People v. Allen

• Decision Date: 20 July 1989
• Docket Number: No. A043436,A043436
• Citation: 260 Cal.Rptr. 463,212 Cal.App.3d 306
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas ALLEN, Defendant and Appellant.

Page 463

260 Cal.Rptr. 463

212 Cal.App.3d 306

The PEOPLE, Plaintiff and Respondent, v. Thomas ALLEN, Defendant and Appellant.

No. A043436.

Court of Appeal, First District, Division 4, California.

July 20, 1989.

Certified for Partial Publication ^*

Review Denied Oct. 11, 1989.

John Murcko, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Acting Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Matthew P. Boyle, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ANDERSON, Presiding Justice.

Defendant Thomas Allen (appellant) appeals a judgment imposing a five-year prison sentence following his conviction by jury for sale of narcotics (cocaine).

I. Factual and Procedural Background

On March 23, 1988, at approximately 6:30 p.m., Officer Phillips, a member of the Oakland Police Department Task Force, ¹ had with him $20 and $10 bills, marked and photocopied, for the purpose of conducting undercover narcotics purchases. Officer Phillips was working with two partners, Officers Estelle and Patrick; wearing civilian clothes and riding in a civilian vehicle, the officers went to the area of 73rd and Holly Streets.

At that location the officers were approached by an adult male, later identified as appellant. Officer Estelle asked appellant "What's up, man?" Appellant, leaning down to look into the vehicle, asked, "What are you looking for?". Officer Phillips replied that he was looking for a "dove." ² Appellant answered, "I got it. Follow me. Task Force is around the corner."

Appellant then began jogging southbound and then westbound to a walkway leading toward 7126 Favor Street. The officers trailed him slowly in their vehicle and then parked. At the house appellant knocked on the door and entered. After about 15 seconds, appellant came out with another male who was identified by the officers as codefendant Jones. Appellant, who stayed at the bottom of the stairs during the transaction, told Jones: "That's him." Thereupon, Jones walked to the east portion of the building and asked Officer Phillips to follow him. As the officer approached Jones, Jones displayed three white rock-like objects in his hand and asked him how many he wanted. Phillips answered: "Just one dove." Thereafter, Jones gave the officer one of the rocks and received a recorded $20 bill from Phillips.

Shortly thereafter, the arresting team arrived. Appellant and Jones were pointed out by Officer Phillips and also described by Officer Estelle. Jones tried to escape but was apprehended a couple of blocks away. A $20 bill of controlled currency was found in his hand. Appellant did not attempt to escape and was arrested in front of the residence at 7126 Favor Street. Upon his arrest appellant furnished the false name of "Troy Johnson."

Appellant, testifying at trial, admitted that he had been in the area at the time of the drug transaction and also that he had told Officer Phillips he (the officer) might be able to get a "dove" on Favor Street somewhere. Appellant maintained, however, that he went to the residence in question only to meet his girlfriend there and that it was mere coincidence that he left the house in the company of codefendant Jones. Appellant categorically denied any participation in the drug transaction and/or giving a false name to the arresting police officer.

Appellant and codefendant Jones were charged with sale of cocaine in violation of HEALTH AND SAFETY CODE SECTION 11352³. The information further alleged that appellant had previously been convicted of possession of marijuana for sale ( § 11370) and possession of narcotics ( § 11350) for which he had served a prison term within the meaning of Penal Code section 667.5, subdivision (b). Codefendant Jones changed his plea to guilty at the conclusion of the presentation of evidence and was released on probation. Appellant was found guilty by the jury as charged, and the prior narcotics conviction allegation was also found to be true. Appellant was sentenced to prison for four years for the sale of cocaine and to one year consecutive for the prior conviction enhancement.

II. Discussion

On appeal appellant contends that the trial court committed prejudicial error by refusing to declare mistrials for: (1) improper use of peremptory challenges (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) and (2) erroneous admission of expert evidence (People v. Brown (1981) 116 Cal.App.3d 820, 172 Cal.Rptr. 221). We find no merit to either contention and affirm the judgment.

A. Appellant's Wheeler Motions Were Properly Denied

The record shows that during voir dire examination of the veniremen the prosecution used fourteen peremptory challenges: six against Blacks, five against Whites and three against Hispanics. As finally selected, the jury consisted of one Black, two Hispanics and nine Whites. During the selection process appellant repeatedly objected and sought mistrials on the ground that the prosecutor was using his peremptory challenges to remove Black and Hispanic persons from the jury in violation of People v. Wheeler supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748. The trial court concluded that in all but one instance appellant had failed to make a prima facie showing of group bias, and it denied the motions. As to the one challenge in which the court found a prima facie case, the prosecutor satisfied the court that his challenge was not made for an impermissible purpose. Appellant contends that the disproportionate exclusion of Black and Hispanic persons from the jury created a prima facie case of racial discrimination which shifted the burden to the prosecution to prove that the peremptory challenges in question were not predicated on group bias. He further claims that the trial court's failure to demand an explanation from the prosecution regarding these peremptory challenges constituted prejudicial error which requires reversal. We reject his contentions for several reasons.

It is, of course, well recognized that the parties may not use peremptory challenges to remove jurors solely on the basis of group bias. ⁴ As our Supreme Court has stated: "the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury from a representative cross-section of the community under article I, section 16, of the California Constitution." (People v. Wheeler supra, 22 Cal.3d at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748, emphasis added.) The United States Supreme Court similarly held in Batson v. Kentucky (1986) 476 U.S. 79, 97, 106 S.Ct. 1712, 2723, 90 L.Ed.2d 69, that the Equal Protection Clause of the United States Constitution forbids peremptory challenges of potential jurors solely on account of their race when the defendant is a member of that race. However, both state and federal law emphasizes that peremptory challenges historically have served as a valuable safety valve in the process of jury selection, and that such challenges are permissible as long as they are based on specific bias. (People v. Johnson, supra, 47 Cal.3d at p. 1215, 255 Cal.Rptr. 569, 767 P.2d 1047; see also Batson v. Kentucky, supra, 476 U.S. at p. 91, 106 S.Ct. at p. 1720.) While specific bias is broadly defined to include a wide spectrum of evidence suggestive of juror partiality, the cases list concrete instances which may support such an inference. For example, specific bias may be properly inferred from the juror's prior arrest or conviction, or his complaint of police harassment. Likewise, a prior arrest or conviction of the juror's relative, etc. may furnish a basis for such an inference. (People v. Wheeler, supra, 22 Cal.3d at pp. 275, 277, fn. 18, 148 Cal.Rptr. 890, 583 P.2d 748; People v. Johnson, supra, 47 Cal.3d at pp. 1215-1216, 255 Cal.Rptr. 569, 767 P.2d 1047.)

The procedure for raising the issue of group bias is likewise settled. As stated in Wheeler: "If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias." (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748, fn. omitted, emphasis added; People v. Turner (1986) 42 Cal.3d 711, 717-718, 230 Cal.Rptr. 656, 726 P.2d 102.)

It is clear that the burden of justifying the exercise of peremptory challenges shifts to the exercising party only if the court finds that the objecting party has made out a prima facie case of group discrimination. (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748; People v. Johnson, supra, 47 Cal.3d at p. 1216, 255 Cal.Rptr. 569, 767 P.2d 1047.) The determination of whether a prima facie case has been established by the moving party and/or whether the prima facie case of exclusion for group bias has been rebutted by the opponent, is largely within the province of the trial court whose decision is subject only to limited review. (People v. Wheeler, supra, 22 Cal.3d at p 282, 148 Cal.Rptr. 890, 583 P.2d 748; Batson v. Kentucky, supra, 476 U.S. at 98, fn. 21, 106 S.Ct. at 1724, fn. 21.)

1. The Specific Peremptory Challenges

In the case at bench the trial court's finding that appellant either failed to make a prima facie case of group bias and/or that the prima facie case was rebutted by the prosecution, is well supported by the record. The...