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People v. Douglas

California Court of Appeals, Third District, Yolo

April 11, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
BRADY DEE DOUGLAS, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEAL from a judgment of the Superior Court of Yolo County, No. CRF120516 Paul K. Richardson, Judge. Remanded for further proceedings with directions.

          Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Kari Ricci Mueller, Deputy Attorney General, for Plaintiff and Respondent.

          HULL, J.

         After defendant Brady Dee Douglas's former boyfriend, a male prostitute, told him Jeffrey B. had shorted him money following a prearranged sexual encounter, defendant and codefendant Clifton Sharpe tracked down Jeffrey and demanded the unpaid money. During a high speed freeway chase, Jeffrey swerved his car into defendant's vehicle after defendant pointed a gun at him, shooting several times. Jeffrey was able to escape unharmed.

         A jury convicted defendant of attempted second degree robbery (Pen. Code, §§ 21a, 211, 212.5, subd. (c) & 213, subd. (b); unless otherwise set forth, section references that follow are to the Penal Code), assault with a semiautomatic firearm (§ 245, subd. (b)), shooting at an occupied motor vehicle (§ 246), drawing or exhibiting a firearm against a person in a motor vehicle (§ 417.3), and carrying a loaded firearm with intent to commit a felony (§ 12023, subd. (a)). The jury found true certain firearm enhancements attached to the robbery and assault charges. (§ 12022, subd. (a)(1) and 12022.5, subd. (a).) It acquitted defendant of pimping (§ 266h, subd. (a)), and found not true other alleged firearm enhancements. (§ 12022.53, subds. (b) & (c).) Defendant was sentenced to an aggregate term of six years in state prison.

         On appeal, defendant contends the court erred in denying his Wheeler motion after the prosecutor peremptorily excused two openly gay prospective jurors. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); see also Batson v. Kentucky (1986) 476 U.S. 79');">476 U.S. 79 [90 L.Ed.2d 69] (Batson).) He also argues the court erroneously instructed the jury with CALCRIM No. 460, the pattern jury instruction for attempt, which he asserts is unconstitutionally vague and impermissibly creates a mandatory presumption concerning an accused's intent. We reject defendant's instructional error challenge, but find the court did not properly evaluate defendant's Batson/Wheeler motion. We therefore remand for further proceedings as discussed below.

         Facts and Proceedings

          A. The Incident

         In October 2011, defendant lived in Sacramento with Martin Andrade [defendant's former boyfriend] and Sharpe. At the time, Andrade was working as a male escort or prostitute. Andrade had arranged for Jeffrey to come to the house, where they engaged in sexual activities. Although defendant and Sharpe were home at the time, Jeffrey did not see them when he arrived at the house.

         After Jeffrey left, Andrade told defendant that Jeffrey had not paid the amount they had agreed upon for his services. Defendant and Sharpe then left the house to find Jeffrey. Sharpe was driving and defendant was in the front passenger seat.

         Defendant and Sharpe caught up to Jeffrey's car a short distance from the house. They pulled alongside his car and defendant yelled, “Where's your money at? Where is the money at?”

         Jeffrey drove off and defendant and Sharpe followed. Jeffrey became concerned and ran several stoplights to try to get away. He eventually got on the freeway and tried to lose defendants. A high speed chase ensued. Defendant threw a water bottle at Jeffrey's car. According to Jeffrey, defendant then pointed a gun at him through the passenger window. Jeffrey, fearing for his safety, swerved his vehicle into defendant's car. Sharpe lost control of the car, which started spinning. Defendant shot several times at Jeffrey and one bullet hit Jeffrey's car. Defendant claimed he shot in self-defense only after Jeffrey swerved into his car.

         Jeffrey's car was damaged, but he managed to drive a short distance and then run for help. Meanwhile, defendant's car, which had become disabled on the freeway, was hit by two other passing motorists.

         When law enforcement arrived, defendant was untruthful about the events leading up to the collision, initially claiming Jeffrey's car had sideswiped his vehicle for no reason. He did not inform the officers about shooting at Jeffrey's car. Police eventually recovered a semiautomatic handgun in the spare tire compartment of defendant's car, and two spent casings were found on the freeway shoulder that matched the ammunition in the gun.

          B. Trial Proceedings

         A March 2012 information jointly charged defendant and Sharpe with attempted second degree robbery (§ 21a, 211, 212.5, subd. (c), 213, subd. (b), count 1), assault with a semiautomatic firearm (§ 245, subd. (b), count 2), shooting at an occupied motor vehicle (§ 246, count 3), exhibiting a firearm at an occupied motor vehicle (§ 417.3, count 4), and carrying a loaded firearm with felonious intent (§ 12023, subd. (a), count 5). Defendant was charged with an additional count of pimping (§ 266h, subd. (a), count 7), while Sharpe was charged with permitting the discharge of a firearm from a vehicle (§ 12034, subd. (b), count 6).

         1. Jury Selection

         Jury selection began in May 2013. During voir dire, both the prosecutor and defense counsel asked questions about the panel's feelings or perceptions of homosexuality and sexual orientation since defendant and several witnesses were gay. No one on the panel responded that they would have a problem deciding the case based on the facts and not on the ground of sexual orientation.

         Based on answers given during voir dire, it became known that two men in the jury venire were openly gay. In discussing their general biographical information, prospective jurors D.J. and S.L., both explained that they lived with their male partners.

         D.J. had a doctorate degree from U.C. Berkeley in molecular biology, and was the director of a biodramatic company that specialized in growing microorganisms to prevent crop damage. He disclosed that he knew a public defender in Yolo County where the case was being tried. She was originally his kickboxing instructor, but they had since become friends and he said he knew her “fairly well.” He admitted having lunch with her the previous day, and also that he had recently attended her baby shower. He estimated he saw her about once a week, and disclosed that she visited his home.

         The public defender had discussed her work with D.J., although she did not disclose specific details of her cases to him. She had also told him about different attorneys in the Public Defender's office as well as the District Attorney's office. She had never mentioned the prosecutor assigned to try defendant, however.

         D.J.'s public defender friend told him that “she would never go to the dark side, ” which D.J. explained meant that she would never become a district attorney. Following up on this statement, the prosecutor asked whether because he was purportedly from “the dark side” that D.J. believed the charges were somehow contrived or that his ability to listen to the evidence and apply the law would be affected. D.J. responded that the term “dark side” was her term not his, and that he could make a decision based on the facts of the case.

         D.J. conceded that he was biased or prejudiced about firearms and that he strongly believed the Second Amendment should be revoked. Despite his dislike of guns, D.J. said this bias would not prevent him from following the judge's instructions. In probing this topic further, the prosecutor asked whether there were any other biases, besides his bias against the Second Amendment, of which they should be aware. D.J. responded: “No, I think that's about it, you know, based on what I know about this case, that would be [the] only thing.” A short time later, the prosecutor exercised a peremptory challenge excusing D.J.

         Following the questioning of seven other prospective jurors and more peremptory challenges from both the prosecution and defense, S.L. was called into the jury box. Before inquiring about biographical information, the court asked whether any of the new potential jurors, including S.L., had any responses to or concerns about the issues raised by any previous questions posed by the court or the attorneys during voir dire. S.L. did not express any concerns with any prior questions or topics, nor did he offer any reason why he could not be impartial if picked for the jury.

         S.L. explained that he had graduated from high school and owned a travel agency. He had no prior jury service and said there was “absolutely no reason why [he could not] be fair.”

         When it was counsel's turn to question the new panel members, defendant's counsel asked if there was anything anyone would like to say to respond to one of his questions. No one answered, and defendant's counsel then said he had no more questions. Sharpe's counsel also had no questions for the new group of potential jurors.

         The prosecutor asked S.L. whether he could listen to testimony from a witness who had visited a male prostitute and judge their credibility fairly. S.L. responded that he “definitely” could listen to such testimony without prejudging the witness. S.L. also responded “no” when asked by the prosecutor whether he believed that persons engaged in illegal activities deserve what they get for engaging in such activities. He said, “yes” when asked whether if selected he could share his opinion about the facts of the case, work with others in applying those facts to the law, and use his common sense. A short time later, the prosecutor peremptorily excused S.L.

         Following S.L.'s excusal, Sharpe's counsel made a Wheeler motion, arguing the prosecutor had systematically used his peremptory challenges to excuse the only two openly gay men in the jury venire. Defendant's counsel joined in the motion. While Sharpe's counsel acknowledged that D.J. had apparently been good friends with the Yolo County public defender, he nonetheless argued that he could see no other reason why he or S.L. were excused except for them being openly gay men.

         Although the court was not sure whether sexuality was a proper subject for a Wheeler motion, he allowed the motion “out of an abundance of caution....” The prosecutor then gave his reasons for striking both potential jurors.

         According to the prosecutor, he excused D.J. based on his close relationship with the Yolo County public defender. He noted that D.J. had recently gone to her baby shower and that she had discussed the personality traits of several district attorneys in the prosecutor's office with him. He also cited D.J.'s statement that the public defender considered district attorneys as “the dark side, ” and stated that he did not believe the People could get a “fair shake in the case” from D.J.

         He excused S.L. based on his demeanor. The prosecutor said that when defendant's counsel got up, he observed that S.L. changed his body posture, leaned forward, and seemed to be more attentive. In contrast, when he spoke with him, the prosecutor perceived that S.L. seemed to be leaning back more and that his answers were very short and not descriptive. Neither ...


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