 12022.53, subd. (b).) However, the court stayed the sentences on the last three items by virtue of section 654, finding that all of the crimes were part of an indivisible course of conduct with a single objective.
Defendant points out and the People agree that the abstract of judgment fails to reflect that the prison terms for the two enhancements associated with the carjacking conviction were stayed.
The amended abstract erroneously lists the 10-year and three-year enhancements associated with count two (attempted carjacking) as if they were unstayed terms. However, the error goes beyond that: the abstract totals the two enhancement terms associated with count two and adds them to the seven-year term for count one to reach a total determinate term of 20 years. The court’s 25-year-to-life indeterminate sentence is omitted altogether, as are the fines and fees the court imposed pursuant to the recommendation of the probation department.
The amended abstract of judgment must be modified to correctly reflect the court’s oral pronouncement of sentence. (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1116, fn. 6.)
DISPOSITION
The judgment is affirmed. The cause is remanded to the trial court with directions to modify the amended abstract of judgment in a manner consistent with the views stated herein. The clerk shall forward a certified copy of the second amended abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P. J., NICHOLSON, J.