California Court of Appeals, Third District, Yolo
FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of Yolo County, No.
CRF120516 Paul K. Richardson, Judge. Remanded for further
proceedings with directions.
D. C. Manjarrez, under appointment by the Court of Appeal,
for Defendant and Appellant.
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.
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.
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.
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.
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.
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
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
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.
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
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.
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).
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.
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
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.
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.
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.
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.
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.
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
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.
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
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.
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
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.
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.