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People v. Allen

California Court of Appeals, Second District, Second Division
Dec 3, 2009
No. B207282 (Cal. Ct. App. Dec. 3, 2009)



APPEAL from judgments of the Superior Court of Los Angeles County No. KA077356, Robert M. Martinez, Judge.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Scott Allen.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Dale McCool.

Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant Ryan Christopher White.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted defendants Anthony Scott Allen (Allen), Ryan Christopher White (White), and Joseph Dale McCool (McCool) of attempted murder (Pen. Code, §§ 187, 664) (count 1) and of assault by means of force likely to inflict great bodily injury (§ 245, subd. (a)(1)) (count 2). The jury found with respect to all counts that the offenses were hate crimes voluntarily committed in concert with another in violation of section 422.75, subdivision (b) (the hate crime allegation). The jury found with respect to White and McCool that they personally used a deadly and dangerous weapon (a knife) within the meaning of section 1192.7, subdivision (c)(23). White admitted a prior prison term allegation.

All further references to statutes are to the Penal Code unless indicated otherwise.

A fourth defendant, Chad Milson (Milson) entered into a plea bargain and testified for the prosecution.

The trial court sentenced Allen to 10 years in prison. The sentence consisted of the midterm of seven years for the attempted murder with an additional three years pursuant to the hate crime allegation. The trial court imposed and stayed under section 654 a six-year term for the assault.

The trial court sentenced White to 13 years in prison. The sentence consisted of the upper term of nine years for the attempted murder and an additional three years pursuant to the hate crime allegation. The trial court imposed a consecutive one-year term for the enhancement based on his prior prison term. The trial court imposed and stayed under section 654 an eight-year term for the assault.

The trial court sentenced McCool to eight years in prison. It imposed the low term of five years for the attempted murder and a consecutive term of three years due to the hate crime allegation. It imposed and stayed, pursuant to section 654, a term of six years for the assault.

Defendants appeal on the grounds that: (1) the trial court erred and violated their right to an unbiased jury by granting the prosecutor’s Batson/Wheeler motion and seating a juror who was the subject of a peremptory challenge by all three defendants; (2) the evidence was insufficient to support the guilty verdict for attempted murder with respect to Allen and McCool. Defendants join in all arguments raised by codefendants that accrue to their benefit.

Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).


Prosecution Evidence

On December 8, 2006, Charles Washington (Washington) and Kavis Knight (Knight) went to a liquor store at approximately 7:30 p.m. The liquor store was located near the intersection of the 10 freeway and Indian Hill Boulevard and was in a small shopping center with a Baker’s Square restaurant. Knight left the store first and went outside. When Washington went outside approximately a minute later he saw Knight and a group of approximately seven Caucasian men surrounding him. Washington heard a lot of arguing and yelling. To Washington, the men appeared to be skinheads because of their shaven heads, red suspenders, and construction-type boots. Washington walked around behind his car and then went up to the group and asked Knight what was happening. Knight said, “You see what they are trying to do?” Washington interpreted that to mean that he and Knight had to keep their “cool.” More of the skinheads came out of the Baker’s Square restaurant and approached them. Some of them were females. Washington heard someone shout, “We’re going to kill some niggers tonight. I.E. Peckerwood.” Washington knew that I.E. stood for the Inland Empire.

Since one of the defendants has the surname “White,” we use the term “Caucasian” to denote people of European ancestry, unless quoting directly from the record.

One of the men, whom Washington identified in court as Allen, kicked Knight in the leg. Washington remembered McCool being present, but he could not identify White. After kicking Knight, Allen confronted Washington, and Washington thought Allen was going to throw a punch. Washington decided to swing, but he missed and dropped to the ground. He tried to pick himself up but he was kicked. He fell down again, and the kicking became very intense. Washington curled up in a fetal position. He was being kicked all over his body, including in the head and back. He believed he was being stomped. As he was being stomped, someone in the group began stabbing him, and he was stabbed six times. Washington was in and out of consciousness. He remembered being taken by helicopter to the hospital. He had a concussion, but he was released the following day.

Knight said that when he left the liquor store he was approached by a Caucasian male who was gesturing to him. He identified this male as Allen. Knight thought Allen needed help and asked him what was going on. Allen began saying things about “White pride.” Knight asked him if he wanted problems, and Allen said he did. They began a verbal racial exchange. At that point, Washington came out of the store and asked what was going on. Knight explained, and Washington asked Allen why he wanted problems with his friend. Other men came and formed around them. The men were wearing suspenders, big boots and items that stood for “White pride.” There were about three men and two females that became involved. Knight took his shirt off and was ready to “fight for my pride, too” because he lived in that area and still does, and he did not believe he should run away. No fighting occurred, but there were many racial slurs.

Knight identified McCool as being present. Knight laughed at the Hitler pin McCool was wearing, and McCool kicked Knight in the leg. Allen tried to spit at Knight. Knight put his shirt back on because he believed nothing was going to happen, and then about eight more people came out of Bakers Square and it became more intense. Knight heard someone say, “We gonna kill us a nigger tonight.”

Knight moved closer to the liquor store and Washington moved out toward his car. One of the men tried to rush Knight, and Knight began swinging. He remembered hitting a female who also tried to rush him. Knight saw that Washington fell and “was swarmed.” Washington was being kicked “real bad.” Knight saw McCool as the last person to leave Washington, and he saw him down on one knee. He believed McCool stabbed Washington. Under cross-examination, Knight denied he was a gang member. He denied that he or Washington called out a gang name or threw a gang sign.

Eric Kraus is a parole agent with the California Department of Corrections who investigates cases involving Caucasian supremacist groups, or skinheads. He testified as an expert on these groups. Skinheads wear lace-up boots with red or white laces and suspenders that are usually red or white. They wear polo shirts and bomber jackets that often display pins and flags that reflect their ideology. The red laces mean they have drawn blood for their cause. Their ideology consists of hatred of non-Caucasians, and they are usually anti-Semitic also.

Skinheads often have tattoos, and the most popular tattoo they acquire is a swastika. Next in popularity are the numbers 14 and 88. The number “14” refers to the 14 words taken from an essay by David Lane (Lane), which are “We must secure the existence of the White race and a future for White children.” Lane was a founding member of an organization called “The Order.” The number 88 refers to the eighth letter of the alphabet, “H,” and refers to the words “Heil Hitler.” The number “88” also refers to Lane’s manifesto, “The 88 Precepts.” The manifesto encourages Caucasian people to overthrow the government and create a Caucasian-only nation. It also gives advice, such as to keep the race pure by not using narcotics or alcohol. Skinheads also tattoo the word “skin” or “skinhead” on their bodies.

If a group of skinheads comes into conflict with a member of another race, there is often, at minimum, a verbal altercation, with the possible use of racial slurs. There may be escalation and some type of active violence, such as an assault or a battery. In his experience with the skinhead movement, Kraus had seen that they had courage in numbers. The men like to wear big boots, and when they attack someone, it is called a boot party.

Kraus identified a photograph of a shirtless defendant White, which showed a swastika tattoo in the middle of his chest. Among other tattoos, White had one of the sole of a boot on his inner arm, the number 14, the number 88, and a death head, or “totenkopf,” which was a symbol of the German military division that ran the concentration camps. Kraus identified a Nazi flag and T-shirts with skinhead symbology and words on them that were found in White’s home.

Kraus identified a picture of McCool that displayed his tattoos, which included the numbers 14 and 88. The words “white” and “pride” were tattooed on his arms and the words “skin” and “head” were tattooed on his knuckles. McCool also had tattoos of an iron cross, a skinhead figure, and a swastika. A computer taken from McCool’s home showed a red flag with an iron cross and a swastika.

Kraus identified a photograph of the back of Allen’s shaved head, which showed the word “skin” tattooed there in large letters. Kraus identified a photograph of Allen wearing a bomber jacket with a background of a Nazi flag. There was also a picture of Allen giving the one arm salute associated with “Heil Hitler.”

Kraus explained that “The Order” was a group of Neo-Nazi Caucasian supremacists that operated in the 1980’s. It was classified as a domestic terrorist group. Their most prominent assassination was of a Jewish talk show host named Allen Berg. Although the movement is defunct, there is a new movement called “Free the Order.” Its aim is to raise money to aid the members of the Order who are in custody. In December 2006, there was a scheduled rally at the federal courthouse in the Westwood area of Los Angeles to demonstrate on behalf of Order members. Kraus identified photographs taken at the rally that showed skinheads throwing up the Heil Hitler salute and surrounded by a banner reading “Free the Order.”

Chad Milson (Milson) was good friends with McCool and had met White and Allen a year before the rally. Milson described himself as a Nationalist rather than a skinhead. He has tattoos of an iron cross and “Rolling 7’s” on each side. The numbers represented God’s power over the devil. The symbol was also called a Triskelion and was used by Caucasians in South Africa when the “Blacks started to kick them out.” He was familiar with the precepts and symbols of the skinheads described by Kraus.

On December 8, 2006, Milson and several others, including Kristen Bigham (Bigham), formerly Kristen Davis, and Allen gathered at White’s house in Joshua Tree. They were going to drive to San Fernando, meet other people, and go to the Free the Order march on December 9, 2006. There were about eight male Caucasians and some women in their group. They all set off in three vehicles.

McCool rode in a red Nissan with several people, and Milson drove others, including Allen, White, and Jesse Vanderpool (Vanderpool) in his Silverado truck. Three more people and a baby rode in a red Suzuki. Milson knew there were two knives in his truck, and he had seen Vanderpool showing them to people before they got on the road. All three vehicles stopped at a Baker’s Square restaurant in Claremont so that people could use the bathroom. Milson sat in the bed of his Silverado while some of the men entered the Baker’s Square restaurant, and Allen went over towards the liquor store that was next door. As Allen was approaching the entrance, a tall Black male, later identified as Knight, walked out of the liquor store. Milson knew Allen said something to the man because he saw Allen’s mouth moving. Allen and Knight continued talking and moved to the side. The men who had gone into Baker’s Square restaurant came out and walked over to Allen and Knight, whose voices had become louder and who began gesturing, as if their conversation was becoming more heated. Among the men who walked over were Robert Poutre (Poutre) and McCool. It seemed that Knight took offense at something. At that point, a shorter man, later identified as Washington, came out of the liquor store carrying a bag. Washington looked shocked. Washington put his bag in his car and then joined Knight.

Knight, Allen, McCool, and Poutre began moving toward the rear of Washington’s car. When Washington joined his friend, the two men faced Allen, McCool and Poutre. Knight took his shirt off and so did Allen. Vanderpool joined his companions and kicked Knight in the leg. At that point, Washington said to Vanderpool, “You and me, one on one.” Vanderpool and Washington squared off to fight and Allen and Knight did also. Milson remained in his truck with most of the women and the baby who had come along. As the two pairs of fighters danced around and got a feel for each other, White returned to Milson’s truck and grabbed a knife from the backseat. Bigham, White’s girlfriend, went over to the fight.

Milson stopped watching the action to ask the baby’s mother to put the child in the car. When he turned back around, Washington was on the ground and Knight was in front of the liquor store. Washington was being kicked by Milson’s traveling companions. Milson saw Allen and McCool kicking. A car screeched its tires nearby and drew Milson’s attention. His traveling companions then ran up and piled into the vehicles. Milson and the other two drivers left. Allen and White were in Milson’s Silverado, and everyone was “freaking out.” White said he stabbed someone twice, and he sounded rather scared. When he asked what he should do with the knife, no one answered. Milson believed White tossed the knife out the window because he heard a metallic sound. They continued on to San Fernando as planned and stayed overnight.

The next day they all went to the march. At the parking structure in Westwood, police officers lined them all up and began handcuffing them. They were held there for a few hours until the Claremont police arrived with a van and arrested some of them, including Milson. He pleaded no contest to being an accessory after the fact and was sentenced to a year in jail and three years’ probation. He promised the court that he would testify truthfully and accurately.

Dorian Logue (Logue) stopped by Baker’s Square restaurant on the evening of December 8, 2006. He saw some men squaring off to fight and a group forming. He saw more people joining the group and realized they were in attire “suited for an Aryan nation type group of people.” They wore jeans, T-shirts, suspenders, bomber jackets, and work boots. There were some girls with the group also. Logue heard slurs being shouted, such as “fling nigger” and either “I’m going to show you my power” or “I’m going to show you White power.” He also heard “NLR” or “Nazi Low Rider.”

Logue got out of his car and screamed that he was the “Claremont P.D.” and pulled out his cell phone. Logue saw Washington fall down after he was hit in the back of the head or in the shoulder by one of the men. The men began kicking and hitting Washington and “taking their time” doing it. “They were stomping the mud all in him.” Logue thought that one of the men was trying to get in Washington’s pocket and rob him, but “what it was is that the guy had a knife and was shoving it in him.” Logue did not see anyone leave the group until the girls shouted, “He’s the police... [l]et’s leave now.” One of the girls yelled at the guys to hurry up and run, and the members of the group, one by one, started to come away from the person later identified as Washington. Logue noticed a woman getting the license plate numbers, and he saw Knight run away. Logue approached Washington and saw he was unconscious and bleeding badly from the buttocks, leg area, and the back.

Christina Havens (Havens) was having dinner with her mother at Baker’s Square restaurant on the night of the incident. When she left and went to the parking lot she saw a group of about a dozen people yelling. She asked the manager to call 911, but he would not. She went to her mother’s car, which was near the altercation, and saw that there was a man on the ground that was being kicked and attacked by a group of about four people. She ran toward the altercation. She tried to use herself as a physical barrier to keep the men from attacking the man on the ground. It was then that she realized it was a Black man on the ground and that the attackers were Caucasian males with shaved heads and suspenders. She realized they were skinheads and it was not just a random fight. Four to six men were viciously kicking the man on the ground, who was in a fetal position. She screamed at the men to leave him alone. Another bystander was shouting that he was the police. The men turned and ran towards their vehicles. Havens got the license number of one of the vehicles -- a full-size pickup. All the vehicles left hurriedly. She saw that Washington was bleeding profusely. The paramedics arrived and began working on the victim, and Havens realized the victim had severe stab wounds. Havens gave the license number she had memorized to a police officer, and the license was traced to Milson.

Noble Robinson (Robinson), a paramedic who arrived at the scene, saw that Washington had sustained significant blood loss and was in serious condition. Based on his injuries, Robinson determined that the victim had to be flown to a trauma center.

Officer Dennis Smith of the Claremont Police Department arrived on the scene and recovered a black T-shirt bearing the words, “Storm Troop 16” and a swastika and eagle emblem. He also found a knife in the center median along Indian Hill Boulevard in the direction the men had fled the scene. The knife had a five-inch blade and was commonly called a buck knife. Blood on the knife was later found to be that of Washington’s. Blood found on McCool’s left shoe was also determined to be Washington’s.

Havens identified White in court as the man she tried to prevent from kicking Washington. She also identified him in a photographic lineup. She also identified McCool in court as being present at the attack.

Defense Evidence

Dexter Coleman, a good friend of McCool’s, is bi-racial: African-American and Caucasian. McCool had never spoken of racial hatred in Coleman’s presence, and Coleman had never seen him display negative behavior toward African-Americans. The charges against McCool were inconsistent with the man Coleman knows.

Bigham said she was hit on the head by a large African-American male on December 8, 2006, when he approached her as she stood by a car. She fell and suffered a swollen cheek, sore jaw, an injured ear, and a cut on her ear. Before the assault she remembered two African-American males loudly saying “J-Roc,” “C-Roc,” or “Du-Roc” and making some kind of sign with their hands, which she believed to be gang signs. Bigham was afraid.

Bigham did not hear the men on trial yelling racial things toward the Black men. She did not see them try to kick or punch the two Black men. Bigham is not a racist or a skinhead. On cross-examination, Bigham said she was arrested at UCLA because she had a warrant for failing to comply with the terms of probation. She was on summary probation for false impersonation. She stated that White was her boyfriend at the time of the incident. She did not know if White was a skinhead, nor did she know the meaning of his tattoos. White never expressed a dislike for Black people to Bigham.

Corporal Jason Walters of the Claremont Police Department suggested to Bigham that Washington and Knight might be gang members as an interview technique. Walters checked the Claremont police records and found no record of Washington and Knight ever being gang members.

Shavon Hawkins was Knight’s ex-girlfriend. She lived with him up until four and a half years before trial. She knew Knight to be a member of the Du-Rock gang from North Pomona. His moniker is Cat Daddy. Washington is also a member of the gang, and his moniker is House. She knew them to be with the same clique because of the stories they shared with each other. On cross-examination she said they were not gangsters but former gang members.

Rebuttal Evidence

Michael Lange, a detective with the City of Pomona, ran a check on Washington and Knight in the CalGang database. No records were found indicating that they were gang members.

Rusty Edwards (Edwards) was a witness at the scene. He saw a group of Caucasian males with shaved heads attack two Black guys. He was afraid to get out of his car when he saw the skinheads because they “don’t like [anyone] but White people,” which he is not. There were 10 to 12 skinheads, and Edwards heard one of the Black men say to them, “We ain’t got no problems with you.” Edwards honked his horn hoping to stop the beating of the two Black men. He saw one Caucasian male run from the cars to the pack of skinheads, and Edwards believed the man had a knife in his hand. The skinheads were kicking the man on the ground. The attackers ran when police sirens were heard.


I. Prosecutor’s Batson/Wheeler Challenge

A. Defendants’ Arguments

Defendants contend that the trial court prejudicially erred in granting the People’s Batson/Wheeler motion where the joint peremptory challenge exercised by the defense was for legitimate nonracial purposes, and the challenged juror should have been excused. The trial court failed to meet the three-step Batson analysis and erred in finding that the challenge of Juror No. 17 amounted to purposeful racial discrimination. The trial court’s findings are not entitled to deference, since each of the justifications set forth by the defense was race-neutral. The trial court substituted its judgment for that of all three trial counsel, and this is not the proper role of the trial court. Defendants were denied their constitutional right to a fair trial by impartial jurors, and their convictions must be reversed.

We do not address the alternative argument made in opening briefs and at oral argument that race was an integral part of defendants’ trial, and that this reality could not be ignored in jury selection. We find this argument to be incomplete, since appellate counsel made no suggestion as to how this factor should have influenced the trial court’s ruling in light of the constitutional prohibition against using peremptory challenges to remove prospective jurors based on their membership in a particular racial group.

B. Proceedings Below

In response to the standard voir dire questions, Juror No. 17 said she lived in San Dimas and was single with no children. She was a retired clinical laboratory technologist and had served twice on juries, one civil and one criminal (murder). Both juries had reached verdicts. She had no family or friends in law enforcement and had no concerns.

The trial court had asked each juror to relate any concerns they had on any issue: “subject matter,” time estimate, or any other issue.

The trial court asked whether any jurors had concerns about their ability to apply the presumption of innocence, and “two gentlemen” raised their hands. The trial court asked if any jurors had concerns about being able to be fair and objective, and Jurors Nos. 11 and 14 raised their hands. Juror No. 11 said she was an African-American female and did not know if she could be fair. Juror No. 14 said he had experienced a confrontation with skinheads in Washington, D.C. The trial court asked for a show of hands from anyone who had heard about the incident and Jurors Nos. 6, 12, 11, 13, 14, and 17 (the juror at issue) raised their hands. When the trial court asked if any of the jurors remembered more information than what the court had already discussed, there was no response. The trial court asked each juror to relate their reaction when they heard that the case involved a hate crime allegation. Juror No. 17 said, “It was disturbing, but people have a right to their thoughts. But when they take those thoughts to a physical, that’s why we have the court system and that’s why we’re here.” When given the opportunity to ask questions of certain jurors, none of the three defense lawyers questioned Juror No. 17.

The defense challenges for cause were heard, and Juror No. 17 was not challenged by the defense. When given the opportunity for the first peremptory challenge, the prosecutor accepted the jury as constituted. The defense exercised several peremptories, including one on Juror No. 9, who was replaced by the juror at issue in this case. The trial court then turned to the jurors who were outside the box and asked the standard questions. Afterward, several jurors were dismissed for cause and the peremptories began again.

Even though Juror No. 17 became Juror No. 9, we continue to refer to the juror at issue as Juror No. 17, just as the parties have done in their briefs.

Allen’s counsel, Gary Meastas (Meastas) exercised a peremptory challenge to Juror No. 17, who was African-American, and the prosecutor asked to approach. At sidebar the prosecutor stated, “There may be a good reason to throw this juror off, but I don’t know what it is.” Meastas replied that he had picked lots of jurors but had heard very few say they were disgusted about the charge. Also, the juror had read prior accounts of the case. Most of the jurors had no knowledge whatsoever, but she did. McCool’s counsel, Pamela Tedeschi (Tedeschi) said that the juror used the word “disturbing” when asked about the “N” word. She said the juror was not forthright and did not offer anything more when Tedeschi gave her an opportunity to explain it. White’s counsel, Rudolfo Aguirre (Aguirre), concurred with his fellow defense attorneys.

Meastas later told the court it was a joint challenge for which he was the spokesperson.

The prosecutor responded that “the reaction of disturbing or disgusted is reasonable in this case. The charges are disturbing and I don’t see anything abnormal about that at all. She didn’t say that she remembered anything or prejudiced her or impacted her [sic]. There’s nothing wrong with somebody having perhaps heard something about the case.”

The trial court stated, “There was nobody in the courtroom who indicated that they read or recalled anything about this case that was different that I had related to them here in court. I don’t believe that is a sufficient basis. I don’t believe that having read something about this case that was of no more detail than what I exposed is a basis for a challenge for cause. I think, also, that if someone characterizes the things that you have talked about and the specific views of an offensive word as disgusting, that can’t be a basis for it either because then the expected response would be approval. I’m going to find that there’s been an adequate showing that the challenge has not been race neutral.”

Meastas asked the court to review Juror No. 17’s responses in light of what the other jurors said. He insisted that Juror No. 17 had one of the strongest responses. The trial court stated, “And the reason for that probably has something to do with her race because someone who has had that word used about them who is not a member of that group I would think would not be as affected as an individual who is a part of that group.” The court found an improper exercise of a peremptory challenge and noted that the case authority authorized the quashing of the panel or another remedy. The prosecutor stated he did not want the trial court to quash the panel, and the trial court seated Juror No. 17.

On the following day, the trial court stated it had reviewed the prior day’s proceedings and had found, from a totality of the circumstances, that a reasonable inference had arisen that the basis of the joint peremptory challenge was Juror No. 17’s race. The trial court reiterated counsel’s reasons for the challenge: that the juror had some prior information about the event as a result of media coverage, and that she characterized the hate crime or the use of the “N” word as disgusting. The trial court noted that, once several jurors had identified themselves as having read about the case, Juror No. 17 was not asked any further questions about the pretrial media information. In addition, Juror No. 8, who was still in the box, also indicated disgust with the hate crime and use of the “N” word. She said the word had no purpose and she did not like it. And there were no follow-up questions by any counsel to Juror No. 17 about her characterization of disgust toward these words. Juror No. 17 did not raise her hand when the group was asked if anyone was affected by the nature of the charge and the allegation to the degree that they could not be fair and objective. Nor did she raise her hand when the trial court asked if there was anyone who had concerns about being able to abide by the presumption of innocence. Also, Juror No. 17 did not indicate to the court that she had any recollection of media information over and above what the trial court had revealed during voir dire. The court had not given the attorneys a time limit for questioning, yet “virtually no questions were directed to this juror specifically or did any of her responses to group questions raise any other areas of concern.”

Tedeschi stated that Juror No. 8 was one of the first who was excused (and thus was not still in the box as the trial court had stated). Juror No. 8 was a Hispanic female who said she was disgusted and saw no purpose of it, meaning hate towards another race. Tedeschi pointed out that Juror No. 17 said it was disturbing but people have a right to their own thoughts. Tedeschi believed the juror was very inconsistent. This inconsistency seemed to show an implied bias that the juror was not admitting for whatever reason, and the defense did not believe the juror could “hold both those thoughts on balance.” The juror’s unwillingness to share anything further was also inconsistent in Tedeschi’s view. In addition, “she seems to have -- I won’t say she’s staring in a menacing way, and she does stare, and it may be my seating position because I’m directly across from her, but I just find her very contained, almost like she’s controlling not to respond. That concerns me as well. Other jurors at least will have a facial expression or raised eyebrow. They’ll shift in their chairs. She’s sitting there rigidly.”

Aguirre told the court that counsel believed the publicity issue to be a sensitive one, and noted that five other jurors were removed in part for that reason. Counsel believed it was dangerous, and that a juror with prior knowledge could eventually taint the remaining jurors. The trial court replied that Juror No. 4 had also said he or she had been exposed to publicity, and that juror was still on the panel. Meastas said that he had notes about some of the people the court had said were still on the panel despite their responses, and he said he had planned to remove them from the jury. The court stated it was aware that juror selection was not over, and it had based its decision on what had already occurred. The trial court cited People v. Gray (2001) 87 Cal.App.4th 781 for the proposition that a trial court can find an improper exclusion of jurors based on group bias even if only one person from that juror’s group is excused. Voir dire then continued.

C. Relevant Authority

It is well settled that the use of peremptory challenges to remove prospective jurors for the sole reason of a presumed group bias based on membership in a particular racial group violates the state and federal Constitutions. (People v. Reynoso (2003) 31 Cal.4th 903, 913-914; Wheeler, supra, 22 Cal.3d at pp. 276-277, overruled in part by Johnson v. California (2005) 545 U.S. 162, 170 (Johnson); see Batson, supra, 476 U.S. at pp. 84-89.) Wheeler set out a three-part procedure for the evaluation of a party’s claim that his or her opponent is improperly using peremptory challenges for a discriminatory purpose. The party must raise a timely objection and “make a prima facie case of such discrimination to the satisfaction of the court” by first making “as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.” (Wheeler, supra, at p. 280, fn. omitted.) Wheeler’s third step required the party to show a strong likelihood that the challenged jurors were being excused because of their group association. (Ibid.) Johnson found this standard overly stringent and held that the moving party must simply “‘produc[e] evidence sufficient to permit the trial judge to draw an inference’” of discrimination. (People v. Carasi (2008) 44 Cal.4th 1263, 1293, citing Johnson, supra, 545 U.S. at p. 170.)

When confronted by a Wheeler motion brought by either side, the court first determines whether the objecting party has made the required prima facie showing. If the trial court so determines, the opposing party must attempt to show nondiscriminatory reasons for the challenge at issue, and the court then determines whether “‘“purposeful discrimination”’” has occurred. (People v. Ward (2005) 36 Cal.4th 186, 200.) The court must undertake an inquiry into counsel’s explanations and make findings as to their subjective genuineness, not on the objective reasonableness of the reasons. (People v. Reynoso, supra, 31 Cal.4th at p. 924.) If the Wheeler objection is sustained, either the entire panel must be replaced, or, with the consent of the moving party, the court may order that the challenged juror serve on the jury and continue jury selection with the same panel. (People v. Willis (2002) 27 Cal.4th 811, 817-824.)

In ruling on a Wheeler motion, the trial court must make “a sincere and reasoned attempt to evaluate the [party’s] explanation in light of the circumstances of the case as then known, [its] knowledge of trial techniques, and [its] observations of the manner in which the [party] has examined members of the venire and has exercised challenges for cause or peremptorily....” (People v. Hall (1983) 35 Cal.3d 161, 167-168.)

An appellate court reviews the trial court’s findings for substantial evidence, exercising “great restraint.” (People v. Arias (1996) 13 Cal.4th 92, 136.) It gives “‘great deference’” to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Reynoso, supra, 31 Cal.4th at p. 908; Turner, supra, 8 Cal.4th at p. 165; see also People v. Jurado (2006) 38 Cal.4th 72, 104-105.) However, this deferential standard applies only where the trial court has made a “sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror.” (People v. Jurado, supra, at pp. 104-105; People v. Silva (2001) 25 Cal.4th 345, 385-386; accord, People v. McDermott (2002) 28 Cal.4th 946, 971.)

D. Batson/Wheeler Motion Properly Granted

At the outset, we note that Rivera v. Illinois (Mar. 31, 2009, No. 07-9995) ___ U.S. ___ [129 S.Ct. 1446, 1453-1454], cited by respondent, addressed a due process claim rather than a group bias claim and is therefore not dispositive of the instant case. (Id. at pp. 1450, 1452.)

Having reviewed the record on appeal, we find substantial evidence in support of the trial court’s ruling. (People v. Arias, supra, 13 Cal.4th at p. 136.) By asking the defense to explain its reasons for the challenge, the trial court implicitly found the prosecutor had established a prima facie case. (People v. Jurado, supra, 38 Cal.4th at p. 104.) We believe, unlike defendants, that the trial court’s findings are entitled to deference, since the trial court clearly made a “sincere and reasoned attempt” to evaluate counsels’ reasons for exercising a challenge to Juror No. 17. (People v. Silva, supra, 25 Cal.4th at pp. 385-386.)

It is true that Juror No. 17 was one of the jurors who raised her hand to indicate she had read or heard something about the incident in this case. There were six of these jurors, and Juror No. 17 was the last of these six to be excused. The others were clearly excused for reasons other than their prior knowledge. One of the others had been excused by the People in a peremptory challenge (Juror No. 6). One of them, Juror No. 14, had expressed concern about his ability to be fair and objective in light of what was alleged. Juror No. 14 had experienced some sort of confrontation with skinheads and said his experience made it “tough” for him to serve on the jury. He was excused for cause by the defense. Juror No. 11 obviously was excused for her insistence she could not be fair and her statement that, as an African-American, she abhorred the “N” word. Juror No. 12 was excused with a peremptory challenge. Juror No. 12 had said he was “bothered” by the charges and had read a lot and recently viewed television programs about the Neo-Nazi group being “antiracist.” Juror No. 12 also told Tedeschi that he had concerns about the “N” word. Juror No. 13 was “stunned” by the charges, and said she worried about future retaliation against jurors by skinheads or Neo-Nazis if the trial reached a conclusion they did not like.

It is significant that no questions were asked of Juror No. 17 by any of the defense attorneys, even though Tedeschi questioned the jurors at length after the prosecutor had completed his questioning. Meastas asked no questions at all, but Aguirre asked personalized questions of several jurors based on their responses to the general questionnaire and their stated reactions to the charges. It is as if the attorneys did not need to ask any questions of Juror No. 17 because they knew they did not want her on the jury, regardless of any responses she might make.

Notably, Juror No. 17’s response to the questions about the charges showed remarkable fairness. Although she thought the circumstances were disturbing, she said that people have a right to their thoughts. It is when they act upon these thoughts in a physical way that people must have recourse to the court system. Rather than being an inconsistency, as Tedeschi alleged, this attitude bespeaks nothing so much as tolerance and an open mind. As far as the supposed rigidity and self-control in Juror No. 17’s demeanor, there was no comment on this from the other defense attorneys, the court, or the prosecutor. Tedeschi had every opportunity to question Juror No. 17 and test her willingness to reveal herself, but she did not. The attorneys appeared to ignore Juror No. 17 until they exercised a peremptory challenge against her. Based on this record, the trial court properly could conclude defense counsel’s exercise of peremptory challenges had been racially motivated.

The trial court may have made certain mistakes in its notes regarding the jurors. It appears that Juror No. 8 was indeed the person who said she was disgusted and saw “no purpose for it,” and this juror was excused before Juror No. 17. Tedeschi corrected the court on this point and the court did not change its ruling. But, as we have pointed out, other jurors used the word disgusting and similar words, yet they were retained. Juror No 1. used the word “disturbing,” just as Juror No. 17, and was retained. Other jurors were “offended,” or found the charges “disturbing,” or were “sad,” “stunned,” or “bothered.” At least three other jurors used the word “disgusted.”

In sum, substantial evidence supports the trial court’s ruling. Even when “two or more inferences can reasonably be deduced from the facts,” a reviewing court examining the record for substantial evidence “is without power to substitute its deductions for those of the [trier of fact].” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Because the trial court was “in the best position” to observe counsel as they exercised challenges, its determination “is entitled to ‘great deference’ on appeal.” (People v. Reynoso, supra, 31 Cal.4th at p. 926, quoting Batson, supra, 476 U.S. at p. 98, fn. 21.) Defendants’ arguments are without merit.

II. Sufficiency of the Evidence to Support the Attempted Murder Verdicts (Allen and McCool)

A. Arguments

Allen argues that there was insufficient evidence to support the jury’s finding that he was guilty of attempted murder under the theory that the attempted murder was the natural and probable consequence of the assault. Allen asserts there was no evidence from which the jury could conclude he knew or should have known that one of the men in his group had a knife, or that he encouraged the stabbing or was aware it might take place. McCool adopts Allen’s arguments and also asserts that the evidence was insufficient to support a finding that McCool had the intent to kill the victim.

B. Relevant Authority

The standard of appellate review for sufficiency of the evidence was set out in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.) “[S]ubstantial evidence” is evidence that is “reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.)

Given this court’s limited role on appeal, defendants bear an enormous burden in claiming there was insufficient evidence to sustain the verdicts. If a verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Alcala (1984) 36 Cal.3d 604, 623.) “‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’”’” (People v. Stanley (1995) 10 Cal.4th 764, 793.)

“Both aiders and abettors and direct perpetrators are principals in the commission of a crime. Penal Code section 31 defines ‘principals’ as ‘[a]ll persons concerned in the commission of a crime,... whether they directly commit the act constituting the offense, or aid and abet in its commission....’ (See Pen. Code, § 971 [‘all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals....’].)” (People v. Calhoun (2007) 40 Cal.4th 398, 402.)

A defendant can be liable as an aider and abettor in two ways. “First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)

However, “‘the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.’ [Citation.]” (People v. Calhoun, supra, 40 Cal.4th at p. 402.)

The natural and probable consequences doctrine applies when “an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense).” (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) When the evidence triggers the application of the natural and probable consequences doctrine to an aider and abettor, “the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (Id. at p. 262, fn. omitted; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 8.) The question is not the defendant’s subjective state of mind, but rather, “whether, under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531 (Nguyen).)

In determining reasonable foreseeability, “consideration is not restricted to the circumstances prevailing prior to or at the commencement of the endeavor, but must include all of the circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of the crime. [Citation.]” (Nguyen, supra, 21 Cal.App.4th at p. 532, fn. omitted.)

C. Evidence Sufficient

Defendants were not tried solely on the theory of natural and probable consequences as Allen’s arguments imply. The prosecutor told the court he was proceeding on two theories for attempted murder. One was by means of vicarious liability. The second one was direct liability for the kicking and stomping. The jury received instruction on both aiding and abetting (CALCRIM Nos. 400, 401) and on the theory of natural and probable consequences (CALCRIM No. 401). The prosecution told the jury that it could find the defendants guilty of attempted murder by finding that they aided and abetted the perpetrator of the assault and attempted murder or that the attempted murder was a natural and probable consequence of the assault that they all participated in, which made them aiders and abettors of the attempted murder.

We conclude sufficient evidence supports the verdicts. With respect to the kicking and stomping, there was sufficient evidence of defendants’ intent to kill to be drawn from this vicious act on a defenseless victim in which they participated as both aiders and abettors and direct perpetrators. (People v. Calhoun, supra, 40 Cal.4th at p. 402.) There was evidence that when his cohort skinheads joined Allen, one of them said, “We gonna kill us a nigger tonight.” The men then attacked Washington when he and Knight were separated. The threat and the circumstances of the beating by at least four men against one who was lying on the ground, as well as the nature of the beating, which consisted of multiple kicks to the head with steel-toed shoes, support the inference that defendants had the intent to kill Washington. There was evidence that the boots Allen was wearing when arrested had metal screws imbedded in the bottom, leading to the inference he had them on the night before, during the attack. “A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.]” (Nguyen, supra, 21 Cal.App.4th at p. 531.) The criminal purpose of the act need not be announced or communicated, since it may be apparent from the circumstances. (Id. at pp. 531-532) “Aiding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” (Id. at p. 532.) “[A]ny person concerned in the commission of a crime, however slight that concern may be, is liable as a principal in the crime [citations]....” (Ibid.)

Washington’s condition suggests he might have died had not bystanders intervened and had the police not sounded their sirens. Washington stopped moving and made no attempt to block the kicks after a certain point. Havens discovered she was standing in a pool of Washington’s blood when she approached him and saw he was bleeding profusely. The paramedics confirmed that he had lost a significant amount of blood and was in serious condition. He lost consciousness and had to be airlifted to a trauma center. Although Washington was released from the hospital shortly, he stated he suffered a concussion from being kicked in the head.

With respect to Allen in particular, the evidence showed he actually instigated the attack by making racial remarks to Knight when Knight came out of the liquor store. Washington described Allen as the ringleader and stated that everyone acted as if Allen was in charge. And although McCool was wearing tennis shoes rather than steel-toed boots, his tennis shoes had blood on them, and he admitted to kicking Washington. “[P]roof of the aider and abettor’s intent may be made by way of an inference from [his] volitional acts with knowledge of their probable consequences.” (People v. Beeman (1984)35 Cal.3d 547, 559-560.)

Moreover, “evidence of motive is often probative of intent to kill,” (People v. Smith (2005) 37 Cal.4th 733, 741), and the jury heard Kraus testify that skinheads have a hatred of non-Caucasians and look down on members of other races. Skinheads often proceed from animosity and racial slurs to active violence, such as “boot parties,” and they display courage in numbers. And, as noted previously, “‘When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.’” (People v. Calhoun, supra, 40 Cal.4th at p. 402; see also People v. Felton (2004) 122 Cal.App.4th 260, 268.) The totality of the evidence clearly shows that both Allen and McCool were among the direct perpetrators of the kicking and stomping that took place.

Allen’s defense was essentially that he was merely present. He also attempted to show that Knight instigated the fight by knocking Bigham to the ground, that the severity of the stomping was exaggerated, and that Milson was not credible. McCool’s defense was that he kicked Washington, but only with tennis shoes and merely to stop him from getting up. He did this because Washington had reached under his shirt as if he had a firearm, and a female member of their group had already been knocked to the ground. McCool also portrayed Knight and Washington as gang members and argued that he was misidentified, his tattoos were old, and they were not indicative of a hatred of other races. The jury clearly did not believe defendants and drew reasonable inferences from the evidence in order to arrive at their verdicts.

With respect to the theory of natural and probable consequences, it is well established that “[f]or a criminal act to be a ‘reasonably foreseeable’ or a ‘natural and probable’ consequence of another criminal design it is not necessary that the collateral act be specifically planned or agreed upon, nor even that it be substantially certain to result from the commission of the planned act. For example, murder is generally found to be a reasonably foreseeable result of a plan to commit robbery and/or burglary despite its contingent and less than certain potential. [Citations.]” (Nguyen, supra, 21 Cal.App.4th at p. 530.) However, “the collateral criminal act [must be] the ordinary and probable effect of the common design,” rather than “a fresh and independent product of the mind of one of the participants, outside of, or foreign to, the common design. [Citation.]” (Id. at p. 531.)The effect of the group attack on Washington, with a common design to victimize and punish someone because of their race, and which inspired one member of the group to use a lethal weapon on the victim, was “ordinary and probable.” The stomping was ferocious and the ethnic slurs relentless according to witnesses. Defendants halted their attack only upon realizing that police were on their way. The determined perpetrator’s use of a weapon at hand, one of the knives in the truck, was not necessarily foreign to the common design.

Finally, we disagree with defendants that People v. Montes (1999) 74 Cal.App.4th 1050 (Montes) and People v. Godinez (1992) 2 Cal.App.4th 492 (Godinez) support their position that the stabbing was not a natural and probable consequence of the assault. A situation where a “White supremacist” in the company of numerous persons of his ilk encounters an African-American and challenges him with derogatory racial statements is no less volatile than the meeting of two rival gangs, as occurred in those cases. (Montes, supra, at p. 1053; Godinez, supra, at pp. 495-496.) It is clearly a situation where “verbal taunting can quickly give way to physical violence.” (Montes, at p. 1156.) It was not “happenstance,” as defendants urge, that defendants ended up in a physical altercation with Washington.

Defendants also attempt to distinguish Montes and Godinez on the basis that, in those cases, there were facts showing the defendants knew their companions were carrying weapons. (Montes, supra, 74 Cal.App.4th at p. 1056; Godinez, supra, 2 Cal.App.4th at p. 500.) As Godinez states, “although evidence indicating whether the defendant did or did not know a weapon was present provides grist for argument to the jury on the issue of foreseeability of a homicide, it is not a necessary prerequisite.” (Godinez, supra, at p. 501, fn. 5; see also People v. Medina (2009) 46 Cal.4th 913, 921 [“prior knowledge that a fellow gang member is armed is not necessary to support a defendant’s murder conviction as an aider and abettor”]; People v. Mendoza (1998) 18 Cal.4th 1114, 1133 [the issue is not whether the aider and abettor actually foresaw the non target crime, but whether, judged objectively, it was reasonably foreseeable].)

We believe sufficient evidence supports the jury’s verdicts.


The judgments are affirmed.

We concur: BOREN, P. J., ASHMANN-GERST, J.

Summaries of

People v. Allen

California Court of Appeals, Second District, Second Division
Dec 3, 2009
No. B207282 (Cal. Ct. App. Dec. 3, 2009)
Case details for

People v. Allen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SCOTT ALLEN et al.…

Court:California Court of Appeals, Second District, Second Division

Date published: Dec 3, 2009


No. B207282 (Cal. Ct. App. Dec. 3, 2009)