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People v. Burney

July 30, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHAUN KAREEM BURNEY, DEFENDANT AND APPELLANT.



Orange County Super. Ct. No. C-94692 Judge: Robert R. Fitzgerald.

The opinion of the court was delivered by: George, C. J.

A jury convicted defendant Shaun Kareem Burney of second degree robbery (Pen. Code, §§ 211, 212.5, 213, subd. (a)(2)),*fn1 kidnapping (§ 207, subd. (a)), kidnapping for purposes of robbery (§ 209, subd. (b)), and the first degree murder of Joseph Kondrath (§ 187). Allegations of robbery-murder and kidnapping-murder special circumstances (§ 190.2, subd. (a)(17)(A), (a)(17)(B)) were found true, and defendant was found to have personally used a deadly weapon (a firearm) in the commission of the murder. (§ 12022.5.) Following the penalty phase of the trial, a jury returned a verdict of death against defendant. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)) and imposed a sentence of death. Defendant's appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. PROCEDURAL HISTORY

In late July 1992, the Orange County grand jury returned an indictment against defendant and two co-defendants, charging them each with second degree robbery (count I), kidnapping (count II), kidnapping for purposes of robbery (count III), and first degree murder (count IV). The indictment alleged against all three defendants the special circumstances of murder in the commission of a robbery and murder in the commission of a kidnapping. As to defendant, the indictment alleged as to all counts the personal use of a firearm, but shortly after the commencement of the guilt phase of the trial, the trial court granted the prosecution's motion to dismiss the firearm-use allegations against defendant in counts I, II, and III. As to the two co-defendants, the indictment alleged they were vicariously armed with a firearm.

The three defendants were tried jointly in a jury trial that began in April 1994. The death penalty was sought only against defendant. The jury found him guilty of the four counts charged against him, found that the murder was of the first degree, found the two special circumstance allegations true, and found true the allegation that defendant personally used a firearm in the commission of the murder.*fn2 At the penalty phase of defendant's trial, the jury determined that defendant's punishment should be death.

II. FACTS

A. Introduction

In the early morning hours of June 10, 1992, defendant and his two co-defendants, Burnett and Rembert, left their apartment intending to find and assault Ron Hussar, and to steal Hussar's car stereo. When Hussar could not be found, the three men decided to steal an automobile and then drive to an area where members of a rival gang resided, so they could shoot at them. The three men observed the victim, Joseph Kondrath, entering his automobile in a carport adjacent to Kondrath's apartment building. At gunpoint, they forced Kondrath out of the vehicle, robbed him of his wallet, and forced him into the trunk of his automobile.

The three men drove to the residence of Jeffrey Howard, from whom they borrowed a shotgun. They drove to an area where rival gang members resided, but did not observe any gang members. The group then drove to, and fired gunshots into, an apartment belonging to Cynthia Melson, Burnett's former girlfriend, and thereafter returned the shotgun to Howard.

The three men discussed the need to kill Kondrath because he had seen their faces and could identify them. They drove to Crescent Avenue in Anaheim and stopped the automobile. Defendant opened the trunk of the vehicle and fired one shot, which fatally struck Kondrath in the head. The men then fled the scene.

The next day, defendant informed Jeannette Roper, Rembert's girlfriend, that he had shot the victim. During a videotaped police interrogation several days later, defendant confessed that he had kidnapped and murdered Kondrath. Both Rembert and Burnett gave statements to the police, confirming that the three men discussed killing the victim because he had seen their faces, and that defendant shot Kondrath while the victim lay in the trunk.

B. Guilt Phase Evidence

1. The Prosecution

Defendant was arrested on June 16, 1992, subsequently waiving his rights under Miranda v. Arizona (1966) 385 U.S. 436, and consenting to an audiotaped and videotaped interview with Detective Georgia Erickson and Detective Paul Gallagher. A transcript of the interview was read to the jury. The interview was redacted to eliminate references to the co-defendants by name, replacing each occurrence of the co-defendants' names with the word "other" or "others."*fn3

During the course of the interview with Detectives Erickson and Gallagher, defendant offered numerous and sometimes contradictory versions of the events that took place on the night of Kondrath's murder. Defendant initially stated he had no information regarding a murder beyond knowing that a body had been found near the residence of his friend David Wilson, but defendant did not dispute the statement of one of the detectives that defendant had been "going around town telling people that [he] did it." Defendant stated that on the night of Kondrath's murder, he and his two companions departed from an apartment where he had resided "on and off." The three men were angry at an acquaintance named Ron Hussar because Hussar had refused to take David Wilson to the hospital when Wilson accidentally shot himself in the foot. In retaliation, they planned to steal Hussar's car stereo and to assault Hussar. All three men donned latex gloves upon leaving the apartment in order to avoid leaving fingerprints when stealing Hussar's stereo. When they arrived at Hussar's residence, neither Hussar nor his automobile was present. The three men were exploring Hussar's neighborhood, still wearing the latex gloves, when they encountered Kondrath.

In his statement to the police, defendant stated that his companions suggested that he take the victim's automobile and, although defendant initially was hesitant, he joined his two companions in "rushing" the victim. According to this version of the events, defendant took the victim's keys, but after he and the others entered the vehicle, defendant asked to be dropped off at the apartment where he had been residing. When the two men returned to that apartment some time later, they informed defendant they had parked the vehicle at an undisclosed location.

After further police questioning, defendant admitted he had not been dropped off but had stayed with his two companions. Defendant stated that his companions placed the victim in the trunk without defendant's knowledge or participation, although ultimately he admitted actively participating in forcing the victim from his vehicle and into the trunk at gunpoint. Initially, defendant denied that the trio had used a firearm to take the automobile from the victim. Defendant subsequently admitted that before the three men approached the victim, defendant handed the firearm to one of his companions. Defendant explained that the robbery had commenced when, after observing the victim enter his vehicle, defendant approached the driver's side window and asked the victim the time.

Prior to approaching the victim, defendant and the others discussed "jacking" the victim - which he explained to officers meant robbing him. When the victim rolled down the window of his automobile to respond to defendant's query about the time, defendant's companion forced the victim from his vehicle at gunpoint. The victim requested that defendant take the automobile but not hurt him. One of defendant's companions asked Kondrath for his wallet, which the victim handed to him, after which defendant and his companions placed Kondrath in the trunk.

According to defendant's statement, defendant drove away, with the victim in the trunk. Sometime later, one of his companions stated to the group that, because the victim had observed them, it was necessary to kill him. One of defendant's companions said something about a credit card and then threw an object out of the window.

Defendant gave conflicting accounts concerning why the trio next went to the residence of Jeffrey Howard. Initially, he informed the detectives that the three men drove there because Howard had paged defendant. Later, defendant stated that he drove to Howard's residence because one of his companions directed him to do so. Defendant stated that while he remained in the vehicle, one of his companions went upstairs to Howard's apartment and returned with a shotgun.

Defendant and the others then drove to the neighborhood where they believed Watergate Crips gang members resided. As they were driving, one of defendant's companions asked the victim whether he could hear them, and after the victim answered that he could, the victim was told to "shut up." Defendant then made a U-turn; the two other men exited from the automobile, and one of them fired the shotgun several times into the air. Defendant and his cohorts returned to Howard's residence to return the shotgun. At that location, defendant removed the latex gloves he had been wearing, because they were torn. To avoid leaving fingerprints, he placed socks on his hands. His two companions kept their latex gloves on.

During the police interview, defendant initially denied having shot the victim and claimed he had informed others he had shot the victim "[j]ust to seem like a bad ass." Eventually, however, defendant admitted that he himself had shot and killed the victim, allegedly at the instigation of his companions. Defendant's companions informed defendant repeatedly that the victim had to be killed because he had seen the men and would be able to identify them, and one of them threatened to "blast" the victim. Defendant stated that at first, he merely opened and then shut the trunk. When defendant opened the trunk again, the victim said, "don't hurt me." One of defendant's companions handed defendant a firearm and again directed him to kill the victim. Defendant did not hand the firearm back to his companion, who was drunk, because defendant feared being accidentally hit by gunfire if his companion were to attempt to shoot the victim. Instead, because he did not want to look at the victim's face, he shot him without taking aim. Defendant expressed remorse for having taken the victim's life, and stated that at the time he fired into the trunk, he did not intend to kill Kondrath and did not believe he had hit him with the shot.

After shooting Kondrath, defendant handed the gun back to one of his companions and ran away, meeting them and another man, Dwight Chandler, at the apartment where defendant had been staying. According to defendant's statement, on the night of the murder defendant did not ingest drugs and consumed only one 12-ounce can of beer. The next day, when defendant inquired concerning the whereabouts of the murder weapon, he was told it was gone. Later, defendant informed his girlfriend Summer and his friend Dwight Chandler about his participation in Kondrath's murder.*fn4

Huntington Park Police Officer Joseph Settles testified that on June 10, 1992, he was employed as a civilian traffic enforcer for the Anaheim Police Department. At approximately 8:00 p.m. that day, he observed a white Volkswagen Jetta illegally parked in front of no-parking signs on Crescent Avenue. Settles issued a citation, and then opened an unlocked door to look inside the vehicle. Although he observed nothing unusual inside the automobile, outside he noticed a dark puddle caused by something dripping from the trunk beneath the right rear tire. After Settles called for additional police assistance, officers arrived and pried open the trunk, where they found the body of a White male, later identified as Joseph Kondrath.

David Schindler, who resided on Crescent Avenue, testified that at approximately 5:00 a.m. on June 10, 1992, he was in his garage when he heard a loud noise. Schindler was uncertain whether what he heard was a gunshot, or had come from an automobile or a firecracker. The area was poorly illuminated. Schindler looked outside and saw two Black or Hispanic individuals, whom he could not identify, in the vicinity of a white automobile approximately 50 to 100 yards from his garage. This vehicle was parked in a no-parking zone in an industrial area containing empty and abandoned buildings. As Schindler watched, the two individuals fled by jumping a fence and running to a drainage ditch or culvert. Later, Schindler approached the vehicle but observed nothing unusual. He did not call the police.

William Townsend testified that at approximately 6:00 a.m. on June 10, 1992, he discovered a wallet lying in the street on Manchester Avenue in Anaheim approximately one mile from Crescent Avenue. The wallet contained Joseph Kondrath's personal papers, family photographs, and one dollar. Townsend turned the wallet over to the police later that day.

Dr. Masamichi Katsuyama conducted an autopsy on Kondrath's body. He testified there was a gunshot entrance wound on the left side of the back of Kondrath's head. There was discoloration to the back of the right hand, indicating that the weapon had been fired relatively close to the skin. A badly deformed bullet, having characteristics consistent with a .357-caliber bullet, was recovered near the midline of Kondrath's head. There were no other traumas or injuries to the victim's body. The cause of death was loss of blood from the gunshot wound to the head.

Anaheim police Detective James Conley examined Kondrath's Jetta after his body was found. Latent fingerprints lifted from the automobile were identified as Kondrath's. A spent shotgun shell and shotgun casing were found on the right rear floorboard. A torn piece of latex was found between the right front passenger seat and the car door. Kondrath's Visa credit card was found in the same location. Mud debris was found on the floorboard between the front seats, and on a T-shirt, brace, and towel located on the right rear seat.

Detective Georgia Erickson testified that she interviewed Jeffrey Howard approximately one week after Kondrath was murdered. Howard informed Detective Erickson that co-defendant Burnett arrived at Howard's residence early in the morning June 10, 1992, and asked to borrow a shotgun and shotgun shells. Burnett told Howard that he had a person confined in the trunk of his automobile. Howard informed Detective Erickson that Burnett returned the shotgun later that morning, and that he saw defendant behind the wheel of the automobile when Howard accompanied Burnett to the first floor of his residence. Burnett told Howard he wanted the shotgun in order to shoot at a rival gang.

Jeffrey Howard testified that on June 10, 1992, he resided at 326 South Claudina Street in Anaheim. Between midnight and 2:00 a.m. that morning, co-defendants Rembert and Burnett came to his residence and awakened him. Rembert was armed with a Derringer pistol that Howard previously had seen in Rembert's possession. Burnett asked Howard for a 12-gauge shotgun, which Howard gave him. During his testimony, Howard could not recall whether Burnett had explained why he wanted the shotgun. Howard testified that in addition to the shotgun, Howard gave Burnett red shotgun shells, loaded the shotgun with three shells, and gave Rembert a "handful" of bullets for the Derringer pistol. According to Howard, approximately one hour later Burnett returned the shotgun. Howard placed that weapon under his bed and went back to sleep, testifying he did not check the shotgun to determine whether it had been fired. Howard did not recall whether he informed Detective Erickson that Rembert and Burnett had said that someone was confined in the trunk of the automobile, that he had gone downstairs with Burnett, that he had stated to the detective that defendant was driving, or that Burnett had told him he intended to shoot at rival gang members. Howard denied ever carrying the Derringer pistol. He acknowledged that in his interview with the police, he had not mentioned that Rembert accompanied Burnett when Burnett arrived to borrow the shotgun. Howard testified that he did not observe defendant when the co-defendants arrived at his apartment for the first time, and that the street below his apartment was not visible from the second story.

Howard further testified that on June 11, 1992, he returned the shotgun to Ryan Leuta, who owned the gun and occasionally lent it to others. Howard denied ever having possession of the Derringer pistol. He gave the remainder of the shotgun shells and bullets in his possession to Detective Erickson.

Detective Conley testified that a shotgun and a .357-caliber Derringer pistol were recovered from the residence of Ryan Leuta on June 16, 1992. Criminalist Dennis Fuller testified that in his opinion, the shell casing found on the rear floorboard of the victim's automobile had been fired from the shotgun recovered from Leuta's residence.

Jeffrey Howard's mother-in-law, Deborah Cook, testified that she resided with her daughter, Lakesha Howard, and Jeffrey Howard at the Howards' apartment. On June 10, 1992, at approximately 4:00 a.m., she was awakened by a knock on the front door. She answered the door and a male, who may have been co-defendant Burnett, asked for Jeffrey. About an hour later, the same person returned and asked for Jeff. Cook denied having informed Detective Erickson that three persons approached the door on both occasions on June 10. Cook was not acquainted with defendant.

Cynthia Melson testified that on June 10, 1992, she resided in an apartment located on Pine Street in Westminster. Melson's roommate, Marcia, and Melson's mother, Marjorie, also were present in the apartment on the morning of June 10. Melson was co-defendant Burnett's ex-girlfriend, and Burnett and Rembert previously had resided at the Pine Street apartment with Melson. Melson had been acquainted with Burnett for approximately three years, but had ended their relationship approximately six months previously because they did not get along. Melson testified that at approximately 4:42 a.m., five or six shots were fired at her apartment. After the shots were fired, Melson heard her former boyfriend Burnett yell "fuck you." The shots damaged Melson's front door, the upstairs bedroom window, the downstairs kitchen window, and a wall in Marcia's bedroom. A bullet missed Marcia's head by six inches. Melson later discovered red shotgun cartridges on a patio by the front door of her residence. Melson was not acquainted with defendant and had not seen him prior to the trial.

Westminster Police Officer Cotrell testified that he recovered expended shotgun shell casings and wadding from inside the Melson residence after the shooting. Shotgun shell casings discovered at that location were from the same type of cartridge as the casings recovered from Kondrath's automobile. Criminalist Fuller opined that the shotgun shell casings found at the Melson residence and in the victim's automobile had been fired from the same shotgun. As Fuller explained, shotgun wadding protects pellets inside the shotgun and is expelled from the barrel of a shotgun. Fulton testified that wadding recovered from Melson's residence was made by the same manufacturer that produced the shotgun shells admitted in evidence. A copper slug and jacket found at the Melson apartment were consistent with a jacketed hollow-point bullet and had been fired from the Derringer pistol. The projectile recovered from the victim's head was a jacketed hollow-point .357- or .38-caliber bullet with markings consistent with having been fired from the top barrel of the Derringer. Based on test firing of the Derringer, Fuller concluded that the weapon was fired at close range.

Rembert's ex-girlfriend Jeannette Roper testified that on the morning of June 10, 1992, she was awakened by a phone call from Rembert. Rembert instructed her that if anyone were to inquire concerning his whereabouts the preceding night, she was to say he had spent that night with her. Later that day, Roper went to Rembert and Burnett's apartment, where she saw defendant. She testified that defendant informed her he had walked up to an automobile and asked the male driver for the time, but then pointed a firearm at him and ordered him to get out of the vehicle. Defendant told her he shot the driver, and that it was his seventh murder. Detective Erickson testified that she spoke to Roper on June 15.

Roper informed her that defendant stated he had shot a man in the head and then placed him in the trunk of the man's automobile. Erickson testified that Roper stated defendant and his co-defendants initially had planned to, but ultimately did not, steal the victim's car stereo.

2. The defense

Defendant did not testify or present any other evidence in his defense. During opening and closing arguments, defense counsel contended that defendant was not guilty of murder under a felony-murder theory, because the robbery and kidnapping of Kondrath ended before the homicide took place. Counsel also asserted that defendant was guilty of only second degree murder, because Kondrath's murder was not deliberate and premeditated.

Co-defendant Burnett did not testify, but presented evidence indicating that he was a chronic alcoholic and was intoxicated on the night of the murder.

Co-defendant Rembert also did not testify. He presented the testimony of a psychologist who had conducted testing on Rembert. The psychologist concluded Rembert had a submissive personality and was "likely to go along with the crowd." She testified he was dependent on alcohol, abused drugs, suffered from depression, and had been diagnosed with adult antisocial behavior. She opined that Rembert "may not really have comprehended what was going on in a timely manner to make the kind of decision that he could have made." The psychologist acknowledged that Rembert previously had been arrested for assaulting a girlfriend and had pleaded guilty to assault in another case, but she nonetheless stated she did not believe Rembert had assaultive or aggressive tendencies.

C. Penalty Phase Evidence

1. The Prosecution

The prosecution presented evidence regarding uncharged acts of violence, including multiple occasions on which defendant assaulted his former girlfriend and one occasion on which he assaulted his stepfather. Sylvia Carmona, who dated defendant for several years starting when she was 15 years of age and defendant was 16 years of age, testified that on one occasion, defendant locked her inside his residence and then hit her with his hand, causing a black eye for which she sought treatment at a hospital. Carmona admitted that she had thrown an iron at defendant prior to this assault, and that she "put [defendant] down all the time." Carmona testified that on another occasion, defendant choked her, and that on a third occasion, defendant pulled her hair, causing her to fall to the ground.

Lee Thomas, defendant's stepfather, testified regarding defendant's violent conduct toward him. In May 1992, Thomas was residing in an apartment with defendant and his mother Ernestine Burney Thomas. Defendant was upset concerning a comment made by Thomas and confronted him outside the apartment. After a verbal exchange, defendant struck Thomas on the side of his face. After a further heated verbal exchange between defendant, Thomas, and Ernestine, defendant lunged at Thomas with a knife. Thomas testified that defendant hit Thomas either with the back of his hand holding the knife, or with the blunt part of the knife, but did not cut Thomas. At this point, Thomas picked up a large rock and warned defendant to depart. When Thomas went upstairs, defendant slashed the tires and the seat of Thomas's automobile with the knife. When the police arrived, defendant informed them the argument began because Thomas had made a comment about women with large buttocks and breasts, and stated he made a stabbing motion at Thomas and would have killed him had Ernestine not stepped in between them. He also informed the police that Thomas had hit him on a prior occasion, knocking him down. The police arrested defendant for assault, but the charges were dismissed.

Kondrath's parents, his fiancée, and one of his sisters testified concerning the impact of the murder upon them, the good and peaceful nature of the victim, and how much the victim's friends and family missed him.

2. The Defense

Forensic psychologist Dr. Stephen Wells interviewed defendant and testified on his behalf. Dr. Wells opined that defendant, 18 years of age at the time of the murder, was a child in terms of intellectual development and social maturity. Wells believed defendant did not intend to kill the victim until he was influenced to do so by co-defendant Rembert. Defendant was experiencing the symptoms of a manic-depressive mental disorder at the time of the murder. Defendant was a "follower" rather than a "leader." According to Wells, defendant expressed remorse for the murder and would not pose a danger to others in prison.

Wells determined that a series of traumatic events in defendant's life profoundly had affected his emotional functioning. When defendant was eight years of age, his mother took him to the out-of-town funeral of her father. When they returned, defendant's father, David Burney, had changed the locks on the door of the family residence, where he was residing with another woman. Defendant and his mother stayed in motels and with friends for the next six months. At the time, defendant spoke of committing suicide and was taken to a psychologist. Defendant eventually reestablished contact with his father and, when he was 14 years of age, visited him in North Carolina at Christmas. Defendant remained in that state, residing with his father for a while but, after a disagreement, was ejected from his father's home and resided with his aunt for the remainder of the school year.

Wells further testified that when defendant was 18 years of age, his mother Ernestine married Lee Thomas. Defendant did not get along with Thomas, who physically abused Ernestine on many occasions, and defendant felt powerless to prevent this abuse. Wells also described the circumstances of defendant's assault on Thomas. At the time of trial, Ernestine no longer was residing with Thomas, but instead with defendant's father, David Burney. According to Wells, David Burney, who had had no contact with defendant since ejecting him from his home in 1988, refused to testify on defendant's behalf in the present proceedings.

David Burney's sister, Brenda Burney, testified that David was dishonest and unreliable, and had not been a good father to defendant.

Rogelio Onofre testified that after being released from jail following the assault on Thomas, defendant resided with Onofre, a friend of his since grade school, and Onofre's mother, Maria Gomez. Defendant wanted to reside with his mother, but could not do so because his release from police custody was conditioned on defendant having no further contact with her husband, Thomas. Defendant was deeply upset when, six days before the murder, Onofre's young niece accidentally drowned in a Jacuzzi. Onofre testified that his mother asked defendant to leave her residence because she believed he was associating with the wrong persons.

Forensic psychologist William Vicary examined defendant and concluded he was depressed and suicidal prior to the murder. Defendant frequently consumed alcohol and smoked marijuana. Defendant informed Vicary that he drank 40 ounces of malt liquor before committing the murder. Vicary acknowledged that defendant earlier had told a defense investigator that he had had nothing to drink before the murder. Vicary concluded that defendant was traumatized by the absence of his father. Defendant's mother physically abused him when he was a child, and defendant was traumatized by twice having been required to leave his father's home and then, just before the murder, being ejected from his mother's home. After defendant was required to leave Onofre's residence, he stayed with the co-defendants and another person, who were gang members and who exerted a negative influence on defendant.

Vicary testified that defendant experienced remorse for killing the victim and would not constitute a danger while incarcerated. Vicary acknowledged, however, that he had determined defendant had an antisocial personality, and that on one occasion after defendant's arrest, he had violently attacked a Hispanic inmate who had called him a "nigger."

Ernestine Burney Thomas testified that she had a good relationship with defendant and that he loved children and enjoyed helping others. Rogelio Onofre testified that defendant was a loving person and a good friend, and that although he had seen defendant arguing with his ex-girlfriend Sylvia Carmona, he could not imagine defendant pulling the trigger or shooting the victim. Maria Gomez testified that she had known defendant since he was nine years of age, and that he was like a son to her. Gomez stated that defendant was helpful with household chores, and that she could not believe that defendant could have been involved with a murder. Carol Warren, whose daughter Leslie Coulter was defendant's best friend since childhood, testified that defendant was well-behaved, a sweet person, and a "joy to be around." Leslie Coulter testified that defendant was a very sweet person who always helped others, was good with children, and had known the co-defendants only for a few months prior to the night of the murder. Coulter also stated that defendant was a good friend and a leader rather than a follower, and that she never had observed him acting violently or being involved in a fight.

III. DISCUSSION

A. Asserted Errors Affecting the Guilt Phase of Trial

1. Denial of Defendant's Motion to Quash the Grand Jury Indictment

(a) Facts

At trial, defendant unsuccessfully moved to quash the indictment on the ground that the Orange County grand jury selection process was unconstitutional because of the absence of Asian-American prospective jurors in the venire. On appeal, defendant contends that the trial court's denial of his motion to quash was erroneous and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution, requiring reversal of the guilt and penalty judgments. Defendant's claim is without merit.

In connection with his motion to quash, defendant filed a motion for joinder in a case already pending in Orange County Superior Court, People v. Robert Chien-Nan Chan (1994, No. 93ZF0012) (Chan). The defendant in Chan, joined by defendant and numerous other defendants whose trials were then pending in Orange County,alleged unconstitutional discrimination against Asian-Americans in Orange County's grand jury selection process.

A lengthy hearing was held in the Chan proceedings. John Weeks, who held a Ph.D. in demography, testified on behalf of the defendants. Weeks explained that, from a pool of 157 applicants for the 1992-1993 Orange County Grand Jury that indicted the defendants, 30 persons ultimately were selected as grand jurors. Of the 157 applicants for the grand jury, nine were nominated by judges, and the others were self-nominated. None of the nine persons nominated by judges was Asian-American. In the previous 10 years, only one Asian- American had been nominated by a judge. Regarding the grand jury that returned the indictment against defendant, four of the persons nominated by judges actually became grand jurors. In past years, persons nominated by judges were statistically more likely to become grand jurors. Weeks acknowledged that, because judges subsequently selected all of the members of the grand jury, every person ultimately chosen for grand jury service had been, in effect, nominated by a judge. For purposes of the defense motion to quash the indictment, Weeks considered the composition of the grand jury pool, as opposed to the grand jury itself, to be the relevant inquiry.

In the 1992-1993 grand jury pool, there were nine minority group members, including two Asian-Americans. The two Asian-Americans later withdrew their applications, and accordingly no Asian-Americans were seated on the grand jury. One African-American and four Hispanic jurors were seated on the grand jury.

The percentage of Asian-Americans in the grand jury pool was only 1.3 percent. Among persons over 18 years of age in Orange County, the percentage of Asian-Americans was 11.7 percent. In his initial testimony, Weeks did not exclude from his calculations Asian-Americans who were not fluent in the English language and therefore were not qualified to serve as grand jurors. Under this initial analysis, the "absolute disparity" for Asian-Americans in the jury pool was 10.4 percent (11.7 percent minus 1.3 percent) and the "relative disparity" was 89 percent (10.4 over 11.7 multiplied by 100). Weeks concluded there was no statistical possibility that such a relative disparity could occur by chance. Weeks testified again after adjusting his calculations to exclude non-English speaking Asian-Americans, and stated that the absolute disparity for Asian-Americans in the grand jury pool was 6.4 percent or less, depending on the level of proficiency of English that was being considered.

Among 2,335 persons contacted in a random Orange County sampling who indicated they qualified for federal jury service on the basis of their American citizenship and proficiency in English, the percentage of Asian-Americans was 8.5 percent. Persons who sit as grand jurors, however, are usually older than the general population and retired. Weeks estimated that, within Orange County, there were 5,601 Asian-Americans of retirement age (i.e., 60 years of age or older) but under 75 years of age who would qualify for grand jury service. Some of those persons, Weeks testified, might not speak English perfectly, and a large proportion of them would have been born outside the United States. Weeks speculated that a lack of familiarity with the grand jury system would make Asian-American potential grand jurors reluctant to participate in it. Weeks did not know whether Asian-Americans tended to be involved in family businesses more than persons in the general population and, therefore, to retire at a later age. Taking these calculations and variables into account, Weeks concluded there was "some" systematic exclusion of Asian-Americans and other minorities in the application process for the grand jury pool.

A declaration signed by Orange County Jury Commissioner Alan Slater, with attached exhibits, was admitted into evidence for purposes of the hearing on the motion to quash the grand jury indictments. In the declaration and in testimony given at the hearing, Slater explained that a committee of 15 superior court judges selected a grand jury panel of 30 persons from which 19 would be randomly selected to serve as grand jurors. The remaining 11 persons on the panel would serve as alternates.

Throughout the year, the superior court clerk's office distributed grand jury information to an ever-increasing number of "organizations of all varieties," encouraging as many persons as possible to apply to serve as grand jurors.*fn5 Slater further testified that the clerk's office attempted to be inclusive of all possible ethnic groups, attempted to enlist the mass media in an effort to inform persons in the community about jury service, and sent persons to speak about grand jury service to "anyone who is willing to listen."

Grand jurors are required to work full time for a year and at times on evenings and weekends, and are compensated by daily fees of $25, up to a maximum of $100 per week. In the previous 10 years, there had been 22 applications by Asian-Americans for grand jury service and six occasions on which Asian-Americans had been chosen as grand jurors.

William Gyak, the Orange County demographer, testified that, of the persons in the county between the ages of 60 years and 74 years of age who were very proficient in the English language, only 2.1 percent, or 3,011, were Asian-Americans and Pacific Islanders. Of the 240,000 Asian-Americans and Pacific Islanders in the county, 91,000 resided in areas having average incomes above the county median. For the prior 10-year period, Asian-Americans who applied for grand jury duty had a statistically greater chance of becoming a grand juror than did White applicants. Gyak explained that comparative disparities in statistics tend to be magnified when the group under consideration forms a very small proportion of the population in question.

Finally, John Mei Liu, a professor of comparative culture, testified that Asians constituted a distinct group.

(b) Discussion

We set forth the relevant legal inquiry in People v. Horton (1995) 11 Cal.4th 1068, 1087-1088. Although that decision concerned petit juries, the same standard applies in evaluating the composition of grand juries. (Vasquez v. Hillery (1986) 474 U.S. 254, 261-262.)*fn6

"Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367; People v. Howard (1992) 1 Cal.4th 1132, 1159.) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. (People v. Mattson (1990) 50 Cal.3d 826, 842.) "In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.' (Duren v. Missouri, supra, 439 U.S. at p. 364; [citation].) The relevant "community' for cross-section purposes is the judicial district in which the case is tried. (People v. Mattson, supra, 50 Cal.3d at p. 844; Williams v. Superior Court (1989) 49 Cal.3d 736, 744-745.) If a defendant establishes a prima facie case of systematic under-representation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. (People v. Sanders (1990) 51 Cal.3d 471, 491.)

"As to the third element of the Duren test, a defendant does not meet the burden of demonstrating that the under-representation was due to systematic exclusion, by establishing only statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process. (People v. Howard, supra, 1 Cal.4th at p. 1160; People v. Bell (1989) 49 Cal.3d 502, 530.) When a county's jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, the defendant must identify some aspect of the manner in which those criteria are applied (the probable cause of the disparity) that is constitutionally impermissible. (People v. Sanders, supra, 51 Cal.3d at p. 492; People v. Bell, supra, 49 Cal.3d at p. 524.)" (People v. Horton, supra, 11 Cal.4th at pp. 1087-1088, italics omitted.)

In the present case, the trial court hearing the motion to quash the grand jury indictments issued an order denying the motion, concluding that it "border[ed] on being frivolous." Acknowledging a conflict in the law regarding whether "Asians" constituted a cognizable group for purposes of constitutional analysis, the court nonetheless concluded that they did not constitute a cognizable group, because they did not share a common language or common historical factors. Rather, according to the court, the term "Asians" includes groups such as Chinese and Filipino, separate ethnic groups that do constitute cognizable groups. Additionally, relying on People v. Bell, supra, 49 Cal.3d 502, 527, footnote 14, in which we criticized the use of tests more complex than the absolute disparity test when the group allegedly excluded is very small, the court concluded that because the absolute disparity in the present case was estimated at 3.8 percent by Gyak, and 6.4 percent by Weeks, the disparity was constitutionally insignificant. (See People v. Bell, supra, 49 Cal.3d at p. 528, fn. 15 [noting that absolute disparity levels of less than 11.49 percent have been found to be constitutionally insignificant]) The trial court also stated it was making its decision without reaching the third prong of the test articulated in Duren v. Missouri, supra, 439 U.S. 357, 364.

Whether "Asians" can or do constitute a cognizable group is an unsettled issue. We previously have observed, however, that "it is at least questionable whether the generic description Asian . . . can constitute a "cognizable group.' " (People v. Johnson, supra, 47 Cal.3d at p. 1217, fn. 3, citing United States v. Sgro (1st Cir. 1987) 816 F.2d 30.) We need not decide that question, however, because defendant has not met his burden of satisfying the third prong of the test articulated in Duren v. Missouri, supra, 439 U.S. 357 - that there was "systematic exclusion" of Asians from the grand jury selection process. (People v. Bell, supra, 49 Cal.3d at pp. 527-528 [declining to resolve the question of whether a cognizable group was underrepresented, because defendant failed to show any disparity was caused by "systematic exclusion"].) As detailed above, Jury Commissioner Slater's declaration and testimony detailed the exhaustive efforts undertaken by the Orange County Superior Court Clerk's office to invite Asian- Americans to apply for grand jury service. The defendants bringing the motion to quash offered no evidence to rebut the showing of substantial efforts undertaken by the county to include Asian-Americans in the venire, and offered no proof of any improper feature of the jury selection process. The defendants therefore failed to establish a prima facie case that the statistical discrepancies identified were caused by any systematic exclusion of Asian-Americans. Defendant's briefing in this court focuses upon the status of Asians as a cognizable group and upon the statistical comparisons that should be applied to claims of discrimination against prospective grand jurors, but points to no evidence in the record that would establish systematic exclusion. Accordingly, there is no merit in defendant's claim that Asian-Americans unconstitutionally were excluded from the grand jury that indicted him, and the trial court properly denied the motion to quash his indictment on that basis.

2. Denial of Defendant's Severance Motion

Defendant puts forth intertwined claims that the trial court erred in denying his pretrial and midtrial motions for severance, and in admitting into evidence at the guilt phase the redacted statements of co-defendants Rembert and Burnett, admission of which assertedly implicated him in the charged crimes and deprived him of his right to confront and cross-examine witnesses under the Sixth Amendment to the United States Constitution in violation of People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). Defendant contends the trial court's denial of his motions for severance violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution ...


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