Opinion
C042274
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. TRACY ANTHONY JOHNSON, Defendant and Appellant.
A jury convicted Tracy Anthony Johnson of second degree murder and corporal injury on a cohabitant, and found that he personally used a dangerous weapon in committing the murder. Finding that defendant had a prior conviction for domestic violence, had served two prior prison terms, and had four prior serious or violent felony strike convictions within the meaning of the "three strikes law," the trial court sentenced him to an aggregate prison term of 63 years to life.
On appeal, defendant raises various claims of error. We shall reverse the judgment and remand the matter to the trial court for the limited purpose of holding a new hearing regarding the prosecutors peremptory challenge to prospective juror J.W.
FACTS
Late on the night of August 17, 1999, or early the next morning, defendant stabbed his girlfriend, Sharon Yates, 11 times. One of the stabbings severed her carotid artery and killed her.
At 5:30 a.m., defendant flagged down a police officer in downtown Sacramento and asked him to "[c]all somebody from homicide" because defendant "wanted to turn himself in." When the homicide investigator arrived, defendant told him to send officers to his apartment, where they would find a dead body. There, the officers discovered Yatess body on a blood-soaked bed with a pillow over her face. In addition to multiple stab wounds to her neck, Yates had defensive wounds on her elbow and right hand. A knife blade was by her foot, and a knife handle was on the floor by the bed. Defendants fingerprints were on both the knife blade and the handle.
Yatess sister, Shawnetta, who had been living with Yates and defendant, testified that a week or two prior to the killing, defendant threatened to do something crazy. The last time that Shawnetta saw Yates alive was around 10:30 p.m. on August 17, 1999. Before Shawnetta went to sleep, she heard Yates say to defendant that he was "trippin." Shawnetta did not hear any yelling, screaming, or loud noises of any sort that night. She awakened the next morning to the sound of the police knocking on her door around 6:00 a.m.
Yates had four sisters, Sheila, Shirley, Shawn, and Shawnetta. For simplicity and to avoid confusion, we will refer to them by their first names.
Shawnettas boyfriend, Donald Lipscomb, went to the apartment around 11:15 or 11:30 p.m. on the night of August 17. Defendant answered the door, wearing only a pair of pants and sweating profusely. Lipscomb asked, "Whats up?" Replying "I am just taking care of my business," defendant walked to the bedroom and shut the door. Lipscomb, who did not hear any noises coming from the bedroom, changed his clothes and left the apartment. According to Lipscomb, defendant had told him earlier in the day that the next person with whom defendant had a confrontation, "he was going to do something real bad to them" and "it wasnt going to be nice."
Three law enforcement officers testified concerning statements they had taken from Yates about defendants prior physical abuse.
On March 6, 1996, Yates reported to police that after she had told defendant she wanted to end their relationship, he punched her, kicked her, and threatened to kill her. Defendant was arrested about a week later, but was then released when Yates recanted her prior statement.
On December 28, 1996, defendant reported a residential burglary, claiming he came home and found that his girlfriends clothing, some furniture, and a mattress had been cut. According to defendant, his girlfriend, Yates, was missing, along with items of clothing and a typewriter. Later that day, Yates telephoned the police, said she was not a missing person, and stated she had left the apartment in fear after having a "huge fight" with defendant, during which he threatened to kill her and also slashed the furniture because he was angry with her.
On June 16, 1998, Yates reported to the police that defendant had assaulted her the night before, and that she was afraid he was going to kill her. Defendant had accused her of cheating on him and had made a threatening gesture with a necktie, indicating he was going to strangle her. Later that night, he dragged her to the bedroom, pinned her down on the bed by her neck, and said he would "fuck her up." He wrapped a belt around her neck, but she managed to insert a finger inside the belt, which allowed her to breathe until the belt eventually broke.
Yatess sisters, Sheila and Shawn, testified that in 1998, they saw Yates with bruises on her neck that were consistent with being choked with a belt. During that same year, they witnessed an incident in which defendant physically assaulted Yates. When the three sisters returned later than expected from an excursion in a car that defendant had rented, defendant argued with Yates. He broke the drivers side window of the car and punched Yates in the mouth, causing her tooth to pierce her lip.
Sheila and Shawn testified that defendant often threatened to kill Yates. Sheila urged Yates to leave him because there was too much violence in the relationship. Two weeks prior to the murder, Yates told Shawn that she was going to break up with defendant.
On August 16, shortly before Yates was murdered, Yates and defendant attended a family birthday party. There, the sisters reminisced about their mother and mentioned that she had been stabbed in the jugular vein and killed by Shawnettas father.
On August 17, defendant was in a rage and looking for Yates. Sheila heard him say, in reference to Yates, that he was "sick of this B[itch]."
Defense
Defendant did not dispute killing Yates; he simply attempted to establish that he did so in a heat of passion, or in self-defense, or while he was in a dissociative state. He conceded that his relationship with Yates had been marred by domestic violence, but intimated that the degree of violence had been exaggerated by the prosecution. Defendant claimed the car rental incident referred to by Sheila and Shawn had occurred in 1996, not 1998, and since that time his relationship with Yates had been good up until the incident in June 1998.
At the sentencing hearing, however, defendant made the following statement to one of Yatess sisters: "Sheila, personally, I wouldnt give a fuck what you feel. You want to participate in lies and deception and manipulations, that if anybody would have been — I wish your bitch ass would have been there — because you would have got what she got."
With respect to the incident in June 1998, defendant denied choking Yates with a belt or threatening to kill her. He claimed that he just slapped her in the face because she took his car and left him with her children without asking him for use of the car. According to defendant, the only reason that he entered a plea of guilty to a misdemeanor for this incident was because he had been arrested for felony spousal abuse, he had multiple prior convictions for robbery, and he wanted to avoid a possible "three strikes" life sentence.
A victim advocate for the district attorneys office testified Yates told her that defendant had not used the belt to choke her, only to get her attention. In addition, a neighbor who socialized with defendant and Yates testified they appeared to be a reasonably happy couple and she was not aware of any verbal or physical violence between them.
Defendant testified as follows. He denied telling Lipscomb that defendant was going to hurt anyone on August 17, 1999; he just said he would not tolerate the kind of condescending and patronizing treatment he had been receiving from someone at work. When defendant had arrived home around 11:30 p.m., he sat and talked with Yates for a while. He was not sweating profusely when Lipscomb arrived, and he did not mean anything by his comment about "handling [his] business." After he let Lipscomb in, defendant returned to the bedroom, and his conversation with Yates turned to their relationship. When the discussion became heated, she slapped his face. Because of anger management training he received in connection with his domestic violence conviction, defendant remained calm, but Yatess words became more mean-spirited and venomous. She called him a "bastard," which she knew was especially galling to defendant because his mother conceived him from a rape. She leaned forward and grabbed him, and he grabbed her back and attempted to push her onto the bed. When Yates then picked up a knife, defendant spontaneously grabbed the blade and a struggle ensued. Although defendant had no memory of stabbing Yates and placing a pillow over her face, he believed that he had stabbed and killed her. According to defendant, "I didnt mean to kill her." The next thing defendant remembered was driving around. He believed that he went to a friends house. Defendant was in a daze and drove back to his apartment. When defendant saw Yates lying on the bed, he tried to go to the sheriffs department and a police station but both were locked. He waived down a police officer because he knew that law enforcement would want to talk to him, even though he did not know he had killed Yates.
Dr. Rob Woodman, a psychologist, testified that dissociative disorder is a partial or full inability to remember overwhelming or traumatic events. Presented with a hypothetical based on the facts of the case, Woodman opined the hypothetical was consistent with a dissociative state. However, because Woodman had not examined defendant, he did not know if defendant actually had experienced a dissociative state or whether he was lying.
Rebuttal
The detective who interviewed defendant for four hours on August 18, testified defendant never acknowledged that he used a knife during the assault. Neither the detective nor another officer observed any injuries or cuts to the palm of defendants hands, which one would have expected if defendant had grabbed the knife blade.
Summation and Verdict
During closing argument, defense counsel conceded there was no question that defendant killed Yates; the issue was whether the killing was murder or manslaughter.
By returning a verdict of second degree murder, the jury rejected the prosecutions theory of premeditated first degree murder and implicitly rejected defendants theory of voluntary manslaughter.
DISCUSSION
I
Defendant contends the trial court erred in denying his Wheeler/Batson motion, in which he claimed that the prosecutor had impermissibly excluded two African-Americans from the jury. (People v. Wheeler (1978) 22 Cal.3d 258 (hereafter Wheeler);Batson v. Kentucky (1986) 476 U.S. 79 (hereafter Batson).)
A
A defendants right to a trial by a jury composed of a representative cross-section of the community is violated when the prosecutor uses peremptory challenges to remove prospective jurors based on their race. (Wheeler, supra, 22 Cal.3d at p. 277; Batson, supra, 476 U.S. at p. 89 [90 L.Ed.2d at pp. 82-83].) If the defendant believes the prosecutor is impermissibly excluding prospective jurors on the basis of race, the defendant must raise the point in a timely fashion and establish a prima facie case by (1) making as complete a record of the circumstances as is feasible; (2) establishing that the persons excluded are members of that race; and (3) demonstrating a reasonable inference that they were challenged because of their race. (Johnson v. California (2005) 545 U.S. 162, ___ [162 L.Ed.2d 129, 138]; People v. Boyette (2002) 29 Cal.4th 381, 421-422].)
If the trial court concludes that the defendant has not established a prima facie case of error, we examine the entire record of voir dire to determine if it contains evidence that supports the courts decision; and the courts ruling will be affirmed if the record suggests grounds upon which the prosecutor might reasonably have challenged the prospective jurors in question. (People v. Johnson (2003) 30 Cal.4th 1302, 1324-1325; People v. Howard (1992) 1 Cal.4th 1132, 1155.)
If the court determines that the defendant has established a prima facie case of error, the burden shifts to the prosecution to provide a neutral explanation for the peremptory challenges. (People v. McDermott (2002) 28 Cal.4th 946, 970.)
The grounds specified by the prosecution need not support a challenge for cause. The grounds need only be genuine, reasonably specific, and race or group neutral; even trivial reasons may suffice. (People v. Arias (1996) 13 Cal.4th 92, 136.) Exclusion of prospective jurors based upon hunches and other arbitrary reasons is permissible, as long as the reasons are not based upon improper group bias. (People v. Reynoso (2003) 31 Cal.4th 903, 924; People v. Turner (1994) 8 Cal.4th 137, 164-165, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
If the prosecutor tenders neutral reasons, the trial court must decide whether the defendant has proved purposeful discrimination. The court must make a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case then known, the courts knowledge of trial techniques, and its observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. (People v. Hall (1983) 35 Cal.3d 161, 167-168.) "[T]he trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutors exercise of the particular peremptory challenge." (People v. Fuentes (1991) 54 Cal.3d 707, 720.)
"Furthermore, every questioned peremptory challenge must be justified: `If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted and the court must dismiss the venire and begin jury selection anew. [Citation.]" (People v. Fuentes, supra, 54 Cal.3d at p. 715; accord, People v. Reynoso, supra, 31 Cal.4th at p. 915.) This is so because "`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. [Citations.]" (People v. Fuentes, supra, 54 Cal.3d at p. 715.)
The trial courts ruling on whether the prosecutor has established the absence of purposeful discrimination will be upheld if it is supported by substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 196-197; People v. Howard, supra, 1 Cal.4th at p. 1155.) However, "we apply this deferential standard of review only when `the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.]" (People v. McDermott, supra, 28 Cal.4th at p. 971.)
B
Here, defense counsel made a Wheeler/Batson motion after the prosecutor exercised peremptory challenges against prospective jurors J.W. and E.T., two African-American men on the panel.
When defense counsel began to explain why he believed there was a likelihood those prospective jurors were excluded because of their "group status," the trial court interrupted, stating: "I will save you some time. [¶] On the face, you have made a prima facie challenge, and my understanding is the burden is now on the prosecutor to offer some articulatable [sic] reason, if he can, as to why you have excused those two jurors, other than for their racial or ethnic characteristic."
The prosecutor disputed that defendant had shown a prima facie case of discrimination, pointing out there were two African-American women in the jury box. Nonetheless, the court reiterated its finding that a prima facie case had been made and asked the prosecutor: "Why did you excuse [E.T.]?" The court did not, either at this time or later, ask the prosecutor to comment on his challenge to J.W.
Noting that, in the juror questionnaire, E.T. stated he did not want to be a juror and that E.T. was the only prospective juror in the jury box who had answered in this manner, the prosecutor pointed out that during voir dire, E.T. indicated he was willing to go into his savings to meet his financial obligations in order to serve on the jury. These "conflicting" responses and E.T.s "body language" made the prosecutor "feel uncomfortable with having him as [a] juror in this case."
Without asking the prosecutor why he excused J.W., the court denied the Wheeler/Batson motion, finding that there was no "pattern" of discrimination and that race-neutral reasons existed to exclude J.W. and E.T. The court explained:
"I will find that as to [J.W.], that his responses . . . about his litigation with his employer, . . . his brothers prior criminal history and the like, and his description of the . . . negative encounter with law enforcement related to a traffic stop, appear on the face to be adequate reasons to dismiss him from jury service."
"With respect to [E.T.], I had not noticed that . . . hes the only one that indicated on his questionnaire he did not wish to be here." Although E.T. "did offer some information on the record conflicting to that," "in light of [his] written response that he did not wish to be here, that is, he apparently being the only juror to so note in his jury survey, I think that that in itself causes a litigant, the People or otherwise, to be suspect of [his] commitment to serve on a jury."
C
Defendant contends that although the trial court found the prosecutors stated reason for excluding E.T. was objectively valid, the court neglected to make the requisite assessment of the prosecutors subjective good faith, i.e., that the reason stated by the prosecutor actually motivated the peremptory challenge and was not simply a sham excuse contrived to avoid admitting an act of discrimination. (People v. Reynoso, supra, 31 Cal.4th at p. 924 ["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"].)
In defendants view, the record indicates that the trial court did not understand its duty to determine the subjective genuineness of the prosecutors reason for challenging prospective juror E.T. To support this suggestion, defendant notes the court characterized as objectively articulable the "adequate reasons" that the court had earlier identified for the challenge to J.W.
However, with respect to the prosecutors challenge to E.T., the trial court examined the reasons given by the prosecutor and found they were sufficient to cause a litigant, including the prosecutor, to suspect E.T.s commitment to serve on the jury. This demonstrates that the court found the prosecutors reasons for challenging E.T. were both genuine and legally sufficient. There was no error in this regard.
D
Defendant also contends that once the trial court found there was a prima facie case of discrimination, i.e., defendant raised a reasonable inference that the prosecutor challenged prospective jurors based on their race, then (1) the court should have required the prosecutor to state his reasons for his peremptory challenges to both African-American prospective jurors, not just E.T., and (2) by failing to do so, the court impermissibly substituted its own reasons why it thought that the challenge to J.W. was justified, without deciding whether those reasons actually and genuinely motivated the prosecutors peremptory challenge. In defendants view, the error entitles him to a new trial.
The People counter that reversal is not required because the record shows the trial court found that defense counsel had made a prima facie showing of discrimination only as to E.T. Therefore, the People suggest, it was unnecessary for the court to elicit the prosecutors explanation for challenging J.W.
Here, there were very obvious non-race-based reasons for the prosecutors peremptory challenge to J.W. On his questionnaire and during voir dire, J.W. revealed that two of his brothers had been prosecuted by the district attorneys office and had been incarcerated for their crimes—one was convicted of "breaking into a car" and the other was convicted of killing a nephew during an accident while speeding. J.W. himself had an encounter with a police officer—after being stopped while driving his car, J.W. disputed the officers statement that there was no current registration tag on the car (the reason for the vehicle stop), whereupon the officer accused J.W. of "calling [him] a liar." And J.W. appeared to have a negative impression of law enforcement officers because of a friend who was employed as an officer at a correctional facility—J.W. stated: "Like sometimes he would be speeding down the road or something and hell flash his badge and sometimes get out of a speeding ticket, and I dont think that was correct." In addition, J.W. recounted that he himself was involved in litigation—he was "suing [his] employer for unlawful termination." The record also reflects J.W. made an error in filling out his jury questionnaire; he marked race as "C," which apparently stood for Caucasian.
As the trial court later observed, this information plainly included justifiable non-race-based reasons for the prosecutor to have exercised a peremptory challenge to excuse J.W. from serving on the jury. (People v. Gutierrez, supra, 28 Cal.4th at pp. 1123-1124 [that a prospective juror has relatives with criminal convictions is a valid race-neutral reason to justify a peremptory challenge]; People v. Cummings (1993) 4 Cal.4th 1233, 1282 [same]; People v. Gutierrez, supra, 28 Cal.4th at p. 1125 [a prospective jurors negative experience with law enforcement officers is a proper race-neutral reason for a peremptory challenge]; People v. Turner, supra, 8 Cal.4th at p. 171 [same]; People v. Perez (1994) 29 Cal.App.4th 1313, 1329 [concern that a prospective juror, who is currently suing an employer for wrongful termination, might harbor bias against the court system is a valid race-neutral reason to exercise a peremptory challenge].)
Indeed, the reasons for the prosecutor to legitimately excuse J.W. as a juror were so obvious that defense counsel did not make a Wheeler/Batson motion when the prosecutor exercised a peremptory challenge against J.W.
Nevertheless, when the prosecutor later challenged E.T., and defense counsel made a Wheeler/Batson motion with respect to E.T. and J.W., the trial court found there existed a reasonable inference that the challenges to both prospective jurors were based upon their group association.
However, it readily appears that this prima facie showing as to J.W. was dependent on the prima facie showing with respect to E.T. Stated another way, it plainly appears that the only reason the court belatedly questioned the peremptory challenge to J.W. was due to the later peremptory challenge to E.T., a juror who did not respond in ways demonstrating to the court an obvious race-neutral reason for the challenge.
We reach this conclusion because the court asked the prosecutor to explain only the challenge to E.T. and then, after the prosecutor did so in a way satisfying the court that the challenge to E.T. was done for a non-race-based reason, the court immediately articulated the obvious race-neutral reasons for the peremptory challenge to J.W.
It seems to us that once the court found the prosecutor did not challenge E.T. due to his race, the only basis for questioning the challenge to J.W. disappeared; in effect, the court found that there no longer was a prima facie showing of discrimination with respect to the challenge to J.W. Hence, to require the court to inquire into the prosecutors reasons for challenging J.W. would be elevating form over substance. (Civ. Code, § 3528.) Nevertheless, it appears that this is what the law requires.
In People v. Avila (2006) 38 Cal.4th 491 (hereafter Avila), the California Supreme Court noted a trial court is not required to ask a prosecutor to explain a peremptory challenge that is not a "`suspect excusal." (Id. at p. 551.) Therefore, "when a trial court determines that the defendant has made a prima facie showing that a particular prospective juror has been challenged because of [group] bias, it need not ask the prosecutor to justify his challenges to other prospective jurors of the same group for which the Batson/Wheeler motion has [already] been denied." (Id. at p. 549.) An earlier challenge to a person of the same group is "merely a part of the totality of the relevant facts to be considered in determining a prima facie case of group bias" with respect to the new Wheeler/Batson motion. (Id. at p. 552.)
However, the Supreme Court said that a "`suspect excusal," requiring the trial court to ask the prosecutor why the challenge was made, "includes the excusals to which the defendant is objecting and which the court has not yet reviewed." (Avila, supra, 38 Cal.4th at p. 551.)
Here, defendant made a Wheeler/Batson motion when the prosecutor exercised a peremptory challenge to prospective juror E.T., and defendant included in the motion the prosecutors earlier challenge to prospective juror J.W., even though defendant had not raised a Wheeler/Batson objection when J.W. was excused. After the trial court concluded that a prima facie case of group bias was made as to both E.T. and J.W., each challenge became a "`suspect excusal" which the court had "not yet reviewed." (Avila, supra, 38 Cal.4th at p. 551.) Hence, it appears the court was required to "ask the prosecutor to explain `each suspect excusal," i.e., both the challenge to J.W. as well as the challenge to E.T. (id. at p. 551), even though it is apparent to us that upon finding E.T. was excused for a legitimate race-neutral reason, the court found there no longer was a prima facie showing of group discrimination with respect to the challenge to J.W. Under the compulsion of Avila, we conclude that the trial court committed Wheeler/Batson error by failing to ask the prosecutor to explain his challenge to J.W.
Ordinarily, the remedy for Wheeler/Batson error is a limited remand for a new Wheeler/Batson hearing. (People v. Johnson (2006) 38 Cal.4th 1096, 1099-1102.) Defendant argues that such a remedy would be inappropriate in this case for two reasons. First, because of the passage of so much time since voir dire, defendant argues "there is a concern as to whether the vagaries of memory and recall preclude any reasonable possibility that a limited remand can resolve the matter fairly and accurately." But that is a matter which could be addressed by the trial court on remand (People v. Johnson, supra, 38 Cal.4th at pp. 1101-1102; People v. Garcia (2000) 77 Cal.App.4th 1269, 1282-1283), bearing in mind that there is a court reporters transcript of the voir dire and challenges. Second, he complains that the prosecutor could simply adopt the courts justifications as his own, secure in the knowledge that those reasons would pass muster because the court "has written a script, as it were, for the prosecutor to follow on remand . . . ." Again, that is a matter the court could consider on remand in deciding whether the reasons given by the prosecutor for challenging J.W. and E.T. truly motivated his decision or were sham excuses designed to hide discriminatory motives. In this respect, the court could have the benefit of considering the characteristics of the jury chosen for defendants trial to see if those characteristics dispel any discriminatory intent by the prosecutor. (People v. Turner, supra, 8 Cal.4th at p. 168 ["While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection"]; accord, People v. Gutierrez (2002) 28 Cal.4th 1083, 1122-1123.) Indeed, the record appears to reflect that the prosecutor did not challenge two African-American women and that they ended up serving on the jury.
In sum, we must remand the matter to the trial court with directions to (1) require the prosecutor to explain his peremptory challenge to J.W., and (2) then rule on defendants Wheeler/Batson objection to that challenge.
II
Defendant next asserts that the trial court erred in allowing a security officer to sit within close proximity to the witness stand while defendant, who was chained to a security chair, was testifying. We disagree.
During the trial, defendant was restrained in a security chair at counsels table, and defense counsel conceded no restraints were visible to the jury. The court determined that the security chair was necessary because defendant had assaulted a fellow inmate and had incited racial altercations in the jail. In addition, defendant had stated that he was afraid of members of the victims family who were in the courtroom and that if they tried to do anything to him, he would defend himself even if chained to his chair.
The court denied defense counsels request that the restraints be removed while defendant testified. When defendant took the stand, he did so outside the presence of the jury and he was seated in a security chair. Counsel conceded that the arrangements were adequate and that defendants chains were hidden from view by his shirttails; but counsel objected to the uniformed deputy sitting only two steps away from the witness stand. According to counsel, this security measure was not justified and was outweighed by the prejudicial effect.
The court ruled: "The escort officer is to remain near the defendant while he is testifying per Court policy regarding security of inmates in custody in this court house." The court found that "the prejudicial impact of the deputy sitting near the witness stand is de minimis and no different than the effect of the deputy sitting behind the defendant while he was at counsels table."
Defendant contends that the trial court abused its discretion. He acknowledges the chains were covered by his shirttails and could not be seen, but argues the presence of the security officer was apparent to the jury. According to defendant, the procedure used by the court undermined the presumption of innocence and, thus, deprived him of his due process right to proof beyond a reasonable doubt.
In People v. Marks (2003) 31 Cal.4th 197 (hereafter Marks), the California Supreme Court rejected a similar contention where a security guard was seated on a raised platform, four or five feet away from the defendant while he testified. (Id. at pp. 222-224.) Marks noted that the "manifest need standard," imposed by People v. Duran (1976) 16 Cal.3d 282 for the use of physical restraints, does not apply to the usual deployment of guards in the courtroom, or even to their presence sitting behind the defendant. (Marks, supra, 31 Cal.4th at pp. 223-224.) There is a distinction between shackling the defendant and monitoring of the courtroom by security personnel. Monitoring does not necessarily create the prejudice occasioned by physical restraints; it does not tend to dispel the presumption of innocence or to confuse and embarrass the defendant. (Ibid.; People v. Jenkins (2000) 22 Cal.4th 900, 995-996.)
Marks observed that the United States Supreme Court also has distinguished between shackling—which reflects on the defendants culpability or violent propensities—and the more neutral precaution of deploying security personnel in the courtroom. (Marks, supra, 31 Cal.4th at p. 224, citing Holbrook v. Flynn (1986) 475 U.S. 560, 568-569 [89 L.Ed.2d 525, 534-535].)
"While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendants trial need not be interpreted as a sign that [the defendant] is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendants special status. Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm. [Citation.]" (Holbrook v. Flynn, supra, 475 U.S. at p. 569 [89 L.Ed.2d at pp. 534-535].)
Because the presence of guards in the courtroom is not inherently prejudicial, their appearance at a defendants trial is reviewed on a case-by-case basis to determine whether the defendant was actually prejudiced. (Holbrook v. Flynn, supra, 475 U.S. at p. 569 ; see also People v. Jenkins, supra, 22 Cal.4th at p. 996.)
Here, defendant concedes that the jury was aware of the strong feelings of the victims family, who were present in the courtroom in large numbers. Hence, the jurors were just as likely to think that the security officers proximity to defendant was for defendants protection, rather than to think the officers presence indicated defendant was dangerous. And the court had instructed the jurors earlier that they were not to draw any conclusions from the presence of two security guards in the courtroom, or to infer that the officers presence had anything to do with defendant. The court admonished the jurors to disregard defendants custodial status in deciding the case, and emphasized that the case was to be decided on the evidence and the law. This was sufficient to dispel any potential prejudice.
Consequently, defendants contention fails since he has not demonstrated actual prejudice, and because we find nothing in the security procedures used at his trial was so inherently prejudicial to warrant a conclusion that the jurors observation of the security measures affected their verdict. (People v. Hayes (1999) 21 Cal.4th 1211, 1269.)
Defendant disagrees, claiming the officers "hovering presence" unduly burdened defendants right to present a defense by affecting his testimonial demeanor. In his view, the trial court abused its discretion in failing to consider a less restrictive alternative, such as positioning the officer at some strategic point other than near the witness stand.
This contention, that the court should have explored less intrusive means of securing the courtroom, is forfeited because defendant failed to raise it in the trial court. (Marks, supra, 31 Cal.4th at p. 224.) Although he objected to the officers presence near the witness stand, defendant did not suggest any alternatives that he deemed acceptable. Moreover, the decisions upon which defendant relies to support his claim that the court must consider less restrictive alternatives are inapposite because they concern the imposition of physical restraints, which are subject to a more exacting standard. (People v. Mar (2002) 28 Cal.4th 1201, 1206, 1214, 1218 [use of a REACT stun belt]; People v. Jackson (1993) 14 Cal.App.4th 1818, 1825-1827 [use of shackles]; Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633, 636 [use of shackles].)
Defendants assertion that the location of the security guard impermissibly infringed on defendants right to present a defense because it distracted him, affected his testimonial demeanor, and affected the jurys ability to assess his testimonial demeanor, is not persuasive. If he believed that the officers presence would be unduly distracting, defendant should have mentioned this in the trial court. (See People v. Mar, supra, 28 Cal.4th at pp. 1224-1225.) Furthermore, we see no reason, and none has been suggested, why—unlike the wearing of a REACT stun belt, which may go off unexpectedly, would inflict debilitating pain, and could be humiliating (id. at pp. 1224, 1228-1229)—the mere presence of a security officer seated nearby would cause defendant any unusual anxiety during his testimony.
Nor was the officers placement near defendant akin to the distracting presence of a support person accompanying a witness on the witness stand, as defendant suggests by his reference to People v. Adams (1993) 19 Cal.App.4th 412. Defendant points to nothing about the officers location or conduct during defendants testimony that would make it likely the jurors were unable to concentrate on, and assess, defendants demeanor and statements while he testified.
And defendants reliance on Coy v. Iowa (1988) 487 U.S. 1012 is of no help to him. That decision held that the placement of a screen between a defendant and the testifying victim violated the defendants right to confront witnesses against him. Defendant fails to explain how the Confrontation Clause of the Sixth Amendment has any application to events occurring during his own testimony.
In sum, there was no prejudicial abuse of discretion in allowing a security officer to be present near defendant during defendants testimony.
III
Due to the introduction of defendants prior acts of domestic violence against the victim (Evid. Code, § 1109), the trial court instructed the jurors with CALJIC No. 2.50.02 as follows: "If you find that the defendant committed . . . a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. [¶] If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses. [¶] Thus, the weight and significance of any prior abuse that you may find is for you to decide. Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
The court then instructed the jurors with CALJIC No. 2.50.1 as follows: "Within the meaning of the preceding instruction, the prosecution has the burden [of] proving by a preponderance of evidence that the defendant committed crimes other than those for which he is on trial. [¶] You must not consider this evidence for any other purpose unless you find by a preponderance of evidence that a defendant committed the other crimes."
Defendant contends there is a reasonable likelihood that these instructions misled the jury into premising defendants guilt on only a preponderance of the evidence, rather than on proof beyond a reasonable doubt. This is so, defendant argues, because the instructions indicate that subsidiary facts need be proved only by a preponderance of the evidence, which conflicts with the directive of CALJIC No. 2.01 that any piece of evidence deemed essential to the overall determination of proof beyond a reasonable doubt must itself be proved beyond a reasonable doubt.
As given to the jury, CALJIC No. 2.01 stated: "[A] finding of guilt as to any crime may not be based on circumstantial . . . evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of the crime, but two, cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. [¶] In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt."
Thus, defendant argues the instructions were unconstitutional, in effect, because "a finding of malice aforethought might well depend on a direct chain of inference from the existence vel non of any one of the alleged incidents of uncharged domestic violence."
In People v. Pescador (2004) 119 Cal.App.4th 252, this court rejected such an attack on CALJIC No. 2.50.02. (Id. at pp. 258-262.) For the reasons stated in that decision, we reject defendants like attack on the instruction. (See also People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016; People v. Jeffries (2000) 83 Cal.App.4th 15, 23-24.)
IV
In another attack on the judgment, defendant challenges the trial courts refusal to conduct an evidentiary hearing prior to denying defendants motion for new trial on the ground of juror misconduct. He contends the court should have allowed his counsel to present evidence that jurors deliberated outside of the jury room prior to the submission of the case and also impermissibly considered the potential penalty for his crimes. In his view, the court abused its discretion and violated his right to due process of laws when it failed to conduct the requested evidentiary hearing.
After the verdict, Juror No. 1 approached defense counsel and advised him that she had serious concerns regarding the trial. Thereafter, she met counsel in his office and informed him that Juror No. 11 told her some of the other jurors (Juror Nos. 4, 7, 9, and 10) had discussed the case among themselves before it was submitted for their deliberation and, during jury deliberations, some of the jurors discussed that it would make no difference whether they convicted defendant of first or second degree murder because he would never get out of prison "on a three strikes basis." But Juror No. 1 refused to sign a declaration to this effect.
Defense counsel moved for a new trial based on juror misconduct, submitting Juror No. 1s unsigned declaration and defense counsels own declaration attesting that the unsigned declaration reflected what Juror No. 1 told him. At the hearing on the motion, defense counsel asked for an evidentiary proceeding, stating that he wished to subpoena four jurors (Juror Nos. 1, 4, 9, and 11) to compel their testimony under oath regarding whether they deliberated outside the courtroom.
The People opposed the motion, asserting that the unsigned, hearsay declaration of Juror No. 1 was insufficient to establish that defendant was entitled to either an evidentiary hearing or a new trial. In addition, the People submitted signed declarations from three jurors (Jurors Nos. 3, 6, and 10), stating that the potential penalty did not affect their verdict and that to their knowledge, the jury deliberated only when all 12 jurors were present in the jury room. According to Juror No. 10, who was one of the jurors that Juror No. 1 allegedly accused of misconduct: "At no time during the trial did we deliberate on the case while without all 12 jurors and we only began deliberations when the case was given to the jury to decide."
Citing People v. Hedgecock (1990) 51 Cal.3d 395 (hereafter Hedgecock) and People v. Cox (1991) 53 Cal.3d 618 (hereafter Cox), the trial court denied the request to conduct an evidentiary hearing and denied the motion for new trial. The court concluded that the unsigned, hearsay declaration submitted by defense counsel was not sufficient to warrant the requested relief.
On appeal, defendant does not argue that the evidence his counsel presented to the court entitled defendant to a new trial and, thus, the court abused its discretion by failing to grant his new trial motion; he simply asserts that the court erred in denying the motion without conducting an evidentiary hearing at which the jurors attendance would be compelled, thereby enabling defendant to present competent evidence of juror misconduct.
Absent a showing of abuse of discretion, we will uphold a trial courts denial of a postverdict request for an evidentiary hearing regarding allegations of jury misconduct. (People v. Carter (2003) 30 Cal.4th 1166, 1216; Cox, supra, 53 Cal.3d at p. 694.) Defendant was "not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact" (Hedgecock, supra, 51 Cal.3d at pp. 415-416) and "only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." (Id. at p. 419.)
Unsworn juror affidavits and hearsay allegations generally are insufficient to establish a material factual dispute and trigger the courts duty to make further inquiries into a claim of juror misconduct. (People v. Hayes, supra, 21 Cal.4th at p. 1256; Cox, supra, 53 Cal.3d at p. 698.) In Cox, the California Supreme Court "decline[d] to extend the holding in Hedgecock to situations in which the defendant merely seeks to place unsworn statements under oath by calling upon reluctant jurors to reiterate those statements from the witness stand." (Cox, supra, 53 Cal.3d at p. 698.) Cox explained there is "no constitutional, statutory, or decisional imperative supporting such an extension. A criminal defendant has neither a guaranty of posttrial access to jurors nor a right to question them about their guilt or penalty verdict." (Id. at pp. 698-699.) If a juror is unwilling to come forward and to sign an affidavit, then permitting defense counsel to compel the jurors testimony is tantamount to sanctioning the harassment of jurors, which would ultimately damage both the jury process and the administration of justice. (Id. at p. 699.)
Here, the trial court was justified in according little, if any, credence to hearsay assertions that Juror No. 1 was not willing to verify. (Cox, supra, 53 Cal.3d at pp. 697-698; Hedgecock, supra, 51 Cal.3d at p. 419; People v. Williams (1988) 45 Cal.3d 1268, 1318-1319.) Hence, the court did not abuse its discretion in denying defendants request for an evidentiary hearing.
Defendant also tries to establish an equal protection violation, asserting that a defendant who raises a claim of juror misconduct via a petition for writ of habeas corpus is entitled to an evidentiary hearing based on a lesser standard of proof than is a defendant who raises a claim of juror misconduct via a motion for new trial. According to defendant, in a habeas corpus petition, allegations of juror misconduct need be supported only by "reasonably available documentary evidence" (People v. Duvall (1995) 9 Cal.4th 464, 474), which defendant apparently interprets to encompass unsworn, hearsay declarations. Citing In re Fields (1990) 51 Cal.3d 1063, he states supporting documentation is not required to be competent evidence because its primary purpose is "to assure the court of the bona fides of the allegations made in the petition." The contention fails.
"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530, original italics.) "The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only . . . that he will receive like treatment with all other persons similarly situated." (People v. Enriquez (1977) 19 Cal.3d 221, 229, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
"Neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution (art. I, § 7; art. IV, § 16) precludes legislative classification with respect to persons who are different." (People v. Jacobs (1984) 157 Cal.App.3d 797, 802.) What is required is that similarly situated persons with respect to the legitimate purpose of the law receive like treatment. (Ibid.)
Defendant provides no analysis demonstrating that a defendant moving for a new trial on the ground of alleged juror misconduct is similarly situated to a defendant petitioning for a writ of habeas corpus on the same ground. He provides no explanation why the equal protection of laws requires that procedures available to a defendant who raises an issue via a petition for writ of habeas corpus must also apply to a defendant who raises an issue via a motion for new trial. Nor has he presented any argument and authority establishing that he is precluded from raising his claim of juror misconduct via a habeas corpus petition to obtain the evidentiary hearing he seeks. Absent proof that he is unable to do so, defendant cannot claim that he has been denied equal protection of laws. He has been treated like every other defendant filing a motion for new trial based on inadequate declarations attempting to show juror misconduct, and he will be treated like every other defendant filing a petition for writ of habeas corpus should he choose to do so.
In any event, defendants contention fails because he has not established that factual assertions based upon patently deficient hearsay declarations are nonetheless sufficient to warrant an evidentiary hearing in a habeas corpus proceeding.
A petition for writ of habeas corpus "should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.] `Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing. [Citation.]" (People v. Duvall, supra, 9 Cal.4th at p. 474.)
Defendant presents no argument, supported by authority, establishing that on a claim of juror misconduct, an evidentiary hearing must be granted if a petitioner for writ of habeas corpus submits a hearsay declaration indicating that a juror told defense counsel that she was told by another juror that still other jurors discussed the case before deliberations. The authorities upon which he relies do not stand for the proposition that in a habeas corpus proceeding, any unsupported factual assertions of jury misconduct mandate an evidentiary hearing, even when valid declarations refute the defendants assertions.
V
At the time of defendants trial, Ohio v. Roberts (1980) 448 U.S. 56 (hereafter Roberts) held that the Sixth Amendment of the United States Constitution did not bar admission of a statement of an unavailable witness against a criminal defendant if the statement was admissible under state law, and bore sufficient "`indicia of reliability." (Id. at p. 66 [65 L.Ed.2d at pp. 607-608].)
Accordingly, over defendants objection, the trial court here allowed, pursuant to Evidence Code section 1370, the introduction into evidence of statements the victim made to police officers about three prior acts of domestic violence by defendant. Evidence Code section 1370 establishes a hearsay exception for out-of-court statements made to law enforcement officials, among others, by the victims of assault or of threats of assault if the declarant is "unavailable" and the statements are "trustworthy." (People v. Hernandez (1999) 71 Cal.App.4th 417.)
Evidence Code section 1370 states in pertinent part: "(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness pursuant to Section 240. [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official."
After defendants trial, the United States Supreme Court held the admission of "testimonial" hearsay statements by an unavailable declarant violates the confrontation clause of the Sixth Amendment unless defendant had an opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36, 60-63, 68-69 [158 L.Ed.2d 177, 198-200, 203] (hereafter Crawford), overruling Roberts, supra, 448 U.S. 56 .)
If, however, the statement is "nontestimonial," the rules of evidence apply, and it is not barred by the Sixth Amendment. "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law . . . ." (Crawford, supra, 541 U.S. at p. 68 [158 L.Ed.2d at p. 203.) Hence, state courts may consider "reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. [Citation.]" (Id. at p. 57 [158 L.Ed.2d at p. 196.)
Crawford did not define the term "testimonial" and, instead, gave examples, such as (1) grand jury testimony, (2) prior testimony at trial testimony, (3) ex parte testimony at a preliminary hearing, and (4) statements to law enforcement officers in the course of interrogations. (Id. at pp. 51-52, 68 [158 L.Ed.2d at pp. 193, 203.)
Relying on Crawford, defendant contends that because he did not have the opportunity to cross-examine the victim, her statements to the police regarding incidents of domestic violence on March 6, 1996, December 28, 1996, and June 16, 1998, should not have been introduced into evidence and, thus, defendants convictions must be reversed.
We have awaited, and now received, further guidance from the United States Supreme Court on this issue.
In Davis v. Washington (2006) ___ U.S. ___ , the Supreme Court determined "when statements made to law enforcement personnel during a 911 call or at a crime scene are `testimonial and thus subject to the requirements of the Sixth Amendments Confrontation Clause." (Id. at p. ___ .) The court held: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. ___ .)
For example, a "911 call" "and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to `establis[h] or prov[e] some past fact, but to describe current circumstances requiring police assistance"; consequently statements made during the 911 call and interrogation conducted in connection with the call are generally deemed to be nontestimonial. (Davis v. Washington, supra, ___ U.S. at p. ___ .) However, "[t]his is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot . . . `evolve into testimonial statements, . . . once that purpose has been achieved." (Id. at p. ___ .)
When, on the other hand, there is no emergency in progress, and the officer is "not seeking to determine . . . `what is happening, but rather `what happened," the statements are testimonial because they are a product of "an investigation into possibly criminal past conduct . . . ." (Davis v. Washington, supra, ___ U.S. at p. ___ .) This does not mean, however, "that no questions at the scene will yield nontestimonial answers"; for example, with regard to "domestic disputes," "`[o]fficers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim. [Citation.] Such exigencies may often mean that `initial inquiries produce nontestimonial statements. But . . . where [the] statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation," the statements become testimonial. (Id. at p. ___ .)
Nevertheless, when the declarant does not testify because the defendant has procured the declarants silence, "the Sixth Amendment does not require courts to acquiesce." (Davis v. Washington, supra, ___ U.S. at p. ___ .) Thus, "when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims," "`the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds. [Citation.] That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." (Id. at p. ___ .)
Here, there is no question that defendant procured the victims unavailability as a witness subject to cross-examination because he murdered her. Hence, defendant has forfeited his ability to raise a Crawford challenge to the victims statements to officers concerning prior domestic violence by defendant.
In any event, it appears the victims statements to officers about defendants acts of domestic violence against her on March 6, 1996, and June 16, 1998, were nontestimonial and, thus, not subject to a Crawford challenge.
On March 6, 1996, Officer Falcon was dispatched to the victims residence in response to a domestic violence call. The victim, who was obviously injured with swelling on her arm and leg, recounted that defendant had hit her, kicked her, threatened to kill her, and punched a hole in the wall after she told him that she wanted to end their relationship. After struggling to get away from defendant, the victim called the police "to report what was going on." The victims call and statements to the responding officer were a quintessential "cry for help" describing current circumstances requiring police assistance; hence, they were nontestimonial. (Davis v. Washington, supra, ___ U.S. at p. ___ .)
So, too, were the victims statements on June 16, 1998, when Officer Chernow responded to a domestic violence call. Stating she was afraid that defendant was going to kill her, the victim described how he assaulted her the night before after accusing her of "cheating on him" by going "out with another guy." After then leaving the apartment, defendant returned late at night grabbed the victim and pushed her onto the bed. Saying he was going to "fuck her up," defendant grabbed a belt, wrapped it around her neck, and pulled it so tight she could not breathe until the belt eventually broke. Again, the victims statements were a call for help to deal with a situation that, although it occurred the night before, had left the victim in current fear for her life. She was seeking the officers help not to establish or prove past events potentially relevant to later criminal prosecution, but to enable officers to immediately end a violent situation that was threatening to her. Hence, the statements were nontestimonial and not subject to a Crawford challenge.
The statements the victim made regarding defendants acts of domestic violence on December 28, 1996, present a more difficult situation. The victim telephoned the police department to say that she was not "a missing person" as defendant had reported to officers; rather, she had fled because she "feared for her life" after defendant threatened to kill her and slashed furniture in the apartment because he was angry with her.
Even if these statements were testimonial, we are satisfied beyond a reasonable doubt that defendant was not prejudiced by their introduction into evidence.
The victims statements were not necessary to establish that defendant killed her; defendant conceded he did so. The sole issue was whether the killing was murder or manslaughter. Defendant argues, "Obviously, the instances of prior domestic violence were crucial to this determination," and "the multiplicity of domestic violence instances weighed heavily against a finding that a sudden heat of passion arose" when defendant killed the victim. Thus, in defendants view, the evidence made a significant contribution to the murder verdict such that the error is not harmless beyond a reasonable doubt. We disagree.
The victims sisters, Sheila and Shawn, testified about another act of domestic violence by defendant in 1998, when he broke the rental car window and punched the victim in the mouth. They also disclosed that defendant had made numerous murderous threats to the victim. Their testimony was not inadmissible under Crawford. Furthermore, the fact that defendant had a prior conviction for domestic violence for choking the victim with a belt in June 1998 was admissible pursuant to Evidence Code section 1109, without violating defendants confrontation rights. This properly admissible evidence lessened any prejudice that was occasioned by introduction of the victims statements.
Moreover, the evidence against defendant was strong, if not overwhelming, and the evidence of a heat of passion killing was weak. On the day of the killing, defendant stated that he was "sick of this B[itch]," referring to the victim, and that "he was going to do something real bad" to the next person with whom he had a confrontation and "it wasnt going to be nice." Thereafter, he killed the victim in the same manner that he knew her mother had been killed, by stabbing her and severing her jugular vein.
Defendants testimony was the only evidence supporting his heat of passion defense, but his credibility was impeached by his prior felony convictions. Despite his claim that the victim pulled a knife on him, which he then grabbed by the blade, defendant did not have any cuts to the palm of his hands. And Shawnetta, who was present in the apartment when her sister was killed, did not hear any yelling, screaming, or loud noises that night—which undermines defendants assertion that the killing occurred in the heat of passion during an argument. In fact, one would expect a woman being brutally stabbed to resist quite strenuously and noisily if she was awake during the attack.
Unquestionably, the jury rejected defendants heat of passion defense because it was implausible, not because of the evidence of multiple prior acts of domestic violence. Thus, the admission of the victims statements was harmless beyond a reasonable doubt.
VI
Defendant argues the erroneous admission of the aforementioned uncharged evidence pursuant to Evidence Code section 1370 interfered with his right to the effective assistance of counsel. This is so, he says, because the introduction of the evidence of his uncharged conduct affected his attorneys advice concerning whether defendant should testify.
The contention fails because it is based on a flawed premise. As we explained in part V, ante, the trial court did not err in allowing the prosecutor to introduce into evidence the victims statements about defendants prior acts of domestic violence.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for the limited purpose of (1) requiring the prosecutor to explain his challenge to prospective juror J.W., and (2) then ruling on defendants Wheeler/Batson objection to that peremptory challenge. If the trial court finds the challenge to J.W. was for a race-neutral reason, it shall reinstate the judgment. If it finds otherwise, the court shall grant defendant a new trial.
We concur:
DAVIS, J.
HULL, J.