People v. Bernard
| Decision Date | 03 August 1994 |
| Docket Number | No. D018363,D018363 |
| Citation | 32 Cal.Rptr.2d 486,27 Cal.App.4th 458 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jemal BERNARD, Defendant and Appellant. |
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Janelle B. Davis, Supervising Deputy Atty. Gen., and Karl T. Terp, Deputy Atty. Gen., for plaintiff and respondent.
Jemal Bernard was convicted of one count each of first degree murder (PEN.CODE, § 1871, subd. (a)), second degree robbery (§ 211), kidnapping (§ 207, subd. (a)), and fraudulent use of another's credit card (§ 484f, subd. (2)). With respect to the murder, the special circumstance of felony murder during the commission of a robbery (§ 190.2, subd. (a)(17)) was found by the jury to be true. With respect to the murder, robbery, and kidnapping, the jury found Bernard used a firearm (within the meaning of § 12022.5, subd. (a)) and with respect to the robbery and kidnapping, caused great bodily injury (within the meaning of § 12022.7).
Bernard was sentenced to a total term of 33 years, 8 months to life in prison without the possibility of parole. The trial court imposed the upper term of 5 years as to the second degree robbery count, stayed the term pursuant to section 654, but imposed 3 years for the great bodily injury enhancement on that count without any stay under section 654. On appeal, Bernard asserts trial court error in denial of Wheeler 2 motions, as well as instructional and sentencing error. We affirm the judgment but modify the sentence.
On January 24, 1992, Bernard admittedly shot and killed James Brue on Green Valley Truck Trail in the Poway area of San Diego County, after having forced Brue at gunpoint to drive to that location. Thereafter, Bernard took Brue's credit cards to purchase goods.
Brue, 50 years old at the time of his death, was like an uncle to the Bugbee sisters, Cheyenne, Heather, and Ginger, who lived across the street from Brue for a period of years beginning in about 1986. Brue provided food, clothing, transportation and friendship to all three Bugbee sisters. This relationship continued even after the Bugbee girls moved from the neighborhood.
Specifically, Cheyenne Bugbee, 14 years old when she first met Brue in approximately 1986, considered her relationship with Brue to be one of friendship or that of an uncle and niece. During the last six months of Brue's life he basically kept Cheyenne fed and clothed.
Cheyenne first met Bernard at about the same time she first met Brue. At that time Bernard became Cheyenne's boyfriend until early 1991.
Bernard was uncomfortable with the relationship Cheyenne had with Brue. On Friday, January 24, 1992, Bernard shot Brue with the gun of a friend, Leonard Volpe. Bernard saw his friend Myron Smith later the same day and told him the car he was driving was Brue's. During the evening of January 24, 1992, Bernard, Smith, and one other friend went to a shopping mall and bought goods with credit cards of Brue's. Bernard made purchases at the mall using Brue's credit card.
On January 25, 1992, Bernard told Volpe, with whom he had been living, he had beaten up a person who was a mile down the Green Valley Truck Trail, covered in plastic. Volpe then advised police of the location of Brue's body. In fact, Judith Castagna had seen a car run off the Green River Truck Trail on the morning of January 24, 1992. When she approached the vehicle, she saw Bernard who Forensic pathologist Dr. Christopher Swalwell visited the crime scene on Green Valley Truck Trail while Brue's body was still present. The autopsy disclosed Brue sustained five gunshot wounds, one through the heart and lungs, and four to the back and shoulder area. Cause of death was multiple gunshot wounds.
told her the car was his mother's. David Plott, a City of Poway park ranger also saw Bernard on the morning of January 24, 1992, at the entrance to the Green Valley Truck Trail. Bernard seemed nervous, stated his car was stuck by the side of the road, stated initially the car was his, and then stated it was his father's car.
Bernard was apprehended on January 31, 1992, after fleeing from police officers.
Bernard's defense consisted almost exclusively of his own testimony.
He did not approve of Brue's relationship with Cheyenne, except for the 1988-89 time period. Bernard expressed his dislike for Brue to Cheyenne and felt Brue was doing things for Cheyenne Bernard should have done.
Bernard was using drugs (crystal) in January 1992 and drank every day. On the morning of January 24, 1992, he was waiting at a bus stop on Pomerado Road with beer and a gun he had taken from Volpe's house in a bag. He saw Brue stopped in his vehicle at a stoplight and gestured for him to pull over as Bernard wanted a ride to San Diego. Brue agreed to give him a ride.
Once in the car Bernard asked Brue who Cheyenne was seeing and whether Brue was still seeing Cheyenne. Bernard became upset when Brue told him Cheyenne and someone named Chris Geiger were seeing each other. Bernard pulled out the gun and ordered Brue to drive him to Geiger's house. Then, Bernard ordered Brue to drive him to Poway. Brue complied because Bernard had pulled a gun on him. At that time Bernard was scared and wanted to take Brue to a location, leave, and take the car. At that time he did not intend to shoot Brue.
Bernard and Brue drove to the Green Valley Truck Trail. Bernard told Brue to stay away from Cheyenne. Brue said he would not and called Bernard a "nigger." At that point Bernard shot Brue, covered him with plastic, and started to drive away when he went off the road. Bernard took a credit card from Brue's wallet to pay for a tow truck driver. Bernard later used Brue's credit cards on a shopping spree at Parkway Plaza.
Bernard argues the trial court erred when it denied his motions brought under Wheeler, supra, which bars the use of peremptory challenges to remove prospective jurors based upon group bias. Bernard contends the trial court misconstrued the Wheeler guidelines for determining whether there had been an impermissible use of peremptory challenges to remove prospective jurors based on group bias. After examining the entire record on this point we conclude the trial court correctly applied the Wheeler standard and properly found no Wheeler violation.
The right to a trial by a jury drawn from a representative cross-section of the community is guaranteed by article I, section 16 of the California Constitution. The use of peremptory challenges to remove prospective jurors based on group bias violates this right. (Wheeler, supra, at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748; accord Batson v. Kentucky (1986) 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69.) The procedural protocol for determining whether a Wheeler violation has occurred is itself set forth in Wheeler, 22 Cal.3d at pp. 280-282, 148 Cal.Rptr. 890, 583 P.2d 748, and has been consistently applied by our Supreme Court:
Bernard contends the third prong of the Wheeler test for establishing a prima facie Wheeler violation, i.e., a showing of a strong likelihood of exclusion because of group association, has been reduced to a "reasonable inference" of improper prosecutorial exclusion of prospective jurors. Bernard cites People v. Fuller (1982) 136 Cal.App.3d 403, 423, 186 Cal.Rptr. 283 to support the contention. Although the Fuller court expressed doubt as to whether the Supreme Court in Wheeler in fact intended a threshold prima facie standard consisting of a "strong likelihood" in light of the ultimate "reasonable inference" test to be utilized by the trial court, we are convinced the Supreme Court intended the meaning of its carefully crafted language, which provides proper procedural guidelines for a trial court, and reject any dictum in Fuller to the contrary.
First, we must begin by recognizing there is a presumption a party exercising a peremptory challenge is doing so on constitutionally firm ground. (Wheeler, supra, 22 Cal.3d at p. 278, 148 Cal.Rptr. 890, 583 P.2d 748.) At the threshold, such a basic presumption should be capable of being rebutted only by a strong showing, not a mere inference, given the consequence of shifting the burden of justification for exercise of the peremptory challenge to the party exercising the challenge. Thereafter, if a prima facie case of a Wheeler violation is established, the court in considering all the evidence need only find there exists a reasonable inference of...
To continue reading
Request your trial
-
People v. Johnson
...in so carefully crafted an opinion as the Wheeler opinion." (Id. fn. 25.) The Fuller view of Wheeler was repudiated in People v. Bernard (1994) 27 Cal.App.4th 458 which rejected the view "that a fair reading of Wheeler requires only that the court find a reasonable inference of group bias."......
-
Jones v. Broomfield
...F.3d 1190, 1196-97 (9th Cir. 2000), the Ninth Circuit noted that after the California Court of Appeals decided People v. Bernard , 27 Cal.App.4th 458, 32 Cal.Rptr.2d 486 (1994), which interpreted Wheeler , California state courts "applied a lower standard of scrutiny to peremptory strikes t......
-
People v. Davis
...to hear the murder charge on a theory of felony-murder rape. A similar claim was recently rejected in People v. Bernard (1994) 27 Cal.App.4th 458, 32 Cal.Rptr.2d 486. In that case, the defendant had successfully moved under section 995 to set aside the information as to the special circumst......
-
People v. Johnson
...the two terms to be different phrasing of the same standard. Language in a 1994 Court of Appeal decision, People v. Bernard (1994) 27 Cal.App.4th 458, 32 Cal.Rptr.2d 486, however, created some uncertainty. That case seemed to read the two terms as stating different standards, with "reasonab......