(Super. Ct. No. SF106351A)
The opinion of the court was delivered by: Blease , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Bryant Keith Briggs of residential robbery (Pen. Code, § 211)*fn1 , residential burglary (§ 459), attempted murder (§§ 664/187), false imprisonment (§ 236), and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The jury further found true allegations that defendant personally inflicted great bodily injury on the victim and personally used a firearm in the commission of the offense. (§§ 12022.7, subd. (a), 12022.5, subd. (a).)
After the trial court denied defendant's motion for new trial, it sentenced him to a term of 33 years and 8 months to life in prison.
Defendant argues: (1) the prosecutor's use of peremptory challenges to remove two prospective jurors was based on group bias, (2) there was insufficient evidence that he possessed crack cocaine, (3) the trial court erred in instructing the jury it could consider the witness's level of certainty in evaluating an eyewitness's identification, and (4) he received ineffective assistance of counsel.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the offenses, the victim, David Campbell, regularly got high, his drug of choice being crack cocaine. He went to the Jamestown Apartments because it was a gathering place for people to go to get and use drugs. On the date in question, he went to apartment 232 with Shonda Batson to get high and have sex. Campbell brought crack cocaine with him, which the two of them smoked.
After they smoked all of the crack he brought with him, they decided they wanted more. Campbell had no more money. Batson told Campbell she had some money and knew someone from whom she could buy drugs. She agreed to go get more drugs.
When Batson returned to the apartment, she had defendant with her. Campbell saw Batson give money to defendant and saw defendant give crack cocaine to Batson. Campbell was hazy on the specifics, but he remembered defendant saying something about money being owed and pointing to him (Campbell). Campbell told defendant he just wanted the dope.
Batson proceeded to smoke the dope she purchased, and did not give any to Campbell. Campbell decided to leave, and went out to the walkway outside the apartment. Defendant was on the walkway. He told Campbell that Campbell owed him money for the dope. Campbell said he hadn't smoked any of the dope, and owed him no money. Defendant told Campbell that they needed to go back into the apartment and talk about it. About that time another man came up behind them, identified as Harvest Thomas, and Campbell felt surrounded. Campbell went back into apartment 232 with defendant and Thomas, because he felt there would be violence if he refused.
After the trio was inside the apartment and the door was closed, defendant and Thomas pulled guns on Campbell and demanded money. Thomas hit Campbell on the side of the head with his gun. Campbell opened his wallet to show that he had no money.
Defendant then demanded that Campbell take off his clothes. When Campbell had undressed, defendant told him to go outside. Campbell refused. Campbell, deciding to fight back, grabbed Thomas, threw him across the stair rail, and grabbed his gun. Campbell and Thomas struggled. Defendant dived on top of them and the three fell onto the couch. Defendant pointed his gun at Campbell and shot him in the head.
Campbell survived the gunshot wound. He was treated in the emergency room for a gunshot wound to the left temple. The bullet lodged in Campbell's neck. Blood tests indicated Campbell's blood alcohol level was 0.097, and his urine tested positive for cocaine.
Campbell picked defendant and Thomas out of separate photo lineups. When Campbell was shown defendant's photograph he stated "He's . . . the guy that shot me."
Law enforcement first searched Thomas's residence. One of the items seized was a cell phone. There were pictures in the cell phone of clear plastic baggies containing a substance, of clear plastic baggies containing money, and of an individual fanning money. Also, the address book of the cell phone contained the name Brian and a phone number that was previously defendant's phone number.
The next day, officers searched apartment 222 at the Jamestown Apartments, which belonged to defendant's mother. The search uncovered a repair receipt, in defendant's name for an automobile, and a mini scale.
Defendant was arrested in apartment 231 of the Jamestown Apartments, the apartment directly next door to the apartment where the shooting occurred. In a search incident to the arrest, the officers found $886 in cash, three grams of marijuana packaged for sale, a small gram scale, a notebook which had buy-owe notations, and some .38-caliber bullets.
During jury voir dire, defense counsel made a motion under Batson v. Kentucky (1986) 476 U.S. 79, 97 [90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler), arguing that the prosecutor had systematically excluded African-Americans from the jury. The trial court ruled that defendant had not established a prima facie case of racial bias. Defendant raises the issue again on appeal.
In reviewing the trial court's ruling, the "dispositive question . . . is whether defendant made a prima facie case of group bias." (People v. Howard (2008) 42 Cal.4th 1000, 1016.) Where, as here, it is unclear what standard the trial court used to make its determination, we review the record independently to determine whether defendant made a " ' "showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.]' [Citations.]" (Id. at pp. 1016-1017.) Having reviewed the record, we find no inference of discrimination was established. Defense counsel cited two potential jurors excused by the prosecutor. The first was T.A. Defense counsel made the following comments about T.A.: "She was another African American female in my opinion. [¶] . . . [T.A.] was employed, eligibility worker, Alameda County. Said she could be fair. She answered all the questions properly. She did have a brother who was convicted of possession for sales. She said she could put that behind her. We kept her on the panel quite sometime [sic], and then for no apparent reason, as far as I can understand, she was excused."
Defense counsel made the following comments about L.D.: "I believe that [L.D.] . . . she had [a] Hispanic surname but to me she was clearly black, African American. That was my take on it, Your Honor. [¶] . . . [¶] . . . She was a supervisor at Home Depot, supervised three hundred people, had three girls, answered all questions properly. Was left on the jury quite some time. And for no apparent reason as far as I can tell, she was excused."
Defense counsel also stated that defendant and the victim in the case were African-American. The prosecutor referred to the fact that two other African-American prospective jurors had been excused for cause. One was excused for cause because she was breast-feeding. One was excused for cause because defense counsel had previously represented the man's son. Defense counsel stated that as of the time of the motion there were no other African-Americans on the jury. Following the motion, one more juror and three alternate jurors were seated. The record does not indicate their race.
The trial court first asked the prosecutor if he agreed that L.D. was African-American, stating that it did not appear to the court that she was. The prosecutor, who was African-American, stated that L.D. "did not in any way appear African American. Her complexion is [a] little bit darker than some individuals who happen to be Hispanic. She certainly seems to [fall] within the [ambit] of that social, racial group, however you classify that."
The prosecutor then proceeded to justify his challenges to the two potential jurors. He stated that the primary reason he excused T.A. was that her brother had been convicted for the sale of drugs, and he was dissatisfied with her answers when she was questioned about it. When asked, she stated: "He did it. He got caught." T.A. was one of the first potential jurors questioned, and as voir dire went along, the prosecutor stated he thought other jurors would be better, strategically, for the prosecution.
As to L.D., the prosecutor stated that her work was a positive factor in her favor, but that she had three young children and appeared to be under the age of 30. The prosecutor stated: "I didn't feel she had enough life experience based on what she outlined to be able to be on this particular jury. [¶] My preference in regards to jurors are individuals who are above the age of 35. If they're above the age of 35, I generally feel they have enough life experience to be able to, number one, understand and pick up on credibility issues which come up on the stand. So based on that, I felt there was a superior juror. [¶] . . . [¶] Each of the individuals [who were put in L.D.'s chair] were all older than [L.D.] That's the primary reason I moved her down. It was a question of strategy. There was no other rationale for doing so."
In this case defendant failed to make a sufficient showing that L.D. was a member of the racial group he asserted the prosecution was attempting to keep off the jury. Although defense counsel asserted that L.D. was Black, she had a Hispanic surname, and both the ...