People v. Dunn

• Decision Date: 04 December 1995
• Docket Number: No. C016685,C016685
• Citation: 47 Cal.Rptr.2d 638,40 Cal.App.4th 1039
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9245, 95 Daily Journal D.A.R. 16,029 The PEOPLE, Plaintiff and Respondent, v. John Donald DUNN, Defendant and Appellant.

Page 638

47 Cal.Rptr.2d 638

40 Cal.App.4th 1039, 95 Cal. Daily Op. Serv. 9245,

95 Daily Journal D.A.R. 16,029

The PEOPLE, Plaintiff and Respondent, v. John Donald DUNN, Defendant and Appellant.

No. C016685.

Court of Appeal, Third District, California.

Dec. 4, 1995.

Review Denied March 13, 1996.

Certified for Partial Publication ^*

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Maureen A. Daly and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

SCOTLAND, Associate Justice.

A jury convicted defendant John Donald Dunn of first degree murder (Pen.Code, §§ 187, 189) ¹ and found he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court modified the verdict (§ 1181, subd. 6) to second degree murder because the court was not satisfied beyond a reasonable doubt that the killing was deliberate and premeditated. Sentenced to the upper term of five years for the section 12022.5 enhancement and to a term of fifteen years to life for second degree murder, defendant appeals claiming the trial court erred in denying his Wheeler motions (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (hereafter Wheeler )), committed Doyle error (Doyle v. Ohio (1976) 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98), and erred in imposing the upper term for the section 12022.5 enhancement.

In the published portion of this opinion, we reject defendant's contention that a comparative analysis of the prospective jurors who were excused by the prosecutor's peremptory challenges and those who were chosen to serve on the jury reveals that the race-neutral reasons stated by the prosecutor for excluding four blacks from the jury panel were pretextual and the challenges were discriminatory in violation of Wheeler. Defendant acknowledges the California Supreme Court has held that, in reviewing a claim of Wheeler error, "an appellate court will not reassess good faith by conducting its own comparative juror analysis." (People v. Montiel (1993) 5 Cal.4th 877, 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277.) Nevertheless, he asserts that federal constitutional jurisprudence, which is binding on the states, compels an appellate court to perform a comparative juror analysis, and to overturn the trial court's determination that a prosecutor acted in good faith in excusing blacks from the jury panel, if the appellate court concludes the prosecutor's race-neutral reasons for those peremptory challenges were pretextual because the prosecutor did not excuse non-black prospective jurors with similar characteristics. He is wrong. The United States Supreme Court has not ruled on whether appellate review of peremptory challenges must include a comparative juror In addition, we reject defendant's assertion that the prosecutor impermissibly excused prospective jurors whom the prosecutor believed would not have sympathy for the victim under the facts of this case. In defendant's view, it was improper for the prosecutor to have relied upon this reason because "[i]t has long been the law that jurors are not to allow such feelings as pity or sympathy affect their deliberations and verdict" and jurors are so instructed. The contention has no merit. One of the purposes for peremptory challenges is to permit an attorney to remove from the jury panel those who have individual characteristics which the attorney believes might make them sympathetic to the opposing party.

analysis. Although some federal circuit court decisions have applied such an analysis, it is not universally accepted by all circuit courts that a comparative juror analysis is required on review. We are not persuaded by, and thus need not follow, federal lower court decisions which suggest that appellate courts must undertake a comparative juror analysis. As we shall explain, those decisions fail to recognize numerous practical considerations which make a comparative analysis unworkable on review. Moreover, if the defendant believes the non-discriminatory reasons stated by the prosecutor for excusing a prospective juror are pretextual, it is the defendant's burden in the trial court to bring forth evidence of inconsistencies in the prosecutor's exercise of peremptory challenges as a basis supporting the defendant's claim of pretext. In this case, defendant failed to do so. Not having been alerted to any need for an explanation of why he accepted prospective jurors with characteristics similar to those he excused, the prosecutor was deprived of the opportunity to create a record on this point. Without such an explanation, any attempt at comparative juror analysis is questionable. In any event, the record fails to support a claim that the prosecutor's race-neutral reasons were pretextual. Although jurors who were accepted had characteristics consistent with the reasons stated by the prosecutor for excusing a number of black members of the jury panel, there are additional facts concerning the chosen jurors which distinguish them from [40 Cal.App.4th 1044] those who were excused by the prosecutor. Furthermore, the final jury, which the prosecutor accepted while he still had two peremptory challenges available, included two blacks, which supports a finding that the prosecutor did not act with discriminatory intent in excusing the other black members of the jury panel. Despite defendant's protestations to the contrary, the fact that the prosecutor accepted blacks on the jury is a valid, though not necessarily dispositive, consideration in determining whether the prosecutor violated Wheeler in excusing other blacks from the jury panel.

In the unpublished parts of our opinion, we conclude that the prosecutor did not commit Doyle error, and the court properly imposed the upper term for the section 12022.5 enhancement. Accordingly, we shall affirm the judgment.

FACTS

The murder victim, Robert Johnson, and his friend, Mark Williams, occasionally got into physical altercations. About a week and a half before his death, Johnson punched Williams, knocking him to the ground. The next day, Williams retaliated by striking Johnson in the jaw. After being hit, Johnson said something about getting a gun, and went to his car. He removed a "breaker bar" from the trunk, but another friend interceded and "calmed the situation down." Williams did not take the threat seriously, and the two friends reconciled. The day before he was killed, Johnson visited Williams's home without incident.

On the day of the murder, defendant and Williams were riding in Williams's truck. Williams placed a loaded handgun between the seats of the truck, saying he was afraid Johnson would shoot him or have him shot because Johnson "couldn't whip [Williams's] ass straight up." Williams and defendant eventually stopped at a residence. Williams went inside while defendant remained in the truck.

Soon thereafter, Johnson and another man arrived at the residence and parked in front of the truck occupied by defendant. Johnson, who recently had ingested methamphetamine, told his companion that he wanted to Johnson knocked on the door, and Williams joined him outside. Johnson, who was unarmed, punched Williams in the face and an altercation ensued. Defendant retrieved the handgun, jumped from the truck, and shot and killed Johnson. Defendant then yelled, "Let's go." Williams got into the truck, and they sped away.

"whup [Williams's] ass" because Williams had "sucker punched" him.

Defendant testified that he intended to display the gun to prevent "anything from coming down," and that the gun discharged accidentally when he slipped while exiting the truck.

DISCUSSION

I

Defendant contends the trial court erred in denying his Wheeler motions. In defendant's view, the prosecution failed to rebut a prima facie showing that it exercised peremptory challenges against prospective jurors Rover, Godbold, Chism and Ware only because they are black. ²

Defendant's first Wheeler motion was made after the prosecutor used peremptory challenges to excuse prospective jurors Rover, Godbold and Chism.

The court observed that, of six black prospective jurors, the prosecutor "excused three of the four who had found their way to the box." The prosecutor replied that he challenged Rover and Godbold because they have relatives who are drug addicts. ³ According to the prosecutor, Chism was challenged because (1) he had a number of friends who had "contacts with law enforcement," and he did not give "very detailed statements" about those contacts, ⁴ and (2) he "talk[ed] about shooting a gun on the Fourth of July, which is obviously in violation of local rules and ordinances against shooting handguns." ⁵

As to the latter point, the court interjected, "I don't know. [Chism] didn't say where he was when he did it." The prosecutor replied that he assumed Chism's gun use was illegal, and it was dangerous in any event. The prosecutor further explained that the defense would claim the homicide was accidental and "a juror who's willing to discharge a firearm in the manner in which he's described, would be more apt to believe that particular statement."

Following a discussion among the court and counsel concerning a black prospective juror who remained on the panel, the prosecutor reiterated that he excused Chism because, given his testimony concerning shooting guns on the Fourth of July, he "might buy into the defense's argument." The prosecutor further explained that Godbold was The court denied the Wheeler motion, finding "there are arguable reasons other than race" for which the peremptory challenges were exercised.

excused because his "response about his uncle being a drug addict near Sacramento, he knows him well, I felt is too close where we're at in this particular case," and that Rover was excused due to "the same close ties to a relative who has drug problems."

The defense...