(Super. Ct. No. 08F04155)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Gerald Hackett of committing four assaults with a firearm (Pen. Code, § 245, subd. (b))*fn1 against Paul Ma'ae, Douglas Ducart, Eric James, and Inga Lopes. The jury also convicted defendant of being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1)), and found true allegations that defendant personally used a firearm in committing the assaults against Ma'ae, Ducart, James, and Lopes (§ 12022.5, subds. (a) & (d)).
The trial court found defendant had six prior felony convictions, three of which were strikes within the meaning of sections 667, subdivisions (b) through (i), and 1170.12. The trial court also found that defendant failed to prove he was not guilty by reason of insanity.
On appeal, defendant contends (1) the prosecution engaged in group bias by using two peremptory challenges in a racially discriminatory manner, (2) the trial court violated his confrontation rights when accepting the parties' stipulation to the admission of psychological reports into evidence during the sanity phase of trial, and (3) insufficient evidence supports the trial court's finding that he has three prior serious felony convictions.
We conclude that the record shows the trial court properly concluded the prosecution did not engage in group bias in exercising its peremptory challenges. We find defendant waived his confrontation rights when the defense stipulated that the court could consider the psychologists' reports. And, we reject defendant's challenges to the sufficiency of the evidence showing he has three prior strikes. As the People point out, the abstract of judgment mistakenly indicates that defendant received concurrent life terms for assaults with a firearm when the trial court actually imposed consecutive sentences. Accordingly, we affirm defendant's convictions but direct the trial court to correct the abstract of judgment.
FACTUAL AND PROCEDURAL HISTORY
On May 15, 2008, several residents of the Los Robles Apartments complex in Sacramento were hanging out on the front lawn. At approximately 10:00 p.m., 15-year-old Ducart left his apartment to talk to his mother, Kristy Terry. Ducart was holding his mother's cell phone when defendant appeared. Defendant was waving a handgun around and angrily ranting that he had cancer.
Defendant began accusing the other tenants of stealing his phone. He put his gun to Ducart's head and Ducart implored, "I don't want any problems. Please don't shoot me." Defendant responded, "[Y]ou shut your mouth, or I'll blow your fucking head off." Terry told defendant, "[T]hat's my 15 year old son. You have a gun to his head." Defendant pointed the gun at her and threatened, "[S]hut up bitch, I'll kill you." Ducart turned and ran back toward the apartments. As Ducart hid behind a pillar, he heard a gunshot hit a window above his head.
Eric James went outside to try to calm defendant down with promises to send a friend to the store to buy some beer. Defendant pointed the gun to James's head and declared, "I'm going to fucking kill you." Ma'ae, who was nearby, went over to defendant and pushed defendant's hand to point the gun away from James's head. The push by Ma'ae caused defendant to fall to the ground and hit his head on the dirt. When defendant attempted to get up, he fell back to the ground on his face.
Ma'ae turned and began to walk back to his apartment. Defendant yelled at Ma'ae, "[Y]ou pushed me. Now I'm going to kill you." Defendant shot Ma'ae twice. Lopes threw herself on Ma'ae, her husband, to protect him. Lopes screamed, "No, no" and pushed the gun away. Defendant put the gun to Lopes's head, called her a bitch and threatened to kill her too. Defendant then walked away.
City of Sacramento police officers responded to the scene and arrested defendant. A blood sample drawn from defendant after his arrest indicated his blood alcohol content was .20 percent.
The defense called Janice Nakagawa, a licensed psychologist, as a witness. Dr. Nakagawa testified that, at the time of the offenses, defendant suffered from a psychotic spectrum disorder with depression, which caused him to experience hallucinations, delusional thinking, and paranoia. Dr. Nakagawa opined that a person with defendant's mental illness might lack the capacity to form the specific intent to kill.
After the jury found defendant guilty of four counts of assault with a firearm, a bench trial ensued on the question of defendant's sanity at the time of the offenses. The parties submitted the issue of defendant's sanity on the reports of three doctors, including Dr. Nakagawa, in addition to Dr. Nakagawa's testimony at trial. The court found that defendant failed to prove his insanity at the time of the offenses.
The trial court sentenced defendant to a prison term of 236 years to life, comprising a determinate term of 100 years consecutive to a term of 136 years to life. Defendant timely filed a notice of appeal.
Defendant contends the trial court erroneously denied his Batson/Wheeler*fn2 motions after the People engaged in group bias by using peremptory challenges to excuse two African-Americans from the jury. We are not persuaded.
The court excused the first prospective African-American juror based on a claim of hardship. The next prospective African-American juror, N., was called to the jury box after the first round of peremptory challenges had been made. The court asked N. about his involvement in a domestic violence incident. N. explained that he was arrested in 2005 after a dispute with his girlfriend. Although he spent two days in jail, he never was charged. N. stated he was initially upset with the officers because they had not also arrested his girlfriend. Nonetheless, he did not believe the incident would affect his evaluation of testimony by police officers.
During the next round of peremptory challenges, the prosecutor excused N. Defense counsel made a Wheeler motion.*fn3 Without requiring a prima facie showing of race discrimination, the trial court asked the People to respond. The prosecutor stated: "As to [N., he] is an African-American gentleman for the record. [¶] He indicated that he, himself, was arrested for a domestic violence issue back in 2005 and that had been between himself and his girlfriend. [¶] He indicated that he did not think that it was fair and that he was arrested and that his girlfriend was not also arrested in that case. [¶] He indicated that no charges were filed. However, he did say that he did think he was not happy with law enforcement at the time of the arrest. [¶] But then thereafter since charges weren't filed he still thinks that he would be able to be fair with law enforcement. [¶] But given that experience of domestic violence is typically a crime of violence against another person that they're close to and that he had that unfortunate experience with law enforcement, I would be excusing him for that purpose."
Defense counsel replied, "We didn't have real access to his questionnaire because we couldn't read it, so we used the Court's copy. [¶] I think he sufficiently qualified his answer that everything related to that domestic violence. [¶] Any dissatisfaction he felt with the police was at that time back then. Now he says he could be a fair, impartial juror. [¶] I thought he was articulate. I -- his answers were clear and concise. Everything related to the arrest back at that time, and I think he would be -- could be a fair impartial juror now. I don't think anything he said will rise to a reason to strike him. [¶] He is an African American gentleman. My client is an African American gentleman. They come from the same cognizable class of individuals, African American heritage from my view. And I would ask the Court to take Court recognition of that."
The prosecutor responded: "I also state that there is domestic violence history in the defendant's past. That is one of the priors that if the defendant were to testify, I would be impeaching him with. [¶] And it is one of his prior convictions that I would intend to bring out through Dr. Nakagawa in relation to her testimony and considering what she considered in making her determination about mental illness suffered by the defendant. In fact, that he has a prior history of violence. That is something she should have considered. That maybe she was more dismissive with. [¶] It's the same type of crime that [N.] had been arrested for. [¶] I also think that there are kind of -- this case deals with issues of control and domination by the defendant. I think those are also issues that go along with domestic violence as well. [¶] So that's another reason I would be dismissing [N.] because of his personal experience with those."
The trial court denied the defense's motion and found the People's stated reasons for exercising a peremptory challenge against N. to be credible.
The court then questioned another African-American juror, G., about two answers on his questionnaire form. G. had stated that he was serving as a grand juror and that he was under a court-appointed conservatorship. G. quickly admitted that neither answer was correct.
The prosecutor used a peremptory challenge to excuse G. Defense counsel again moved for a mistrial under Wheeler. The defense asserted that G. was a "person of color" and "appears to be [a] person of African American descent." The trial court again asked the prosecutor to respond ...