IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 1, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
EPPIE MCCLAIN, JR., DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of San Bernardino County. Donna G. Garza, Judge. (Super.Ct.No. FSB802459)
The opinion of the court was delivered by: Miller J.
P. v. McClain
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Eppie McClain, Jr., guilty of (1) attempted carjacking (Pen. Code, §§ 664, 215, subd. (a));*fn1 (2) assault with a firearm (§ 245, subd. (a)(2)); and (3) being a felon in possession of a firearm (§ 12021, subd. (a)(1)).*fn2 In regard to the attempted carjacking, the jury found true the allegation that defendant personally used a firearm during the commission of the felony. (§ 12022.53, subd. (b).) The trial court found true the allegations that defendant suffered (1) two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d));*fn3 (2) two prior serious felony convictions (§ 667, subd. (a)(1)); and (3) two prior convictions that resulted in prison terms (§ 667.5). The trial court sentenced defendant to state prison for a determinate term of 20 years, and an indeterminate term of 25 years to life.
Defendant makes two contentions. First, defendant asserts that the evidence supporting his conviction for attempted carjacking (§§ 664, 215, subd. (a)) does not meet the substantial evidence standard. Second, defendant contends that the prosecutor committed Batson/Wheeler*fn4 error by excusing two African-American people from the venire. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On June 13, 2008, at approximately 10:30 a.m., the victim, who is female, exited a grocery store in Loma Linda. The victim's three- and one-half-year-old son was with her at the grocery store. As the victim and her son exited the store, they proceeded towards the victim's van, which was parked in the store's parking lot. The victim placed her son in his car seat, and then placed her groceries in her van.
After the groceries were put away, the victim entered the van and put the windows halfway down, because it was a hot day. With the exception of the driver's door, the van's doors were locked. Defendant approached the passenger door of the van. Through the half-open window, defendant asked the victim if she had jumper cables. The victim told defendant that she did not have jumper cables, but defendant could get help at the nearby gas station. Defendant asked the victim if she would help him push his car. Defendant said that his car was located at the nearby Laundromat. The victim told defendant that she would help him.
Defendant tried to open the van's passenger door. Defendant shook the van as he pulled hard on the door handle. The victim told defendant that she could not let him into the van. The victim told defendant that she would follow him to his car. As defendant pulled hard on the door handle with one hand, he moved his other hand towards his pocket. Defendant removed a gun from his pocket and pointed it at the victim.
The victim saw the gun and began screaming. The victim screamed, "'What did I do to you? Please, don't do it. I meant to help you. Why are you doing this?'" Defendant repeatedly said to the victim, "'Shut up. Open the door. Shut up.'" The victim jumped out of her van and screamed for help. The victim screamed, "'He's got a gun. My son is in the car, please.'" People in the parking lot began running to the victim's aid.
Defendant moved around the van, to the driver's side. Defendant placed his hand on the van's steering wheel. As the people from the parking lot approached the van, defendant ran away. One of the people in the parking lot, a man (Witness-1), chased after defendant. As Witness-1 followed defendant, defendant pointed the gun at Witness-1. Witness-1 continued to chase defendant into a field.
A second man (Witness-2), was walking through the field on the way to the VA hospital. Witness-2 heard a person yell, "'Stop him. He's got a gun.'" Witness-2 saw defendant coming through the field with a gun. Defendant pointed the gun in the direction of Witness-2. Defendant passed by Witness-2; defendant was headed in the direction of the VA hospital. Witness-2 followed defendant at a safe distance, in order to alert the VA hospital's security that a man with a gun was near the hospital. Defendant took a path to the right side of the hospital. Witness-2 took a path to the left side of the hospital, in order to reach the entrance of the hospital first. As defendant came around the corner, Witness-2 saw defendant throw the gun in a garbage can. As defendant approached the entrance to the hospital emergency room, three officers stepped outside, and defendant surrendered.
A. SUBSTANTIAL EVIDENCE
Defendant contends that the evidence supporting his conviction for attempted carjacking (§§ 664, 215, subd. (a)), does not meet the substantial evidence standard. Defendant's contention focuses on the evidence related to the element of specific intent. We disagree with defendant's contention.
"A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) Further, we note that "[b]ecause intent can seldom be proven by direct evidence, it typically is inferred from the circumstances" presented by the evidence. (People v. Smith (2009) 178 Cal.App.4th 475, 479.)
"Carjacking is the felonious taking of a motor vehicle in the possession of another or from her person or immediate presence against her will and with the intent to either permanently or temporarily deprive the victim of possession of her car, accomplished by force or fear. [Citations.] Accordingly, attempted carjacking could be committed with the intent to either temporarily or permanently deprive the victim of possession of her car. [Citation.]" (People v. Marquez (2007) 152 Cal.App.4th 1064, 1067-1068, italics omitted.)
The victim testified that she jumped from the van after defendant pointed a gun at her, and then she saw defendant move to the driver's side of the van. Witness-1 testified that he also saw defendant "at the driver's side of the [van]." Witness-1 observed that defendant's body was halfway in the van, and defendant's hand was on the van's steering wheel. The jury could reasonably infer from defendant's act of placing his hand on the steering wheel that defendant did not go to the driver's side of the van to take the victim's purse or other belongings from inside; rather, defendant was attempting to take control of the van in order to temporarily or permanently deprive the victim of possession of her car. As a result, the jury could reasonably infer from the foregoing circumstances that defendant acted with the specific intent to temporarily or permanently deprive the victim of possession of her van. In sum, we conclude that substantial evidence supports defendant's conviction for attempted carjacking.
Defendant argues that the evidence of the victim's "fear cannot be a substitute for" evidence of defendant's intent because "[t]o hold otherwise would be a disservice to the reasonable doubt standard." Due to defendant's mention of the "reasonable doubt standard," we want to clarify that it is not an appellate court's function to determine if the evidence proves defendant's guilt beyond a reasonable doubt; rather, we analyze whether substantial evidence supports the jury's findings. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.) Further, we note that the victim's fear is not the focus of our analysis. Rather, our analysis focuses on defendant's act of pointing the gun at the victim, defendant's act of moving to the driver's side of the van, and defendant's act of placing his hand on the steering wheel. It is the foregoing evidence of defendant's acts that reflects defendant's intent to deprive the victim of her van.
Defendant contends that substantial evidence does not support his conviction for attempted carjacking because the circumstances do not reflect that defendant demanded the victim's car keys, that defendant attempted to force the victim from the van, or that defendant threatened to kill the victim. We do not find defendant's argument persuasive, because the victim was forced from the van when defendant pointed a gun at her. Accordingly, we are not persuaded by defendant's argument that "there was no attempt to force [the victim] out of her van."
Defendant asserts that the evidence reflects, "at most," an intent to rob or scare the victim. Contrary to defendant's position, when defendant reached the driver's side of the vehicle, he did not try to rummage for the victim's purse or look for items of value; rather, he placed his hand on the steering wheel. The jury could reasonably infer that defendant placed his hand on the steering wheel in an attempt to take control of the van, in order to deprive the victim of possession of the van. Consequently, we are not persuaded that the evidence only supports the conclusion that defendant intended to rob or scare the victim.
B. BATSON/WHEELER ERROR
Defendant contends that the prosecutor committed Batson/Wheeler error by dismissing Juror 41 and Juror 98 for a discriminatory purpose. We disagree.
1. LEGAL BACKGROUND
In Wheeler, our Supreme Court "held that 'the use of peremptory challenges to remove prospective jurors on the sole ground of group bias' violates a defendant's right under the California Constitution to a trial by [a] jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at p. 276, italics added.) Discrimination in the exercise of peremptory challenges likewise violates the defendant's equal protection rights under the federal Constitution. (Batson, supra, 476 U.S. at pp. 84-89.) Wheeler recognized there is a general presumption 'that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground,' but went on to explain that the presumption is rebuttable. (Wheeler, supra, 22 Cal.3d at p. 278.)" (People v. Reynoso (2003) 31 Cal.4th 903, 913-914 (Reynoso).)
Our Supreme Court "adopted the following test in Wheeler for determining when the exercise of peremptory challenges violates a defendant's constitutional jury trial right: 'If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in [a] timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, . . . he should make 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. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association . . . . [Citations.]" (Reynoso, supra, 31 Cal.4th at p. 914.)
If the trial court finds that a prima facie case has been made, then the burden shifts to the other party to show that the peremptory challenges were not predicated solely on group bias. To meet this burden, the party must show the peremptories were exercised on grounds that were relevant to the particular case on trial. (Reynoso, supra, 31 Cal.4th at p. 915.) If the trial court concludes that the party did not satisfy this burden, then the presumption that the peremptories were validly exercised will be rebutted. (Ibid.)
"The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]" (Reynoso, supra, 31 Cal.4th at p. 924.) On appeal, we "determine whether the trial court's conclusion--that the prosecutor's subjective race-neutral reasons for exercising the peremptory challenges at issue . . . were sincere, and that the defendant[s] failed to sustain [his] burden of showing 'from all the circumstances of the case' [citation] a strong likelihood that the peremptory challenges in question were exercised on improper grounds of group bias--is supported by the record . . . ." (Ibid.) "We review the trial court's ruling on the question of purposeful racial discrimination for substantial evidence. [Citation.] . . . As long as the [trial] court makes 'a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 541.)
2. JUROR 41
Ninety-eight potential jurors were sent to the courtroom for defendant's trial. Eight of the 98 potential jurors were African-American. Two of the eight potential African-American jurors were dismissed by way of joint stipulations, which left six African-Americans in the venire.
The trial court distributed questionnaires to the potential jurors.*fn5 The trial court explained to the venire that each juror was expected to orally answer the questions, then, once the questions were answered, the trial attorneys would have the opportunity to ask questions.
In response to the questionnaire, Juror 41 said, "Number 1, 41. Fontana. Three, single. Four, no kids. Five, technical specialist. Six, not applicable. Seven, no, no experience. Eight, I don't know anyone here today. Nine, no. Ten, no. Eleven, yes. Twelve, I'd rather be at work." The trial court asked, "What is a technical specialist?" Juror 41 explained, "Designing a forecasting plan[n]ing system."
Defense counsel asked, "And when the Judge indicated to you that the law presumes [defendant] to be innocent do you agree or disagree with that?" The following exchange then took place:
"Juror 41: Disagree.
"[Defense counsel]: Why is that?
"Juror 41: The way I was raised.
"[Defense counsel]: Tell me a little bit about that.
"Juror 41: Being raised by the community if [I] went home to my parents and said, 'Ms. Shepherd hit me.' My mother would of said, 'You must of done something.'
"[Defense counsel]: Okay. So are you indicating that--I like your mom--that it would be difficult for you to follow the law and presume [a person] to be innocent right now?
"Juror 41: No.
"[Defense counsel]: So you can put your gut feeling aside and listen to what's being said in court?
"Juror 41: Correct.
"[Defense counsel]: Now, you heard also about beyond a reasonable doubt; do you think it's fair that the People [bear] that entire burden?
"Juror 41: I do.
"[Defense counsel]: Why is that?
"Juror 41: Because the People are against one individual and somebody has to prove the guilt of one individual versus the community having the other side. I believe the community should have the burden to prove.
"[Defense counsel]: When you say community you mean the People?
"Juror 41: Yes."
Defendant's trial attorney continued asking questions. Juror 41 responded primarily with one word answers.
The prosecutor asked Juror 41 several questions--the following exchange took place:
"[Prosecutor]: Is there anything about the Judge's instructions early on about reasonable doubt that you didn't understand?
"Juror 41: No.
"[Prosecutor]: Okay. You seem to be a person who can make a decision easily; is that right?
"Juror 41: Correct.
"[Prosecutor]: You deal with statistics?
"Juror 41: Logic.
"[Prosecutor]: Okay. Do you want to be a lawyer?
"Juror 41: No."
The prosecutor exercised a peremptory to excuse Juror 41. Defendant's trial attorney objected, and requested permission to make a Wheeler/Batson motion. Outside the presence of the venire, defendant's trial attorney noted that defendant and Juror 41 are both African-American. Defendant's trial attorney argued that there was not a race-neutral reason for excusing Juror 41.
The trial court concluded that the defense made a prima facie case for Juror 41 being excluded based upon her race. The trial court stated that the burden shifted to the prosecution to rebut the showing of bias. The prosecutor explained that she excused Juror 41 because she did not believe that Juror 41 "was going to work well with others." The prosecutor said, "[Juror 41] had a particularly strident attitude and kind of abrasive personality. She was very quick about her answers. A little sharp about her answers. Further on the way out, at the last date of jury selection on Tuesday, she smiled and nodded at the defendant and defense counsel, but she had not met our gaze at all. So I feel that she may be bias[ed], and she's indicating that by her actions."
Defense counsel argued that the prosecutor's explanation was not race neutral. Defense counsel denied that Juror 41 had smiled at defendant, but stated that "many Caucasian jurors left on the panel" had smiled at defendant. Defense counsel further argued that Juror 41 was not strident; rather, she was forthright and logical. Finally, defense counsel concluded that the prosecutor's explanation was a "mask for the underlying racial exclusion."
The trial court concluded that the prosecutor excused Juror 41 for "a broad spectrum of reasons," and that the prosecutor did not excuse Juror 41 based solely upon her race. The trial court stated that Juror 41 had "been sitting in the chair arms folded, leaning back, [and] appear[ed] very rigid." The court described Juror 41's behavior as not wanting to be in the courtroom. Accordingly, the trial court denied the Batson/Wheeler motion.
On the cold record, we cannot verify that Juror 41 smiled at defendant; however, we can verify that Juror 41 provided primarily terse, one-word responses. Based upon Juror 41's one-word responses, the prosecutor's race-neutral explanation for excusing Juror 41 appears genuine, because it is plausible that Juror 41 would not work well with the other jurors given her brusque communication style. (See Reynoso, supra, 31 Cal.4th at p. 924.) Stated differently, Juror 41's responses to the questions provide substantial evidence that the prosecutor's explanation for excusing Juror 41 was sincere; and therefore, the trial court's conclusion--that the prosecutor rebutted the prima facie showing that Juror 41was excused on improper discriminatory grounds--is supported by the record. Accordingly, we find no error.
3. JUROR 98
In response to the questionnaire, Juror 98 said, "Number 1, 98. Two, San Bernardino. Three, not married. I have no children. Student. [¶] . . . [¶] . . . San Bernardino College. Previous jury experience, none. I haven't seen any of the attorneys, witnesses, or defendants. No, I don't know anyone that works in law enforcement. No, I don't have a relative or close friends who have similar allegations. I do feel I can be fair and impartial and there is no reason I can't." The trial court asked if Juror 98 was currently in school. Juror 98 responded, "No, taking the semester off."
In response to a question from defendant's trial attorney, Juror 98 agreed that he would not use defendant's prior felony for any purpose other than the charge of defendant being a felon in possession of a firearm. Juror 98 also agreed that he would not hesitate to hold the People to their burden of proof. The prosecutor exercised a peremptory to excuse Juror 98 from the jury panel. Defense counsel made a Batson/Wheeler motion. Defense counsel explained that she was particularly concerned with Juror 98 being excused, because Juror 98 was one of the two African-American men in the 98 person venire. Defense counsel argued that the People dismissed Juror 98 without asking him any questions. The trial court concluded that defendant made a prima facie case for bias, and that the burden shifted to the prosecutor to show that Juror 98 was excused for a race-neutral reason.
The prosecutor explained that she excused Juror 98 "in large part because of his youth--his extreme youth and his lack of life experience." The prosecutor further explained that Juror 98 was "a very young man coming in with sagging clothes. He indicated that he's a student, but he's not in school. [¶] He didn't indicate any employment. He didn't indicate any knowledge of the real world surroundings. No experience with law enforcement, pro or con. No experience with this kind of subject matter, [no] friends or family members or anyone who had been either accused of or a victim of this kind of crime, which indicated he didn't have any life experience. [¶] His appearance is [of one] who is very young. He sat there with his body kind of slouched down in that seat. He did not appear to be real engaging. And I felt he was too young to have the life experience necessary to be a juror in this case."
Defendant's trial attorney argued that the prosecutor's reasons were problematic, because the prosecutor did not ask Juror 98 about his age or life experience. Defense counsel also argued that there were many people still on the panel who did not have jury or law enforcement experience.
The trial court stated that Juror 98 "appeared to be very young. He didn't appear to be much older than 18 or 19." The trial court also noted that Juror 98's "boxer shorts were sticking out of his pants." The trial court concluded that the prosecutor's reasons for excusing Juror 98, i.e., his youth and lack of life experience, were proper race-neutral reasons for exercising a peremptory, and not a pretext for excluding Juror 98 on the basis of race.
The record does not reflect Juror 98's exact age; however, it does reflect that he was a student who was not taking any classes, and who was unemployed. Juror 98 was also not married, had no children, and had no experience with law enforcement or jury duty. Based upon Juror 98's foregoing responses to the questionnaire, the record supports the conclusion that Juror 98 appeared to have little life experience. Since the record supports the conclusion that Juror 98 had little life experience, the prosecutor's race-neutral reason for excusing Juror 98 appears genuine. (See People v. Marbley (1986) 181 Cal.App.3d 45, 48 [potential jurors excused due to youth and lack of life experience].)
Stated differently, Juror 98's responses to the questionnaire provide substantial evidence that the prosecutor's explanation for excusing Juror 98 was sincere; and therefore, the trial court's conclusion--that Juror 98 was excused for a race-neutral reason--is supported by the record. Accordingly, we find no error.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: /s/ RICHLI Acting P. J. /s/ KING J.