APPEAL from a judgment of the Superior Court of Sacramento County, James L. Long, Judge. (Super.Ct.No. 06F06656)
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PUBLICATION
Norik Abramyan (Norik) was shot and killed by two assailants as he sat in his car in the parking lot of a Hollywood Video store. The two assailants, defendant Arthur James Battle III and Jason Dillingham, the latter not involved in this proceeding, were hired by defendant Isaiah Dupree Barron, who was hired by Norik's son, defendant Vardan Abramyan (Abramyan), to commit the murder. Convicted by separate juries of conspiracy to commit murder and murder with special circumstances, the three defendants appeal. We consolidated the appeals for argument and decision only.
As to each defendant, we strike the parole revocation fine imposed and suspended pursuant to Penal Code section 1202.45. Imposition of the fines was improper because each defendant was sentenced to an indeterminate term of life without parole.
Except for their contentions concerning the parole revocation fines, the defendants' contentions on appeal reveal no prejudicial error. We therefore modify each judgment and affirm.
Abramyan approached Barron, an acquaintance, about killing Norik. He agreed to pay Barron $4,000 for the killing and, a few days before the killing, gave Barron $200. The evening before the killing, Abramyan gave Barron an additional $1,800. Abramyan asked Barron if Barron was going to commit the killing alone, and Barron replied, "Don't worry about it."
Barron recruited Battle and Dillingham to assist him in killing Norik. He offered, and eventually paid, each of them $500.
On July 30, 2006, Lawrence Stringer accompanied Barron, Battle, and Dillingham to a liquor store. Barron told Stringer that they were going to kill someone for money. Stringer said that he did not want to be involved. Barron, Battle, and Dillingham each had a handgun.
The car, carrying Barron, Battle, Dillingham, and Stringer, stopped at an apartment complex. All but Stringer left the car and walked into the complex where they met with Abramyan. A short time later, Barron, Battle, and Dillingham returned to the car. Norik drove up and walked into the complex. Barron, Battle, and Dillingham followed on foot, but they soon came running back to the car and said that they had not shot Norik because there were other people around.
Abramyan called Barron by cell phone, and they agreed to meet at the Hollywood Video store where Abramyan would bring Norik. Barron, Battle, Dillingham, and Stringer drove to the Hollywood Video store and parked behind the store. Barron, Battle, and Dillingham agreed that Battle and Dillingham would do the shooting and Barron would be the driver.
Abramyan and Norik arrived at Hollywood Video in a white Kia and went into the store. After a while, they returned to the car, but Abramyan told Norik that he had to go back into the store to use the restroom. Abramyan again returned to the car but went back into the store, telling Norik he left his cell phone in the restroom.
Meanwhile, Battle and Dillingham walked around to the front of the store, while Barron and Stringer waited in the car behind the store. After waiting for a while, Barron drove around to the front of the store. He spoke to Battle and Dillingham, who were smoking cigars, and encouraged them to shoot Norik. Barron then drove back behind the store to wait. After a few more minutes, Barron told Stringer to go get Battle and Dillingham because, in Stringer's words, "they weren't going to do it." Stringer got out of the car, but before he could walk around the car he heard gunshots.
Battle and Dillingham had waited in the parking lot for a total of about 30 minutes, anxious and pacing, with gloves on and bandanas around their necks. When Norik was alone in the car, Battle and Dillingham put the bandanas up over the lower part of their faces, drew handguns, and ran toward the car, with Dillingham ahead of Battle. They stopped next to the car, on the driver's side, and shot at Norik. Battle and Dillingham then returned to the car driven by Barron, and they sped away.
After the murder, Abramyan arranged to have the last $2,000 delivered to Barron.
The district attorney filed an amended information charging Battle, Barron, and Abramyan with conspiracy to commit murder (count one; Pen. Code, §§ 182, subd. (a)(1); 187, subd. (a)); and murder with financial-gain and lying-in-wait special circumstances (count two; Pen. Code, §§ 187, subd. (a); 190.2 subd. (a)(1) & (15)). As to each count, it was further alleged that Battle personally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)) and Barron and Abramyan were involved in an offense in which a principal was armed (Pen. Code, § 12022, subd. (a)(1)).
Battle, Barron, and Abramyan were tried jointly, but each had a separate jury. The juries found each defendant guilty on both counts and found all enhancement and special circumstance allegations true.*fn2
The trial court sentenced Battle to an indeterminate term of life without possibility of parole on count two, with an additional 25 years to life for personally discharging a firearm causing death. On count one, the court imposed an indeterminate term of 25 years to life, with an additional 25 years to life for personally discharging a firearm causing death. The sentence on count one was stayed pursuant to Penal Code section 654.
The trial court sentenced Barron to life without possibility of parole on count two, with an additional year for the arming of a principal. On count one, the court imposed an indeterminate term of 25 years to life, with an additional year for the arming of a principal. The sentence on count one was stayed pursuant to Penal Code section 654.
The trial court sentenced Abramyan to life without possibility of parole on count two, with an additional year for the arming of a principal. On count one, the court imposed an indeterminate term of 25 years to life, with an additional year for the arming of a principal. The sentence on count one was stayed pursuant to Penal Code section 654.
A. Peremptory Challenge of Juror
During selection of Battle's jury, the prosecution used a peremptory challenge to excuse an African-American juror. Counsel for Battle made a motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) (see also Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson)), essentially asserting that the prosecution's use of the peremptory challenge violated his constitutional rights. The trial court denied the motion. Battle, who described himself at trial as "half African American," contends that the trial court erred by denying his Wheeler motion.
"'A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias -- that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds" -- violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]' [Citation.]" (People v. Hutchins (2007) 147 Cal.App.4th 992, 996.)
"In a recent decision, the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant's are made. 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." [Citation.]' [Citation.]" (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
"The three-step Batson analysis, however, is not so mechanical that the trial court must proceed through each discrete step in ritual fashion." (People v. Adanandus (2007) 157 Cal.App.4th 496, 500.) "[W]here the '"'trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court's ruling. Because Wheeler motions call upon trial judges' personal observations, we view their rulings with "considerable deference" on appeal. [Citations.] If the record "suggests grounds upon which the prosecutor might reasonably have challenged" the jurors in question, we affirm.'"' [Citation.]" (Id. at p. 501.)
During voir dire, the court apparently asked the prospective jurors about service on prior juries. Directing its question to prospective juror Helena Rhodes concerning her service on a jury in 2000, the court asked what type of case it was and whether it was a criminal case. Rhodes responded that she could not remember.
The prosecution used its first peremptory challenge to excuse prospective juror Rhodes.
Later, outside the presence of the jury panel, Battle's defense counsel stated: "It appeared to me [Rhodes] was African American. She's the only African American that's needed. She was the very first exclusion of the prosecution so I would make -- initiate a Wheeler motion."
The court responded: "I understand. And basically what she indicated was that she served on a case in 2000, knew nothing about it very well, if anything, didn't remember and she was excused by the prosecution and I accept that as an excuse based upon her lack of interest and lack of memory rather than a race based exercising challenge."
Battle contends: "The court committed reversible error by failing to find [Battle] presented a prima facie case of discrimination when the prosecutor exercised his first peremptory challenge to excuse the only African-American potential juror on the panel." This contention fails because (1) the record does not support the assertion that Rhodes was the only African-American on the jury panel and (2) the proceedings did not compel the trial court to find a prima facie case of discrimination.
Battle asserts that defense counsel's statement that Rhodes was "the only African American that's needed" meant that Rhodes was the only African-American on the jury panel. We disagree. It is not clear what counsel meant. He could have meant that use of a peremptory challenge to excuse even one African-American for discriminatory purposes can support a Wheeler motion. In any event, the meaning that Battle assigns to the statement is not the only interpretation and, indeed, is a stretch. Therefore, the record does not support the assertion that Rhodes was the only African-American on the jury panel.
Battle further argues that he made a prima facie showing of discriminatory intent, which required the trial court to inquire of the prosecution concerning the reasons for excusing Rhodes. We disagree that Battle made a prima facie showing of discriminatory intent. This record does not reveal how many African-Americans were on the jury panel or actually served on the jury. When questioned about her prior jury service, Rhodes could not remember. As the trial court noted, her response exhibited a lack of interest and lack of memory -- acceptable reasons for a peremptory challenge.
The Supreme Court's conclusion in a recent case is also apt here: "[W]e have independently reviewed the record and conclude that defendant failed to 'produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.' [Citation.] Defendant's showing in support of his . . . Wheeler/Batson motion was meager. At the hearing, defense counsel relied solely on the fact the prosecutor had exercised three of her 10 peremptory challenges to excuse two African-American prospective jurors and one Hispanic prospective juror. Such evidence, without more, is insufficient to create an inference of discrimination, especially where, as here, the number of peremptory challenges at issue is so small. [Citations.]" (People v. Taylor (2010) 48 Cal.4th 574, 642-643.)
Battle's contention is without merit.
B. Evidence of Intent to Kill
Battle's convictions required a finding that he intended to kill. Battle contends he presented sufficient evidence to raise a reasonable doubt concerning whether he intended to kill the victim. This contention misstates the standard of review concerning sufficiency of evidence. We affirm unless the evidence was insufficient to establish he intended to kill the victim. Under the proper standard, Battle's contention is without merit.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We need not be convinced beyond a reasonable doubt that Battle intended to kill Norik. "Our inquiry on appeal 'in light of the whole record [is] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.] The standard of review is the same when the People rely mainly on circumstantial evidence. [Citations.]" (People v. Sanchez (1995) 12 Cal.4th 1, 31-32, italics omitted, overruled on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
In making his argument concerning the sufficiency of the evidence of intent to kill, Battle restricts his analysis to the evidence most favorable to himself. Such an approach is a nonstarter and, indeed, forfeits consideration of the issue. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
Battle primarily cites his own statements and the testimony of his psychology expert to support his contention that the evidence was insufficient to sustain the jury's finding that he intended to kill Norik. He stated he did not want to shoot Norik but feared Barron's response if he failed to shoot, although he admitted to doing the shooting for $500. The psychologist testified that, because of a personality disorder, Battle may have been incapable of accurately assessing the situation, but the psychologist did not testify that Battle could not form the intent to kill.
A judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. (People v. $497,590 United States Currency (1997) 58 Cal.App.4th 145, 152-153.) Thus, when a criminal defendant claims insufficiency of the evidence on a particular element of the crime of which he was convicted, we presume the evidence of that element was sufficient, and the defendant bears the burden of convincing us otherwise. To do so, the defendant must present his case to us in a manner consistent with the substantial evidence standard of review. That is, the defendant must set forth in his opening brief all of the material evidence on the disputed element in the light most favorable to the prosecution, and then must persuade us that that evidence cannot reasonably support the jury's verdict. (See People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
Here, Battle does not follow these rules. His argument on this issue largely mirrors his own statements and argument at trial. He neglects to include all of the relevant evidence in his analysis, but instead selectively describes the circumstances most favorable to him. This approach amounts to a forfeiture.
In any event, the evidence of Battle's intent to kill is sufficient. He agreed to participate in the killing for $500. He accompanied the others on the failed mission to kill Norik at the apartment complex. He laid in wait at the Hollywood Video store. And he shot at Norik as Norik sat defenseless in the car. His self-serving statements and his expert's testimony concerning a personality disorder notwithstanding, the evidence amply supported the jury's determination that Battle intended to kill Norik.
C. Parole Revocation Fine
The trial court imposed and suspended a parole revocation fine pursuant to Penal Code section 1202.45. Battle contends, and the Attorney General agrees, that imposition of the parole revocation fine was improper because he was sentenced to an indeterminate term of life without parole. We also agree and order the parole revocation fine stricken.
Penal Code section 1202.45 requires assessment of a parole revocation restitution fine "[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole." Because Battle's sentence included no period of parole and he was sentenced to no determinate term, it was improper to impose the parole revocation fine. (See People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)