Opinion
G030840.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. FRANKIE HENRY OVIEDO, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P. Gonzalez and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Frankie Oviedo was convicted of vehicle theft, resisting arrest and possessing methamphetamine and a smoking device. He was also found to have served three prison terms and suffered two strike convictions and two car theft convictions, which landed him in prison for a term of 25 years to life. On appeal, he argues the prosecutor violated the tenets of People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748. He also alleges instructional and sentencing error. We find such error and remand for resentencing on the prison term enhancements and to correct errors in the abstract of judgment. In all other respects, we affirm.
Early one morning, Police Officer James Rose noticed Oviedo driving recklessly. He followed him for a few minutes before Oviedo stopped at the home of his cousin, Rudy Curiel. As Oviedo exited his vehicle, Rose told him to stop, but he dashed into Curiels yard.
Curiel soon came outside and told Rose that someone was trying to break into his house. Oviedo then appeared from the rear of the house. By that time, he had discarded his jacket, cap and outer pants. Rose drew his gun and ordered him to raise his hands, but Oviedo ran instead.
Rose gave chase and eventually cornered Oviedo in an industrial yard. However, rather than surrender, Oviedo took a fighting stance and charged Rose several times. It took some doing, but Rose managed to subdue him with his baton and, with the help of other officers, take him into custody.
Back at Curiels house, officers found the clothes Oviedo had discarded. Inside his pants pocket there was 214 milligrams of methamphetamine and a pipe. A check of the vehicle Oviedo had been driving revealed it had been stolen the night before. Oviedo had removed the rear license plate and replaced it with one he had stolen from a similar looking vehicle.
I
Oviedo argues the trial court erroneously denied his motion under People v. Wheeler, supra, 22 Cal.3d 258 (Wheeler ). Specifically, he claims the prosecutor violated Wheeler by using a peremptory challenge against Prospective Juror No. 7 because he was Hispanic. Because the record does not support this claim, we uphold the trial courts ruling.
Oviedo did not protest when the prosecutor challenged Prospective Juror No. 7, nor did he object when the prosecutor subsequently challenged another Hispanic, Prospective Juror No. 2. However, when the prosecutor later challenged Prospective Juror No. 1, defense counsel made a Wheeler motion on the grounds the prosecutor was "starting to knock off a lot of Hispanics."
The trial judge noted the challenge to Prospective Juror No. 1 was the prosecutors sixth peremptory challenge. The judge observed, "Three of [the challenged jurors] have Hispanic surnames; however, [Prospective Juror No. 1] doesnt appear to be Hispanic and doesnt have any accent or anything like that. Theres also clearly a Hispanic female left . . . . [P] And there are numerous Hispanics left, but I guess just on the theory of three out of six, the court would say that theres a possibility that it could be an unlawful use or impermissible use of the challenge." The judge therefore invited the prosecutor to address the issue.
The prosecutor said that he did not know Prospective Juror No. 1 was Hispanic and that he excused him because "he indicated a fairly strong distrust of police officers." The court said it had sensed the same thing about Prospective Juror No. 1 and would have been surprised if the prosecutor had not challenged him. It found "no impermissible use of the challenge."
Defense counsel then contested the removal of Prospective Jurors No. 2 and No. 7. He said he did not contest their removal earlier because he "didnt see the pattern until just now." The judge stated, "Thats an interesting concept, ex post facto challenges, and I dont know how that would pan out in our appellate courts. I certainly cant say that offhand with a Hispanic left after each of those two jurors . . . were excused that I would find a prima facie showing there was impermissible exclusion of those two jurors because of their Hispanic heritage. So Im specifically not finding a prima facie showing."
Nonetheless, the judge allowed the prosecutor "to make a case for the record" as to why he excused Prospective Jurors No. 2 and No. 7. The prosecutor said he excused No. 2 because she expressed a strong discomfort in sitting as a juror, and he excused No. 7 because, inter alia, he seemed unresponsive and distant and "did not strike [him] as a good juror for the Peoples case." Finding these reasons to be "truthful and credible," the judge denied Oviedos motion under Wheeler.
Our Supreme Court recently clarified the standard for proving discriminatory use of a peremptory challenge. In People v. Johnson (2003) 30 Cal.4th 1302, 1306, the court held: "Under both Wheeler and [Batson v. Kentucky (1986) 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712], to state a prima facie case, the objector must show that it is more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible group bias." Using this standard, the Johnson court upheld the trial courts finding the defendant failed to carry his burden in this regard. This was so, even though the prosecutor had exercised peremptory challenges against all three African Americans on the jury panel. (Id. at pp. 1325-1328.)
Oviedo argues the trial court erred in ruling he failed to make a prima facie case of discrimination with respect to Prospective Juror No. 7. In so arguing, he presumes the court based its ruling solely on the fact he did not contest Prospective Juror No. 7s removal until after he contested Prospective Juror No. 1s removal. The court did question the propriety of Oviedos "ex post facto" objection, but in the end it denied his motion because it felt the circumstances failed to "show[] there was impermissible exclusion" of Prospective Juror No. 7. The timing of the motion was simply not a material aspect of the courts decision.
Oviedo also argues the court ruled inconsistently to the extent it found a prima facie case of discrimination with respect to the removal of Prospective Juror No. 1 but not Prospective Juror No. 7. This argument is unpersuasive because the court did not have the benefit of the Johnson decision at the time it made its ruling. In assessing the challenge to Prospective Juror No. 1, the court assumed the exercise of a peremptory challenge that raises "a possibility" of discrimination is sufficient under Wheeler. However, the Johnson decision makes clear that a mere possibility does not suffice to meet the moving partys burden of proving a prima facie case under Wheeler. Rather, as we have stated, the moving party must show it is more likely than not that prospective jurors are being targeted for discriminatory reasons. Because the court did not find that such a showing had been made in this case - even with respect to Prospective Juror No. 1 - there is no real basis to impugn its rulings for lack of consistency.
Still, Oviedo maintains he presented a prima facie case of discrimination because in addition to showing the number and percentage of Hispanics that were challenged, he also "placed the challenges . . . in the context of the overall venire, and . . . showed that the challenged Hispanics had nothing in common but their Hispanic heritage." In fact, defense counsel raised the Wheeler issue simply because he believed the prosecutor was "starting to knock off a lot of Hispanics." As Oviedo readily admits, such an assertion is woefully inadequate to justify relief. (See People v. Garceau (1993) 6 Cal.4th 140, 171, 862 P.2d 664 [Wheeler motion properly denied where defendants "motions merely reiterated the names of the jurors removed by the prosecution and alleged that, because the removed jurors all were Hispanic-surnamed women, he had made a `prima facie showing" of discrimination].) Oviedo did not prove the prosecutors actions were more likely than not motivated by discriminatory intent.
Even if he had, "The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a `trivial reason, if genuine and neutral, will suffice. [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 136, 913 P.2d 980.) In explaining his challenge to Prospective Juror No. 7, the prosecutor said, "He struck me as someone who was not very responsive. He never smiled . . . at any jokes. He seemed to be somewhat distant." Although these justifications may appear short on substance, "peremptory challenges are properly made in response to `"bare looks and gestures" by a prospective juror that may alienate one side." (People v. Turner (1994) 8 Cal.4th 137, 171, 878 P.2d 521.) They are, after all, peremptory. Because the prosecutors impressions of Prospective Juror No. 7 were not related to any type of impermissible group bias, the trial court was entitled to consider them, and could reasonably find they were sufficient to justify a peremptory challenge. For this reason as well, the court properly denied Oviedos motion.
II
Oviedo also contends the trial judge erroneously dissuaded the jury from taking any secret ballots. We disagree.
In its concluding instruction to the jury, the judge stated, "my suggestion to you during your deliberations, is merely that you not take any secret ballots on any issues in the case, including the issues of what are the facts, what is the law, and what your verdict should be. The reason that I suggest that is that its your primary duty to see if you can resolve this case for us, if there was in fact somebody that was disagreeing with you on one of those kind of issues, it seems to me that you are best served, each of you, knowing who it was that disagreed with you so you could talk that disagreement out, if its possible. Obviously, if you didnt even know who was disagreeing, that would be harder to do. However, thats just my suggestion. [P] Youre now free to deliberate any way you see fit within the meaning of these instructions and to reach your verdict . . . ."
Given that Oviedo failed to object to this instruction, he has waived his right to challenge it now, except to the extent it impaired his substantial rights. (See Pen. Code, § 1259.) Two factors convince us it did not. First, the court couched its remarks in terms of a "suggestion" and expressly reminded the jurors they were free to deliberate any way they wanted. Contrary to Oviedos claim, the courts remarks did not deprive the jury of the option of conducting secret ballots.
Second, the courts remarks did not, as Oviedo claims, "tilt the deliberations in favor of the vociferous majority by advising the jurors to conduct deliberations in a manner that would likely have the effect of cowing the minority into silent acquiescence." As the court explained, its suggestion was aimed at achieving the opposite effect. That is, encouraging discussion between jurors who have differing points of view on the issues rather than adopting a process which would favor acquiescence of the few to the opinion of the many. There is nothing inherently coercive or unfair about the process the judge suggested, although we see no great advantage to it. Accordingly, the courts remarks are not cause for reversal.
III
Relying on Andrade v. Attorney General (9th Cir. 2001) 270 F.3d 743 and Brown v. Mayle (9th Cir. 2002) 283 F.3d 1019, Oviedo asserts his sentence of 25 years to life is cruel and unusual under the state and federal Constitutions. In Andrade and Brown, the Ninth Circuit found the life sentences imposed in those cases violated the Eighth Amendment because the offenses involved were relatively minor. However, these decisions have been eclipsed by Ewing v. California (2003) 155 L. Ed. 2d 108, __ U. S. __ and Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, __ U.S. __ .
In Ewing, the high court upheld a 25-year-to-life sentence imposed on a defendant for stealing a few golf clubs from an El Segundo pro shop. In rejecting the defendants contention that his sentence constituted cruel and unusual punishment, the court ruled, "When the California Legislature enacted the Three Strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Ewing v. California, supra, __ U.S. at p. __.) It didnt matter that the defendants current offense was relatively minor. Considering his extensive criminal record and "the States public-safety interest in incapacitating and deterring recidivist felons," the court determined his sentence was within constitutional limits. (Id. at p. __; see also Lockyer v. Andrade, supra, __ U.S. at pp. __-__ [life sentence imposed under Three Strikes law deemed not to be grossly disproportionate to crime of petty theft with a prior].)
Oviedo did more than steal a few golf clubs. He stole a car. And he possessed methamphetamine and a pipe. And he violently resisted arrest. His conduct was thus more egregious than the defendants in Ewing. Also, Oviedo has a long history of criminal behavior. As a juvenile, he committed vandalism, attempted burglary and multiple thefts. Indeed, he was part of an outfit called the "CAB Crew," which stands for Criminal Activity Boys. The groups specialty was stealing cars, and as an adult, Oviedo continued to engage in this activity. In 1991 and 1993, as well as in the present case, he was convicted of unlawfully taking or driving a vehicle. He has also been convicted of possessing a firearm while an ex-felon, carrying a concealed weapon and receiving stolen property. His most serious crimes, which were charged as strikes in this case, occurred in 1994 when he held up a gas station and shot the attendant in the stomach during a struggle. Oviedo was sentenced to six years in prison for these acts, but his conduct in the present case shows he is still prone to lawlessness and violence. It is all too apparent that neither probation, incarceration nor parole has worked to deter Oviedo. Because of this, and because the state has an undisputed interest in ensuring Oviedo does not reoffend yet again, his sentence does not violate the Eighth Amendment to the United States Constitution.
As for Oviedos challenge under California law, it is well established that a sentence will be deemed cruel or unusual under the state Constitution only when it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921, fn. omitted.) Three factors guide our determination of this issue: (1) The offense and the defendants background; (2) how the punishment compares to that for more serious offenses in California; and (3) how the offense would be punished in other jurisdictions. (Id. at pp. 429-438.)
Weve already examined the first factor. Based on his criminal history, including his conduct in the present case, Oviedo has clearly demonstrated the necessary propensities to warrant an extended period of confinement. Furthermore, "because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [a third strikers] punishment for his `offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons." (People v. Ayon (1996) 46 Cal.App.4th 385, 400, fn. omitted.) Therefore, we need not dwell on the second Lynch factor.
That brings us to the issue of interstate proportionality. In People v. Martinez (1999) 71 Cal.App.4th 1502, the court conducted a comprehensive survey of the states to determine whether the defendants 25-year-to-life term for possessing a small amount of methamphetamine under the Three Strikes law was disproportionate to the sentence he could have received in other jurisdictions. The court found the defendants conduct would not have justified an extended prison sentence in many jurisdictions. (Id. at pp. 1513-1514.) However, "some states . . . would have imposed comparable punishment," and in others, the defendant could have received the more severe sentence of life without the possibility of parole. (Id . at pp. 1514-1515.) In the end, the court upheld the defendants sentence. While recognizing Californias Three Strikes law is among the toughest in the nation, it did not believe the sentence was cruel or unusual under the state Constitution. (Id. at pp. 1516-1517.)
Oviedo is actually more culpable than the defendant in Martinez, because in addition to possessing methamphetamine he also possessed a pipe, stole a car and violently resisted arrest. We are thus convinced his life sentence is proportionate in the constitutional sense. We do not believe his sentence shocks the conscience or offends traditional notions of human dignity so as to violate the California Constitution. Considering his penchant for violent criminal activity - as evidenced by his conduct in this case and others - his sentence fully comports with constitutional concerns about excessive punishment.
IV
We now turn to Oviedos other sentencing claims. As he rightly points out, the trial court did not have the authority to stay his prior prison term enhancements. These enhancements can be imposed or stricken, but they cannot be stayed. (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Oviedo asks that we correct this oversight by striking the enhancements ourselves. However, that is not an option. While prison term enhancements "are subject to the exercise of the trial courts discretion to strike . . . if a trial judge exercises the power to strike . . ., the reasons for the exercise of discretion must be set forth in writing in the minutes. [Citations.]" (Ibid.) Thus, even if the trial court intended to strike Oviedos prison priors, the case must be remanded to permit the court to comply with the procedural requirements attendant to such a decision. (People v. Bradley, supra, 64 Cal.App.4th at pp. 392, 401 [ordering remand to permit trial judge to impose or strike prison term enhancement]; People v. Irvin (1991) 230 Cal. App. 3d 180, 192-193, 281 Cal. Rptr. 195 [same].)
The remaining sentencing issues are not in dispute. The Attorney General concedes Oviedo is entitled to two additional days of presentence credit, and the abstract of judgment should be corrected to reflect the fact the trial court imposed a concurrent term of four years on count one.
DISPOSITION
The judgment is reversed and remanded to the trial court with directions to impose or strike the prior prison term enhancements in compliance with California law, recompute Oviedos presentence credits and correct the abstract of judgment with respect to count one. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.