People v. Battle

• Decision Date: 16 November 2011
• Docket Number: C063596.,Nos. C063012,C063013,s. C063012
• Citation: 198 Cal.App.4th 50,2011 Daily Journal D.A.R. 11989,11 Cal. Daily Op. Serv. 10028,129 Cal.Rptr.3d 828
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Arthur James BATTLE III, Defendant and Appellant. The People, Plaintiff and Respondent, v. Isaiah Dupree Barron, Defendant and Appellant. The People, Plaintiff and Respondent, v. Vardan Abramyan, Defendant and Appellant.

198 Cal.App.4th 50

129 Cal.Rptr.3d 828

11 Cal. Daily Op. Serv. 10,028

2011 Daily Journal D.A.R. 11,989

The PEOPLE, Plaintiff and Respondent,

v.Arthur James BATTLE III, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Isaiah Dupree Barron, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Vardan Abramyan, Defendant and Appellant.

Nos. C063012, C063013, C063596.

Court of Appeal, Third District, California.

Aug. 9, 2011.

Review Denied Nov. 16, 2011.

Jeffrey S. Kross, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant Arthur James Battle III.

Richard A. Levy, Torrance, under appointment by the Court of Appeal, for Defendant and Appellant Isaiah Dupree Barron.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Vardan Abramyan.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon, Julie A. Hokans, Darren K. Indermill, and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

NICHOLSON, J.

Norik Abramyan (Norik) was shot and killed by two assailants as he sat in his car in the parking lot of a Hollywood Video store. The two assailants, defendant Arthur James Battle III and Jason Dillingham, the latter not involved in this proceeding, were hired by defendant Isaiah Dupree Barron, who was hired by Norik's son, defendant Vardan Abramyan (Abramyan), to commit the murder. Convicted by separate juries of conspiracy to commit murder and murder with special circumstances, the three defendants appeal. We consolidated the appeals for argument and decision only.

As to each defendant, we strike the parole revocation fine imposed and suspended pursuant to Penal Code section 1202.45. Imposition of the fines was improper because each defendant was sentenced to an indeterminate term of life without parole.

Except for their contentions concerning the parole revocation fines, the defendants' contentions on appeal reveal no prejudicial error. We therefore modify each judgment and affirm.

FACTS ¹

Abramyan approached Barron, an acquaintance, about killing Norik. He agreed to pay Barron $4,000 for the killing and, a few days before the killing, gave Barron $200. The evening before the killing, Abramyan gave Barron an additional $1,800. Abramyan asked Barron if Barron was going to commit the killing alone, and Barron replied, “Don't worry about it.”

Barron recruited Battle and Dillingham to assist him in killing Norik. He offered, and eventually paid, each of them $500.

On July 30, 2006, Lawrence Stringer accompanied Barron, Battle, and Dillingham to a liquor store. Barron told Stringer that they were going to kill someone for money. Stringer said that he did not want to be involved. Barron, Battle, and Dillingham each had a handgun.

The car, carrying Barron, Battle, Dillingham, and Stringer, stopped at an apartment complex. All but Stringer left the car and walked into the complex where they met with Abramyan. A short time later, Barron, Battle, and Dillingham returned to the car. Norik drove up and walked into the complex. Barron, Battle, and Dillingham followed on foot, but they soon came running back to the car and said that they had not shot Norik because there were other people around.

Abramyan called Barron by cell phone, and they agreed to meet at the Hollywood Video store where Abramyan would bring Norik. Barron, Battle, Dillingham, and Stringer drove to the Hollywood Video store and parked behind the store. Barron, Battle, and Dillingham agreed that Battle and Dillingham would do the shooting and Barron would be the driver.

Abramyan and Norik arrived at Hollywood Video in a white Kia and went into the store. After a while, they returned to the car, but Abramyan told Norik that he had to go back into the store to use the restroom. Abramyan again returned to the car but went back into the store, telling Norik he left his cell phone in the restroom.

Meanwhile, Battle and Dillingham walked around to the front of the store, while Barron and Stringer waited in the car behind the store. After waiting for a while, Barron drove around to the front of the store. He spoke to Battle and Dillingham, who were smoking cigars, and encouraged them to shoot Norik. Barron then drove back behind the store to wait. After a few more minutes, Barron told Stringer to go get Battle and Dillingham because, in Stringer's words, “they weren't going to do it.” Stringer got out of the car, but before he could walk around the car he heard gunshots.

Battle and Dillingham had waited in the parking lot for a total of about 30 minutes, anxious and pacing, with gloves on and bandanas around their necks. When Norik was alone in the car, Battle and Dillingham put the bandanas up over the lower part of their faces, drew handguns, and ran toward the car, with Dillingham ahead of Battle. They stopped next to the car, on the driver's side, and shot at Norik. Battle and Dillingham then returned to the car driven by Barron, and they sped away.

Norik died at the scene.

After the murder, Abramyan arranged to have the last $2,000 delivered to Barron.

PROCEDURE

The district attorney filed an amended information charging Battle, Barron, and Abramyan with conspiracy to commit murder (count one; Pen.Code, §§ 182, subd. (a)(1); 187, subd. (a)); and murder with financial-gain and lying-in-wait special circumstances (count two; Pen.Code, §§ 187, subd. (a); 190.2 subd. (a)(1) & (15)). As to each count, it was further alleged that Battle personally discharged a firearm causing death (Pen.Code, § 12022.53, subd. (d)) and Barron and Abramyan were involved in an offense in which a principal was armed (Pen.Code, § 12022, subd. (a)(1)).

Battle, Barron, and Abramyan were tried jointly, but each had a separate jury. The juries found each defendant guilty on both counts and found all enhancement and special circumstance allegations true.²

The trial court sentenced Battle to an indeterminate term of life without possibility of parole on count two, with an additional 25 years to life for personally discharging a firearm causing death. On count one, the court imposed an indeterminate term of 25 years to life, with an additional 25 years to life for personally discharging a firearm causing death. The sentence on count one was stayed pursuant to Penal Code section 654.

The trial court sentenced Barron to life without possibility of parole on count two, with an additional year for the arming of a principal. On count one, the court imposed an indeterminate term of 25 years to life, with an additional year for the arming of a principal. The sentence on count one was stayed pursuant to Penal Code section 654.

The trial court sentenced Abramyan to life without possibility of parole on count two, with an additional year for the arming of a principal. On count one, the court imposed an indeterminate term of 25 years to life, with an additional year for the arming of a principal. The sentence on count one was stayed pursuant to Penal Code section 654.

DISCUSSION

IBattle's Contentions

A. Peremptory Challenge of Juror

During selection of Battle's jury, the prosecution used a peremptory challenge to excuse an African–American juror. Counsel for Battle made a motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748( Wheeler ) (see also Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69( Batson )), essentially asserting that the prosecution's use of the peremptory challenge violated his constitutional rights. The trial court denied the motion. Battle, who described himself at trial as “half African American,” contends that the trial court erred by denying his Wheeler motion.

1. Relevant Law

“ ‘A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.]” ( People v. Hutchins (2007) 147 Cal.App.4th 992, 996, 55 Cal.Rptr.3d 105.)

“In a recent decision, the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant's are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” ( People v. Cornwell (2005) 37 Cal.4th 50, 66–67, 33 Cal.Rptr.3d 1, 117 P.3d 622, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, 87 Cal.Rptr.3d 209, 198 P.3d 11.)

“The three-step Batson analysis, however, is not so mechanical that the trial court must proceed through each discrete step in ritual fashion.” ( People v. Adanandus (2007) 157 Cal.App.4th 496, 500, 69 Cal.Rptr.3d 25.) “[W]here the ‘ “ ‘trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court's ruling. Because Wheeler motions call upon trial...