APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Affirmed as modified. (Super. Ct. No. 05F01223).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In this case, defendant Darious Antoine Mays was being questioned about his involvement in a homicide. Defendant asked to take a polygraph test. The police administered a fake polygraph test during which defendant denied any involvement in the crime. The police showed defendant a fake graph from the fake polygraph machine and told defendant he had not been telling the truth. Defendant then admitted he had been present at the scene of the crime. We hold that defendant‟s admissions were not involuntary so as to preclude their admission in evidence.
Defendant Mays appeals following his conviction of first-degree murder with a lying-in-wait special circumstance and personal firearm discharge enhancement. (Pen. Code, §§ 187, 190.2, subd. (a)(15), 12022.53, subds. (b)-(d); undesignated statutory references are to the Penal Code.) Defendant contends the trial court erred by (1) denying his Batson-Wheeler*fn2 motion when the prosecutor used a peremptory challenge on a Black prospective juror, (2) admitting into evidence defendant‟s statements taken by police in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], (3) admitting into evidence defendant‟s statements allegedly coerced by police faking a polygraph test, (4) allowing a witness to testify by conditional examination videotaped outside of the presence of the jury and the public and then played in open court, and (5) denying defendant‟s motion for new trial. Defendant also challenges a parole revocation fine (§ 1202.45) and a clerical error in the abstract of judgment showing the case as a three strikes case.
In the unpublished portions of the opinion, we explain why we reject defendant‟s Batson-Wheeler and Miranda claims and why we shall order modification of the abstract of judgment (1) to strike the parole revocation fine (§ 1202.45) and (2) to delete the reference to the three strikes law. In the published portion of the opinion, we reject defendant‟s contentions (3) and (4). Thus, although we will modify the abstract of judgment, we will otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A complaint deemed to be an information alleged that on January 24, 2005, defendant committed first-degree murder of Sheppard Scott (§ 187), with a special circumstance of lying-in-wait (§ 190.2, subd. (a)(15)), and an enhancement for personal discharge of a firearm causing death (§ 12022.53, subds. (b)-(d)). Defendant‟s age (17) precluded the death penalty. (§ 190.5.)
The trial court denied defendant‟s motion to suppress his statements to police on the ground of a Miranda violation, as we discuss post. The jury thus heard evidence that defendant admitted to the police that he was at the crime scene at the time of the crime, though he denied being involved.
Evidence adduced at trial included the following: Yalandria Narcisse testified she was the victim‟s girlfriend and was with him when he was shot.*fn3 Around 4:30 a.m. on January 24, 2005, they were in a car waiting to order food at the Jack In The Box drive-through on Norwood Avenue. Two persons standing outside the adjacent AM/PM asked if the victim had any weed, and he said no. The victim told Narcisse one of the two persons insulted him, calling him a "bitch-ass nigger or something." She said she did not hear that. The victim got out of the car and engaged in an animated conversation with the two persons, during which the victim stated a gang affiliation. As the victim walked back to the car, Narcisse saw one of the persons, dressed in orange (an Orioles jacket), pass something to the other person, who was dressed in a gray hooded sweatshirt. The victim collected the food and drove to the exit. Somebody yelled, "hey, homey," and the victim stopped the car. The gray-clad male came up to the car and said he wanted to apologize. The victim said to forget about it. The person in gray held out his hand to shake. The victim, still seated in the car, held out his hand. The person in gray pulled out a gun, fired several shots at the victim, and ran off (following the person in the orange jacket).*fn4
Narcisse (and other witnesses) said the shooter fired the gun with his right hand. Defendant (and others) testified defendant is left-handed. Narcisse testified, "The guy in the gray sweater took out his hand, took out his hand to shake, to shake [victim] Sheppard‟s and then Sheppard stuck out his hand and when the guy pulled out his hand he had a gun and he started shooting." This would only make sense if the shooter had the gun in the hand other than the one he extended to shake hands. Narcisse thought the shooter had gold teeth (defendant does not have and denies ever having worn gold teeth), and from her seated position she thought the shooter stood about 5 feet 1 inch tall (defendant is 5 feet 7 inches tall).
Narcisse and the victim had been drinking alcohol that night. The police did not determine the extent of Narcisse‟s drinking.
An autopsy revealed the victim, who had a blood alcohol level of .11 percent, was shot six times.
Surveillance cameras at AM/PM did not capture images of the shooting but did capture images of the persons wearing gray and orange and shows one of them pointing at the victim‟s vehicle as it passes through the AM/PM parking lot on its way to Jack In The Box. The images of the suspects are not clear.
Witness Sharla Flores was across the street, heard the shots, looked and saw the male in the gray sweatshirt, whom she had encountered earlier that night, firing a gun at a car. When shown a photo lineup, she indicated defendant‟s photo could possibly be the shooter. She rated her level of certainty as five out of 10. When shown the AM/PM photo, she said it looked like the shooter (four on a scale of 10) but she could not tell because she could not make out the face in the photo. She believed the shooter used his right hand but was not positive.
Lisa Faupula, who was pumping gas at the AM/PM, saw a young Black male rapidly approach a car, pull out a gun, fire multiple shots with his right hand (defendant testified he is left-handed), and run off. She estimated his height at 5 feet 7 or 8 inches. She "guessed" his weight at 145 or 150 pounds. She said he wore a white "doo-rag" on his head, tied in back with a piece of cloth hanging down, and white trousers. (The pants of the gray-clad male in the AM/PM photo appear to be white or gray.) She admitted her eyesight was not good and she was in shock. She was unsure whether the gray-clad person in the AM/PM photo was the shooter and could not identify anyone.
Edward Kim was pumping gas. He noticed a male wearing an orange jacket walk past him. Kim returned his attention to his task, then heard gunshots, turned, and saw two persons running away -- the male in the orange jacket, and another male wearing dark clothing.
The prosecution sought (over defense objection) to conduct a conditional examination of Tamara Schallenberg, a neighbor who considers defendant like a son, on the ground she had phobias precluding testimony in open court. A psychiatry resident who treated her testified Schallenberg has a panic disorder with agoraphobia, characterized by sudden onset of shortness of breath, chest pain, dizziness, and extreme fear. Schallenberg has reported passing out when a panic attack brought on an asthma attack. The doctor did not believe Schallenberg was faking. The doctor said Schallenberg may be able to testify if she takes a sedative, but the risk was oversedation. The court allowed a conditional examination of Schallenberg in a courtroom, in the presence of the judge, court staff, counsel for both sides, and defendant; the jury and the public were excluded. The conditional examination was videotaped. The court found the witness‟s infirmity made her unavailable to testify in open court. The videotaped conditional examination was played for the jury in open court.
In her conditional examination, Schallenberg denied making statements to the police, including identification of defendant and his brother as the persons depicted in the AM/PM photos.
She testified that she told the officer the person in the photo might be defendant, but she was not sure. She testified she never saw defendant wear a light gray sweatshirt. She denied ever seeing defendant deal drugs and denied that he ever said he was a gang member. Schallenberg testified she has known defendant since 1999, and he is like a son to her. She admitted that one day in January 2005, she received a phone call from defendant‟s mother around 5:00 a.m. As a result of the call, Schallenberg went out looking for defendant, but she did not find him. The next day, she saw defendant and asked him what was going on. Defendant said he was with his brother at the AM/PM, and his brother shot somebody. In her conditional examination, Schallenberg said defendant laughed when he told her, but it was a "scared" laugh. Schallenberg also admitted that she and defendant had a telephone conversation while he was in jail, in which he said the investigator said she should testify in court that she made false statements to the police because she was mad at defendant.
Detective Charles Husted testified about his audiotaped interview of Schallenberg. He showed Schallenberg the AM/PM photo, and she stated without hesitation that the person in the gray sweatshirt was defendant. Husted asked how she knew, and she said she knew because she knows him. She also recognized his sweatshirt, which he wore all the time, which had "South Pole" written on its back.*fn5 She also said the person in the orange Orioles hat and jacket was defendant‟s older brother "Rico" (Deladier Montue). Husted said Schallenberg said defendant laughed like "he thought it was funny" when he told her about his being at the AM/PM when his brother shot someone. Husted said Schallenberg said defendant said he was a gang member, and she had seen him apparently selling drugs.
When shown a book of mug shots, Narcisse focused on a photograph of someone other than defendant and said he looked like the shooter. After the interview with Schallenberg, the police showed Narcisse a photo line-up. Narcisse focused on photo number three (defendant) and said everything about it looked like the shooter, and she believed it was the shooter.
Flores, the witness who stood across the street, also identified photo number three as "possibly" the shooter, expressing her certainty level as five on a scale of one to 10. At trial, Flores said her certainty level was four that the gray-clad person in the AM/PM image was the shooter.
Defendant‟s girlfriend, Judy Perez, testified she never spoke with defendant about the shooting. She denied telling the police that defendant said his brother was involved. After the prosecutor showed Perez portions of her videotaped conversation with police, she admitted she told them that defendant said his brother was involved (though she did not remember telling them that).
Detective Husted testified he questioned defendant, who initially denied any involvement, denied being present at the shooting, and denied being the gray-clad person in the AM/PM photo. Defendant said the police had no murder weapon. When asked how he knew that, defendant said it was common sense, and they would have locked him up if they had a weapon, and his brother said the police went to his home looking for the weapon. Defendant denied telling Schallenberg about a shooting at the AM/PM.
Defendant repeatedly asked the detective for a lie detector test. Because no polygraph examiner was available, the detective‟s supervisor authorized a mock polygraph test, i.e., the police placed on his body patches connected to wires, pretended to administer a lie detector test, fabricated written test results, showed defendant the fake results, and told him the results showed he failed the test. The detective suggested that perhaps defendant failed because he was present during the crime and felt some guilt about that. Defendant then admitted he was present at the shooting, and he was the person wearing the gray sweatshirt in the AM/PM photo, but he said he knew nothing about the shooting in advance and did not participate. He said the shooter was the person in orange, whom defendant had just met that day. The day after the shooting, the shooter found defendant and threatened him. Defendant admitted gang membership. Defendant, who cut his hair after the shooting, first said his brother made him cut it, but he did not remember why. Defendant immediately thereafter said he guessed the reason was because his cousin said the victim‟s brother mistakenly thought defendant was involved and was hunting for him. The videotaped police interview of defendant was played for the jury.
Defendant testified at trial. He is left-handed. He denied ever wearing jewelry or gold teeth (as some witnesses described the shooter). He denied shooting Sheppard Scott and denied even being present when Scott was shot. He claimed his inconsistent statements to the police were false admissions given only because he felt defeated after the fake lie detector test, which he did not know was fake, and he just said what the police wanted to hear. Defendant admitted prior trips to Juvenile Court for fleeing police officers while driving; none of his prior misconduct involved assault with a gun. He admitted selling drugs and being a member of a street gang.
The defense tried to call as a witness Marcos Adams (also known as Marcus Adams), but he invoked his Fifth Amendment right and refused to answer questions.*fn6
The jury found defendant guilty of first degree murder and found true the lying-in-wait special circumstance and the firearm enhancement.
The trial court denied defendant‟s motion for new trial. The court sentenced defendant to life in prison without the possibility of parole for the special circumstance murder, plus a consecutive term of 25 years to life for the gun enhancement.
Defendant contends the trial court erred in denying his Batson/Wheeler motion when the prosecutor used a peremptory challenge to excuse a Black prospective juror. We see no grounds for reversal.
Prospective juror, D. S., worked for the Department of Social Services (DSS), in the unit dealing with the Interstate Compact for Placement of Children. Her brother-in-law was a correctional officer. She said she had no problem with peace officer credibility and could be a fair juror. Her hobbies were snowboarding, bowling, and watching basketball games. When questioned by defense counsel, she said she had no problem listening to others and no problem debating others. When questioned by the prosecutor, she said she did not watch television programs about the criminal justice system but was thinking about starting. She said her judgment would not be affected by expectations from outside the courtroom, and she would have no problem returning a guilty verdict if the evidence warranted it.
D. S.‟s questionnaire answers showed she was a 39-year-old female residing in midtown Sacramento. She had worked at DSS for a year and two months and had previously worked for CalTrans for eight years as a toll collector and office technician. She was single and a high school graduate. Her father was a real estate broker; her mother was retired. D. S. did not participate in any political movement, organization, or advocacy group. She did not communicate with any inmates. She had never served on a jury. She would neither believe nor disbelieve a witness until she heard their reasoning. She had no unpleasant past experiences with law enforcement. Her sister was a burglary victim, but that would not affect D. S. as a juror.
When the prosecutor gave advance notice of an intent to exercise his third peremptory challenge to excuse D. S., defendant made a Batson/Wheeler motion. The court stated for the record that the venire had included three Black persons, one of whom had been excused for cause (both parties agreed he should be excused due to his stated memory difficulties). That left D. S. and one other person (who was ultimately seated as a juror). The trial court found a prima facie case for the Batson/Wheeler motion, without receiving any argument and without explanation.
The prosecutor said he found several "red flags" in D. S.‟s questionnaire: She had a social worker type of job, was single, and lived in midtown. Also, she wore a "peace symbol button" (a fact initially unnoticed by the court and defense counsel but subsequently verified). The prosecutor concluded D. S. was "left of center" politically, and he did not want her to sit on the jury.
The court denied the Batson/Wheeler motion, stating the prosecutor had displayed honesty in the past, and his explanation "particularly in light of the button is a reasonable explanation. She has a job in a neighborhood [sic] and most notably the button which would lead to an inference that she is on the progressive side of the equation that would not unreasonably cause a prosecutor some concern particularly in a case involving a juvenile tried as an adult."
After excusing D. S., the prosecutor later used a peremptory challenge to excuse a non-Black person who worked as a youth counselor for the Youth Authority.
The People argue the trial court erred in finding a prima facie case of discrimination, but they acknowledge that issue is moot.
If a prima facie case is made (the first step), the burden shifts to the prosecution to provide a race-neutral explanation for its challenge (the second step). (Batson, supra, 476 U.S. at p. 97.) The trial court must determine if the proffered excuses are credible and supported by the record (the third step). (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [162 L.Ed.2d 196]; People v. Lenix (2008) 44 Cal.4th 602, 612, 621.) On review, we accord great deference to the trial court‟s capacity to differentiate between good faith reasons and bogus excuses. (Lenix, supra, 44 Cal.4th at pp. 612-614.)
Defendant argues the trial court did not engage in the critical evaluation (third step) but instead gave unquestioning acceptance to the prosecutor‟s proffered excuse. We disagree.
Defendant argues it is unreasonable to say that persons who live in midtown are to the left of center politically, because a housing choice may be based on price and proximity to work. Defendant claims the residence factor betrays the prosecutor‟s prejudice that a Black woman living in a metropolitan area would be anti-prosecution. We disagree. While it may be unreasonable to say that persons who live in midtown are liberals, it is reasonable to say that this person who lives in midtown and wears a peace button and works with minors in a social services job, might be sympathetic to a 17-year-old tried as an adult. Thus, for example, in People v. Watson (2008) 43 Cal.4th 652, our Supreme Court held, "On this record, the prosecutor‟s concern about [a prospective juror‟s] ability to remain objective in light of her background as a social worker was reasonable." (Id. at p. 677.) The same is true here.
Defendant argues maybe D. S. wore the peace button as a fashion statement rather than a political statement. He complains the prosecutor did not question her about her views on politics or war(s), which proves pretext. We disagree. Most people who wear a peace symbol appreciate that it has political significance.
Defendant argues D. S.‟s age and single status do not support an inference that she would be an unfavorable juror for the prosecution. However, we need not address these points because the trial court did not cite those reasons. The fact that the prosecutor gave those reasons does not demonstrate pretext. The court stated its past experience with the prosecutor was that he was an honest person. The trial court may rely on its own experiences on the bench. (Wheeler, supra, 22 Cal.3d at p. 281.)
Defendant argues D. S. would likely have been a good juror for the prosecution because she used to work for CalTrans, her brother-in-law is a correctional officer, and her sister was a burglary victim. However, defendant‟s assessment is not binding on the prosecutor.
Defendant wants us to do a comparative analysis with other prospective jurors, though he did not request such an analysis in the trial court. Such analysis can be done for the first time on appeal, but it has inherent limitations, because it is done on a cold record, with no opportunity for the prosecutor to explain. (Miller-El v. Dretke, supra, 545 U.S. at p. 241; Lenix, supra, 44 Cal.4th at pp. 621-623.) We consider defendant‟s arguments on this issue.
Defendant says the prosecutor did not excuse juror number one, who expressed opposition to the death penalty, a position which defendant claims is generally considered to indicate a left-of-center political orientation. We question defendant‟s assumption, but in any event opposition to the death penalty (which was not even at issue in this case) did not render that person similarly situated to D. S., who makes her living providing social services to children. Defendant says the prosecutor did not excuse jurors numbers three, six, seven, and eight, all of whom were unmarried men living in areas that were urban, "fairly urban" (Rancho Cordova), or "fairly densely populated" (Fair Oaks). Again, however, these points do not make these persons similarly situated to D. S. None of them worked as a social worker or wore a peace button to court.
We do not suggest defendant had to show a "cookie cutter" comparison in order to prevail. Defendant quotes from Miller-El v. Dretke, supra, 545 U.S. at page 247, footnote 6, that the defendant need not show "an exactly identical [W]hite juror," matching "all characteristics" of the challenged juror, in order to prevail in a Batson motion. However, in Miller-El, the prosecutor excused a Black person (Fields) who expressed unwavering support for the death penalty but also said the possibility of rehabilitation might be relevant. Fields believed anyone could be rehabilitated, but this belief would not stand in the way of his making a decision to impose the death penalty. (Id. at pp. 242-243.) When asked to justify the peremptory challenge, the prosecutor said it was the death penalty matter and mischaracterized the prospective juror‟s testimony. When defense counsel pointed out the mischaracterization, the prosecutor added as another reason for the strike the fact that Fields‟s brother had a prior conviction. (Id. at p. 246.) In finding Batson error, the Supreme Court said, "when we look for nonblack jurors similarly situated to Fields, we find strong similarities as well as some differences. [Fn. omitted.] But the differences seem far from significant . . . ." (Id. at p. 247.) The fact that the prosecutor‟s stated reason concerning the death penalty also applied to other panel members, most of them White, none of them struck, was evidence of pretext. (Id. at p. 248.) The defendant did not have to show the other panel members had brothers with criminal convictions in order to prevail. (Id. at p. 247, fn. 6.)
Defendant fails to show the prosecutor accepted jurors who were similarly situated to the challenged panel member.
We see no grounds for reversal in the trial court‟s denial of defendant‟s Batson/Wheeler motion.
Defendant complains the detective violated his Miranda rights by failing to honor his request for counsel. We shall conclude there was no Miranda violation, but even if there were, it would be harmless beyond a reasonable doubt.
Defendant raised this issue in a motion in limine seeking exclusion of statements he made to police.
The videotaped police interview of defendant shows that Detective Husted read the Miranda rights and asked defendant if he understood each right. Defendant‟s responses were affirmative or inaudible. Husted then began asking defendant questions about the case, which he answered. Although Husted did not ask defendant for an express waiver of his Miranda rights before beginning the questions, defendant does not assign this as reversible error and does not dispute that waiver can be implied. (People v. Whitson (1998) 17 Cal.4th 229, 247.)
Defendant said he understood he was in custody for murder of the victim, but he had nothing to do with it and was not even present. The detective said witnesses had identified him. Defendant denied being the person depicted in the photo from the AM/PM video and said he did not own a similarly-colored gray sweatshirt. The detective left the room, returned with another photo, which defendant admitted was him. The detective said the second photo was merely a photocopy of the first photo, darkened to make the sweatshirt look darker. The detective told defendant to stop lying. Defendant asked for a lie detector test, which he guaranteed he would pass "a hundred percent." The detective expressed doubt. The following ensued:
"[Defendant]: Look. Can I -- can I call my dad so I can have a lawyer come down "cause I‟m -- I‟m telling you, I‟m --
"DET. HUSTED: Call who?*fn7
"[Defendant]: My -- my step-dad "cause I‟m -- I‟m going to tell you I‟m going to pass that test a hundred percent.
"DET. HUSTED: Okay. Well, we don‟t need your step-dad right now.
"[Defendant]: I know. He got my lawyer.
"DET. HUSTED: Who‟s your lawyer?
"[Defendant]: My -- my step-dad got a lawyer for me.
"DET. HUSTED: Okay. So what do you want to do with him?
"[Defendant]: I'm going to -- can -- can you call him and have my lawyer come down here? [Italics added.]
"DET. HUSTED: (Unintelligible).
"[Defendant]: I‟m telling you -- I‟m telling you this is not me.
"DET. HUSTED: Well, it -- you‟ve been identified.
"[Defendant]: Can you give me a lie detector test?
"DET. HUSTED: (Unintelligible).
"[Defendant]: I‟ll guarantee you ...