APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed. (Super. Ct. No. RIF138216)
The opinion of the court was delivered by: Nares, J.
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A jury convicted Federico Hernandez of assault with a firearm (count 2: Pen. Code,*fn1 § 245, subd. (a)(2)) and being a felon in possession of a firearm (count 4: § 12021, subd. (a)(1)). As to count 2, the jury found true allegations that Hernandez personally used a handgun (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)).
The jury also returned a verdict of not guilty on the count 1 attempted murder charge and was unable to reach a verdict on the count 3 criminal threat charge. The court dismissed the criminal threat charge.
In a subsequent bifurcated proceeding, Hernandez admitted, and the court found true, allegations that Hernandez had served three prior prison terms within the meaning of section 667.5, subdivision (b).
The court sentenced Hernandez to a total state prison term of 17 years eight months, consisting of the upper term of four years on the count 2 assault with a firearm conviction, a consecutive eight-month term (one-third the midterm) on the count 4 felon in possession of a firearm conviction, a 10-year enhancement for the use of a firearm (§ 12022.5, subd. (a)) to run consecutive to sentence imposed in count 2, and a consecutive one-year term for each of the three prior prison term enhancements (§ 667.5, subd. (b)).
Hernandez appeals, contending (1) the prosecution used peremptory challenges in a discriminatory manner to strike two Hispanic males from the jury, thereby violating his state and federal constitutional rights and requiring reversal of his convictions; and (2) the court erred in denying his six requests for new appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), thereby necessitating reversal of his convictions. We affirm.
The victim in this case, Naresh Patel, owned a smoke shop business in the City of Riverside. In late 2006 Patel hired Violet Mejia, who worked at a dry cleaning business next door to his smoke shop, as a cashier.
After she started working for Patel, Mejia asked him for money to buy a car. Patel loaned her $7,000. Although Mejia was supposed to make payments on the loan, she never made a payment. Patel fired Mejia a few days before the June 17, 2007 shooting incident at issue in this case.
On June 17, 2007, Patel drove to Mejia's apartment in Moreno Valley to talk to her about the money she owed him. His intention in going to Mejia's apartment was to either get the money she owed him or to get the pink slip to the car she purchased with the money. Mejia's brother, Benjamin Rizo, who worked for Patel, accompanied Patel to Mejia's apartment.
When Patel arrived with Rizo, Patel began a conversation about the car with Mejia in the parking lot. The car was not there.
While Patel was talking to Mejia in the parking lot, Hernandez, who was Mejia's boyfriend, drove up in the car. Patel recognized Hernandez, whom he had met a couple times at Patel's store.
After Hernandez parked the car, and referring to the car, Patel asked him, "what are [you guys] gonna do about this?" Hernandez told Patel he was not going to give him anything.
Patel then said to Mejia, "[W]hy are you guys doing this to me? I helped you. I gave you [a] job when you said that [you were] not making enough money." He reminded her that he helped her to buy the car and she told him she would pay him back. Although Patel was speaking to Mejia, Hernandez replied and again told Patel he was not going to give him anything. Hernandez then got in the car and turned on the engine. As Hernandez was getting ready to drive away, Patel, who was upset, kicked the front bumper of the car.
Hernandez got out of the car, told Patel, "I'm going to kill you," and then shot Patel once in the left leg. Hernandez got back in the car and drove away. At trial, Patel identified Hernandez as the person who shot him.
When Riverside County Deputy Sheriff Mario Moreno arrived at the scene, he saw Rizo in the parking lot holding Patel up and using his body to support Patel. Patel was transported to the Riverside County Hospital for emergency treatment.
Deputy Moreno testified that he spoke with Mejia at the scene about the shooting. Mejia told him that she had been dating Hernandez for about five months, but that she did not know his last name. Deputy Moreno noticed a tattoo on the back of Mejia's neck that said "Freddy," the name that was listed for Mejia's boyfriend.
Mejia told Deputy Moreno that she used to work for Patel at a smoke shop in Riverside, Patel had loaned her money to purchase a car, and she had not paid back the loan. Deputy Moreno also testified that Mejia told him Patel had come to the apartment to collect either the money that she owed him or the pink slip to the car she purchased with the money Patel loaned her.
Mejia also told Deputy Moreno that she was in front of the apartment with her brother (Rizo) and Patel when Hernandez arrived a short time later in the car. Mejia said Patel demanded the pink slip and Hernandez refused to give it to him. Mejia also told Deputy Moreno that, as she was putting her son into the back seat of the car, Hernandez told her to turn around. She turned around and then heard a gunshot. Mejia grabbed her child and ran to the apartment.
Riverside County Deputy Sheriff Steven Leone also arrived at the scene on June 17, 2007, after the shooting. He testified that Mejia's brother, Rizo, "seemed to be comforting" Patel. Deputy Leone spent about half an hour searching the surrounding area, but found no gun.
Deputy Leone testified that he interviewed Rizo as part of his investigation. He stated that Rizo was cooperative, answered the questions and was not evasive, and, when Deputy Leone asked him what happened, Rizo told him "the whole story."
Mejia testified that in June 2007 she and Hernandez, whom she called "Freddy," had been dating for about a year. She stated that Patel gave her money, but denied the money was a loan. She admitted that Patel gave her money to buy a car, and she had not paid him back. She denied that Patel had come to her apartment to collect the money or the car and said he never demanded the pink slip to the car. Mejia stated that the purpose of Patel's visit was to offer her back her job. She claimed she did not know who fired the gun. She also testified that she did not hear Hernandez threaten to kill Patel.
On cross-examination, when defense counsel asked Mejia whether her brother Rizo, rather than Hernandez, shot Patel, she stated her brother did not shoot Patel. She indicated that Hernandez was present when the shooting occurred.
Hernandez testified on his own behalf. He indicated he worked for the company that did maintenance in the same strip mall in which Patel's smoke shop was located. He met Mejia when she worked at the dry cleaning business located in the same strip mall. They dated for about a year. Hernandez stated that he "dumped" Mejia because the relationship was not "solid." He also stated that he knew Mejia's brother, Rizo.
Hernandez testified he did not shoot Patel, he did not have a gun on June 17, 2007, and he did not threaten Patel on that date. When asked where he was on the date of the shooting, Hernandez stated he "could have been three places," but he did not have a specific recollection of where he was that day.
Hernandez admitted he had been convicted of five felonies: (1) in 1994, possession of cocaine base for sale; (2) in 1995, unlawful taking or driving a vehicle; (3) in 2000, assault by means of force likely to produce great bodily injury; (4) in 2002, grand theft auto; and (5) in 2006, petty theft with a prior conviction.
I. DENIAL OF HERNANDEZ'S BATSON/WHEELER MOTIONS
Hernandez contends the prosecution used peremptory challenges in a discriminatory manner to strike two Hispanic males from the jury, thereby violating his state and federal constitutional rights and requiring reversal of his convictions. We reject this contention.
A. Applicable Legal Principles
The use of peremptory challenges to excuse prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U. S. 79, 89 (Batson).)
There are three steps in establishing a Batson/Wheeler claim. A defendant must make a prima facie case by showing that the totality of the relevant facts gives rise to a discriminatory inference. (Johnson v. California (2005) 545 U.S. 162, 168; see also People v. Alvarez (1996) 14 Cal.4th 155, 193 (Alvarez) [a prosecutor is presumed to have exercised peremptory challenges in a constitutional manner, and the defendant bears the burden of making an initial prima facie showing of purposeful discrimination].) If the defendant meets his burden of making such a prima facie showing, the People must show race-neutral reasons for the challenge. (Johnson, supra, at p. 168.) If the People meet this burden, the trial court must then decide whether the defendant has proven purposeful discrimination. (Ibid.)
The California Supreme Court has explained that "[t]he 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.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge." (People v. Reynoso (2003) 31 Cal.4th 903, 924, italics omitted.) "All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory." (Ibid.)
The prosecutor's explanation need not rise to a level that justifies the exercise of a challenge for cause. (People v. Williams (1997) 16 Cal.4th 635, 664.) "[A]dequate justification by the prosecutor may be no more than a 'hunch' about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as 'a mask for race prejudice' [citation]." (Ibid.)
When a trial court denies a Batson/Wheeler motion based on its finding that no prima facie case of group bias was established, the reviewing court considers the record of the voir dire and affirms the ruling if it is supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 993 (Jenkins).) The reviewing court "accord[s] particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand." (Id. at pp. 993-994.)
Hernandez, who is Hispanic, claims the prosecutor used peremptory challenges in a discriminatory manner to excuse two prospective Hispanic jurors in violation of his constitutional rights. Specifically, he asserts the court "committed reversible error when it concluded that a prima facie showing of discriminatory exclusion on the basis of race had not occurred." He also claims the exclusion of these jurors "resulted in the improper removal of two Hispanic males suitable to serve," and "[s]uch removal violated [his] right to a fair trial under the state and federal constitutions and to a trial by a jury drawn from a representative cross-section of the community." We reject these claims.
As Hernandez points out, in the first panel of prospective jurors, three were excused for cause and 10 others, including juror No. 10, were excused by peremptory challenge. In the second panel, three more were excused for cause and four others, including juror No. 1, were excused by peremptory challenge. Thus, of the total of 20 potential jurors excused either for cause or by peremptory challenge, only two Hispanics were excused by the prosecution. As we shall discuss, the court expressly found "we do have Hispanic jurors still on the panel."
After the prosecutor excused juror No. 10 from the first panel (hereafter juror No. 10), defense counsel objected by making an oral Batson/Wheeler motion, citing Hernandez's constitutional right to a jury drawn from a representative cross-section of the community. The court invited the prosecutor to make a record, but stated, "I can see reasons why the person would have been excused" because "[he] previously had a DUI, he has a brother who is convicted of various charges such as domestic violence, rape, ...