Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA071412, Thomson T. Eng, Judge.
Kathy Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Haman aka, Senior Assistant Attorney General, Scott A. Daryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Kun Lyna Chan Tauch, appeals from his conviction for first degree murder (Pen. Code, § 187, subd. (a)) and the findings that he personally used a handgun that proximately caused death (§ 12022.53, subds. (b), (c), (d)) and the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) Defendant argues the trial court improperly denied his discriminatory use of peremptory challenges and mistrial motions. We affirm with directions.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On August 25, 2006, a group of teenagers, including C.T., T.B., R.K., L.M., and Leonel Gonzalez, the victim, went into an alley between Lime and Olive Avenues. They met to discuss C.T.’s missing bicycle. T.B. had taken the bike from C.T.’s home. T.B. had taken the bicycle with C.T.’s sister’s approval. C.T. said he did not want to fight but wanted the bike back. However, R.K. began to fight with T.B. about C.T.’s bike. R.K. lost the fight and refused to shake hands with T.B. R.K. left the alley angrily stating, “I’m going to blow you motherfuckers up.”
C.T. stayed and talked with T.B. and some of the other teenagers for approximately five to seven minutes. C.T. went back to a house on Martin Luther King Avenue near 19th Street. C.T. saw R.K. and defendant get into a car. C.T. went back to his house, where he saw a car drive past. Defendant was in the passenger seat. R.K. was in the back seat. The car stopped near the alley. R.K. pointed toward T.B. and others. The car made a U-turn. C.T. saw defendant and R.K. get out of the car. C.T. went into his house. T.B. also saw the car drive by with R.K. in the back seat. R.K. again pointed towards T.B. and others. T.B. saw the car make a U-turn and return. The car approached T.B., L.M and Mr. Gonzalez. The three young men began to run in different directions. T.B. saw an individual with a ponytail wearing a white shirt and Dickie pants, chasing Mr. Gonzalez. L.M. saw the man jump out of the car carrying a gun. T.B. heard the man with the ponytail say, “Why you all jump my homies?” T.B. also heard the man yell out the name of the local gang. R.K. belonged to another local gang. T.B. heard more than six gunshots. T.B. ran into the house. C.T. heard “a couple bullets” fired. C.T. came out of his house. C.T. saw defendant running down 19th Street. Defendant was holding his waist. C.T. believed defendant was “probably” holding a gun. A tape recording of a detective’s interview of C.T. was played for the jurors at trial.
T.B. went to his house after he heard the shots. C.T. saw defendant run to the corner. There, defendant got into a black Camry automobile. C.T. went back into his house to get his shoes. C.T. then returned to the house on Martin Luther King Boulevard. C.T. saw the three teens involved in a discussion of the missing bike at the house. Defendant was not present. L.M. went back to the corner of Pacific Coast Highway and Lime Street. L.M. found Mr. Gonzalez on the ground bleeding. L.M. attempted to help Mr. Gonzalez. The paramedics arrived thereafter. An autopsy performed on Mr. Gonzalez’s body revealed he died as the result of a gunshot wound to his chest.
Approximately one-half hour after the shooting, L.M. was taken by police officers to see a detained individual. The individual’s hair and clothing resembled that of the person who shot Mr. Gonzalez. L.M. was uncertain the detained individual was the man who shot Mr. Gonzalez. This was because the individual’s hair was no longer in a ponytail but was over his shoulders. L.M. also identified R.K. from a photographic lineup.
C.T. knew defendant only a few months prior to the shooting. Defendant was much older than C.T., who was only 13 at the time of the shooting. Defendant was also known by an alias. Defendant was the only one present on the night of the shooting with long hair. Defendant’s hair was tied back in a ponytail. C.T. did not see defendant again until the preliminary hearing in this case. C.T. believed defendant was hiding out. C.T. identified defendant’s photo from a photographic lineup. L.M. described the Asian man who got out of the car with a gun as having long hair, pulled into a ponytail.
T.B. was interviewed hours after the shooting. T.B. identified R.K. from a photograph display. T.B. told the police, “He is the one who pointed us out to the person who shot at us.” Later the same day, T.B. identified defendant’s photo, indicating, “He had the same hairstyle and skin color of the guy who got out of the car and shot.”
Detective Ciaran Crawford and a partner stopped a dark sedan with three Asian occupants shortly after hearing a radio broadcast regarding the shooting of Mr. Gonzalez. Defendant was seated in the right front passenger’s seat. Defendant was wearing his hair in a ponytail at the time. After he was handcuffed, defendant began sweating profusely. At the time of trial, defendant’s hair was cut shorter and he wore glasses. Los Angeles County Sheriff’s Senior Criminalist Christine Pinto examined a gunshot residue kit which was performed on defendant’s hands by the Long Beach Police Department. Ms. Pinto concluded the particles consistent with gunshot residue were present. Ms. Pinto believed the residue came from firing a firearm.
Long Beach Police Officer Russell Moss was called to the shooting scene. While there, Officer Moss spoke to Detective Crawford regarding the three individuals who had been detained based upon the radio broadcast. One of those being held had long hair and the two others had short hair. Because the field show up identifications were tentative, Officer Moss instructed the detectives to: fill out field identity cards; confirm the identities of those detained; and perform a gas residue kit on each of them. The three individuals, including defendant, were then released.
Detective Joe F. Pirooz was assigned as a gang specialist, with expertise in the area of Asian gangs. Detective Pirooz was familiar with the Asian gang to which defendant was a member. Detective Pirooz believed defendant was a member of the local Asian gang. Detective Pirooz had spoken with defendant in the past. Defendant admitted he was a member of the Asian gang. Further, defendant wore the gang’s tattoo. Defendant had two gang monikers. Detective Pirooz believed the shooting of Mr. Gonzalez was for the benefit of the Asian criminal street gang.
First, defendant argues that the prosecutor improperly utilized peremptory challenges to excuse two African-American prospective jurors. Although defendant originally objected to the use of three peremptory challenges against “African-Americans,” the third prospective juror was determined to be a Latina. The trial court did not request additional justification for her dismissal. Defendant does not question the third peremptory challenge on appeal. Defendant argues the prosecutor’s challenges reflected a group bias. Defendant argues this bias violated his state and federal rights to an impartial jury and equal protection. More specifically, defendant argues that the trial court improperly accepted the prosecutor’s explanations as race-neutral.
During voir dire, the prosecutor excused two African-American prospective jurors by means of peremptory challenges. No objection was interposed. As noted, a third individual was then peremptorily challenged. Defense counsel approached the bench to object. The trial court clarified that defense counsel was making the motion because the third prospective juror was African-American. Defense counsel responded, “That’s correct.” The trial court then noted for the record: “Let me just indicate that alternate No. 2 is Black and juror, the new juror 29 is also Black.... Other than the fact that alternate juror No. 1 is Black, the seated one, down the road, juror No. 29 is also Black. Juror 1929, the prospective juror 29, and alternate No. 2, 9936, is also Black.” The trial court then clarified that the prosecutor had excused juror Nos. 5763 and 7425 as well as alternate No. 1, No. 9847. The trial court found a prima facie basis for the motion.
Thereafter, the prosecutor, John Lonergan, noted that juror No. 7425 was a Latina. The trial court indicated: “She was very dark skinned. I won’t ask you to explain that one.” The prosecutor then explained as to juror No. 9847: “[S]he is single, no kids from Long Beach. Young, as the court can see, and I want the record to indicate I have used many challenges on young people that don’t have any, in my opinion, any real world experience. They are often students or just out of school or just recently working, and I think the court just needs to look at juror 9847, alternate No. 1 and come to the conclusion that she is, in my opinion, very young. I would estimate she is either in her late teens or early twenties. Her background would indicate that no kids, not married. [¶] She does have a criminal experience and this is my main reason, and she has a criminal trial that hung and, in her opinion, when asked, it was a difference of opinion. [¶] Your Honor, I don’t keep that, previous criminal jurors that are hung. I don’t keep young people.”
As to prospective juror No. 5763, Mr. Lonergan explained: “This is a woman who, first of all, the court had to wait five minutes before she realized she was being called. She didn’t have a clue as to her number. The court even called her name initially and didn’t get immediate response. We finally got her out of her chair, put in the jury box, and then we had to purposely direct her to the alternate chair. That’s just the beginning. She finally got to her seat... [¶]... [¶] She took a long time to respond. We finally got her up and then we had to put her in the appropriate seat. I would say she is older to me, 50 to 60. She has an accent which, in my opinion, I’m not sure what, which country. [¶]... [¶] I’m not saying she’s not American. I’m saying she has an accent like - - just like the judge questioned another prospective juror who was from Czechoslovakia. [¶]... [¶] Your Honor, I always look at jurors that are from a different country with a different judicial system, a different standard. But she’s got no jury experience. I didn’t like. I don’t. I looked at her. She doesn’t have a clue. I don’t know if she [sic] going to be able to follow the evidence. She couldn’t find her seat. [¶]... [¶] Out of I think probably 17 peremptories I have used with the main panel that we got, I used one on an African-American. In addition - - I’ll wait until the court makes a ruling.”
In denying the motion to discharge the panel, the trial court noted: “I find that there is a nonrace basis for the excuse, all of that juror. She was a little bit lost in the proceedings, and that she was nonresponsive, and I accept that as explanation by [the prosecutor] on why she was not kept. Given that there are other African-American jurors in the whole pool, and also that are prospective jurors, I think that that is a race neutral explanation. [¶] As to this last one, I also find that there is a race neutral reason. That specifically being that she sat in a hung jury, and I can understand, it’s been my experience as with most pros for who practiced in front of me, if a person has a hung jury and they say it is because the person refused to deliberate, a person refused to deliberate, they usually say it loudly because they are not the ones that refused to deliberate. [¶] They have experience that somebody else refused to deliberate, but when they say there is a difference - - honest difference of opinion as to the fact, I have noticed that most prosecutor’s believe that they could be the one that’s the holdout, and that’s the reason why they give that answer, that there is honest difference of opinion as to the facts in any case. I believe that that alone is sufficient basis, that is a nonrace basis and, therefore, the explanation is acceptable to this court that it is a nonrace reason why the jurors are being excluded.”
Our Supreme Court has held: “Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. (Batson[ v. Kentucky (1986)] 476 U.S. [79,] 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; [People v.] Wheeler[(1978)] 22 Cal.3d [258,] 276-277.) Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (People v. Bonilla (2007) 41 Cal.4th 313, 341; People v. Avila[ (2006)] 38 Cal.4th [491,] 541.)... [¶] The Batson three-step inquiry is well established. First the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. (People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Bell (2007) 40 Cal.4th 582, 596.)” (People v. Lenix (2008) 44 Cal.4th 602, 612-613; People v. Hamilton (2009) 45 Cal.4th 863, 898; People v. Lancaster (2007) 41 Cal.4th 50, 74; see also Johnson v. California (2005) 545 U.S. 162, 168; People v. Cruz (2008) 44 Cal.4th 636, 655.)
We review a trial court’s denial of a motion premised upon the improper use of a peremptory challenge with deference, examining only whether substantial evidence supports its conclusions. (People v. Lenix, supra, 44 Cal.4th at p. 613; People v. Bonilla, supra, 41 Cal.4th at pp. 341-342; People v. Burgener (2003) 29 Cal.4th 833, 864.) In Lenix, our Supreme Court held: “‘[T]he trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie “‘peculiarly within a trial judge’s province,’” [citations], and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].” [Citation.]’ [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 614, quoting Hernandez v. New York (1991) 500 U.S. 352, 364-365; Snyder v. Louisiana (2008) 552 U.S. ___, ___ [128 S.Ct. 1203, 1208].)
As set forth previously, we give great deference to the trial court’s denial of a motion premised upon the improper use of a peremptory challenge. (People v. Lenix, supra, 44 Cal.4th at pp. 613-614 [“We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.]”]; People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Avila, supra, 38 Cal.4th at p. 541.) Our Supreme Court has held that even where a prima facie case has been shown: “The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation.] ‘Jurors may be excused based on “hunches” and even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citations.]’ [Citation.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Box (2000) 23 Cal.4th 1153, 1186, fn. 6; People v. Turner (1994) 8 Cal.4th 137, 165; see also Purkett v. Elem (1995) 514 U.S. 765, 767.) Our Supreme Court recently held: “‘[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.’ [Citations.]” (People v. Bonilla, supra, 41 Cal.4th at p. 343; People v. Bell, supra, 40 Cal.4th at p. 598, fn. 3 [“Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.]”]; accord Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1198.)
Defendant argues that the prosecutor’s justifications were unsupported or contradicted by the record. We disagree. With respect to juror No. 5763, the record reveals that although she did respond to the general questions posed to all jurors, the prosecutor and the trial court noted that she did not immediately respond to directions and was “a little bit lost” during the proceedings. These observations relate to the prospective juror’s demeanor, which the record does not necessarily reflect. Moreover, as our Supreme Court has noted: “‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ [Citation.]” (People v. Hamilton, supra, 45 Cal.4th at p. 901, quoting People v. Reynoso (2003) 31 Cal.4th 903, 919.) The trial court’s ruling that the prosecutor’s challenge of prospective juror No. 5763 was not discriminatory is supported by substantial evidence. (See People v. Davis (2008) 164 Cal.App.4th 305, 315.)
Likewise, the trial court’s determination that the prosecutor’s challenge of prospective juror No. 9847 was not race based is supported by substantial evidence. Defendant argues that the trial court interposed its personal experience with jurors who had previously served on juries which were unable to reach a verdict. Defendant further argues that the prosecutor’s reasons were contradicted by the record of another juror who sat on a hung jury and was not peremptorily excused. The trial court noted prospective juror No. 9847 was on a hung jury where no verdict was reached because of a mere difference of opinion. By contrast, another juror, described his prior jury experience as the refusal of one person refusing to deliberate. The trial court merely agreed with Mr. Lonergan’s explanation as legitimate. In addition, Mr. Lonergan described the juror as very young, perhaps in her late teens or early twenties, explaining she did not have sufficient life or work experience. (See People v. Hamilton, supra, 45 Cal.4th at pp. 903-904 [exclusion of younger juror legitimate nondiscriminatory use of peremptory challenge]; People v. Reynoso, supra, 31 Cal.4th at p. 917.) These were legitimate reasons for excusing this juror, which did not deny defendant any constitutional right.
Second, defendant argues that the trial court improperly admitted the testimony of Detective Moss regarding the field show-up identification by eyewitnesses to the shooting. More specifically, defendant argues that Detective Moss’s testimony amounted to an improper opinion concerning guilt. As set forth earlier, Detective Moss was at the crime scene. Detective Moss communicated with Detective Crawford regarding the three individuals who had been detained based upon the radio broadcast of a dark sedan which was used by the perpetrator to flee the homicide scene. Detective Moss testified that immediately after he arrived at the crime scene, he learned two other detectives had detained a dark-colored Honda automobile occupied by three individuals who fit the description of those involved in the homicide. Defense counsel’s hearsay objection regarding what Detective Moss learned from the other detectives was overruled. The car was stopped approximately two miles away. However, Detective Moss had conflicting information that a white Jeep automobile was involved. Later, Detective Moss learned that one broadcast described the suspect automobile as a dark Honda. Detectives Poole and Crawford described the field show-ups they had conducted. Detective Moss testified that he learned, “[N]obody was saying they were a hundred percent sure, they were all given partials.” Mr. Lonergan inquired, “Were they termed as tentative I.D.?” Detective Moss responded, “Yes.” The prosecutor then inquired about Detective Moss’s subsequent review of the field show-up identifications, “[A]fter you learned or after you saw these I.D.’s, would you consider those tentative?” Detective Moss responded, “Absolutely not.”
Thereafter, defense counsel made a mistrial motion, “The People, what they have done is put Detective Moss on the stand to testify that the identifications were actually a positive I.D., and that in his opinion, as a veteran homicide detective, that the witnesses have identified the defendant as a killer.” The prosecutor explained: “Your Honor, I think it’s clear that I’m walking this detective through his investigation from beginning until end. This investigator is simply explaining decisions he made that will be called and used by the defense in order to say even the investigator let them go over the scene.... This is standard questioning with investigators to attempt to have them explain their decisions in the investigation and attempt why they went certain routes in the investigation and how certain evidence came about. The witnesses have already testified as to the I.D. I think it’s clear, and jury instructions will be even more clear for them on there to give it the weight it deserves.” In denying the mistrial motion, the trial court noted: “This would be a little bit different had we not heard the eyewitnesses testify and put the detective up first to lay the groundwork, but we already had the eyewitness testimony. It is what it is. All this is is to explain the detective’s conduct and what he did in the investigation. The eyewitness testimony is the eyewitness testimony. I don’t think there is vouching involved, and the reason why I overruled the hearsay objection... because it explains conduct, and this is exactly the reason why I overruled your hearsay objection. It is not because it is not hearsay, but it explains subsequent conduct.” Detective Moss then testified that he made a decision to release the three individuals based on the different descriptions of the cars involved and the partial identifications of those detained.
The California Supreme Court has held: “A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness’s testimony (Evid. Code, § 800, subd. (b)), ‘i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.’ [Citation.]” (People v. Hinton (2006) 37 Cal.4th 839, 889, quoting People v. Melton (1988) 44 Cal.3d 713, 744; see also People v. Farnam (2002) 28 Cal.4th 107, 153-154; People v. Williams (1988) 44 Cal.3d 883, 915.) We review the admissibility of opinion testimony for an abuse of discretion. (People v. Mixon (1982) 129 Cal.App.3d 118, 127; People v. Willis (1939) 30 Cal.App.2d 419, 423.) Detective Moss’s opinions were based on matters of common experience that did not require scientific knowledge. (Evid. Code § 800; People v. McAlpin (1991) 53 Cal.3d 1289, 1306-1308.)
Detective Moss was investigating a crime. He was performing those duties by gathering all relevant evidence both at the scene of the shooting and while in communication with Detective Crawford regarding the three individuals who had been detained. Detective Moss’s testimony explained why he authorized the release of the three individuals. It was only when he returned to the station that he could verify from the totality of the circumstances including the events surrounding the detention of the suspects in the car who committed the homicide and the certitude of the identifications. The trial court could, within the scope of its allowable discretion, admit Detective Moss’s testimony as a lay opinion testimony concerning the substance of the identifications in light of other facts determined later in the investigation.
In any event, even if Detective Moss’s testimony was improperly admitted, its admission was harmless. The testimony of three witnesses prior to Detective Moss’s testimony identified defendant as the likely killer. C.T. identified defendant from a photographic lineup as, “[T]he guy I saw running away holding his waistband.” T.B. identified defendant’s photo, indicating, “He had the same hairstyle and skin color of the guy who got out of the car and shot.” L.M. described the Asian man who got out of the car with a gun as having long hair, pulled into a ponytail. In light of the entire record, it is not reasonably possible that the jury would have returned a more favorable verdict but for the assumed error. (People v. Jablonski (2006) 37 Cal.4th 774, 833; People v. Ervin (2000) 22 Cal.4th 48, 103.)
Third, following our request for further briefing, the parties agree that the abstract of judgment should be corrected to reflect the trial court’s imposition a $20 section 1465.8, subdivision (a)(1) court security fee. Our Supreme Court has noted: “[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also §§ 1213, 1213.5, see People v. Mitchell (2001) 26 Cal.4th 181, 185.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, “[O]n its own motion, the reviewing court may order correction... of any part of the record.” (See also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.) The trial court is to personally insure the abstract of judgment is corrected to full comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is affirmed. The superior court clerk is to prepare a corrected abstract of judgment and forward it to the Department of Rehabilitation and Corrections.
We concur: MOSK, J., KRIEGLER, J.