People v. Farmer, 2d Crim. No. B201989 (Cal. App. 2/19/2009)
| Decision Date | 19 February 2009 |
| Docket Number | 2d Crim. No. B201989. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KENNETH ANTHONY FARMER, ANDRE WHITE, AND RODNEY COY STEPHENS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Superior Court of Los Angeles County, No. YA065034-01-02-03, James R. Brandlin, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Kenneth A. Farmer, Defendant and Appellant.
W. William Bartz, Jr., under appointment by the Court of Appeal, for Andre White, Defendant and Appellant.
Irma Castillo, under appointment by the Court of Appeal, for Rodney C. Stephens, Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
Kenneth Anthony Farmer, Andre White, and Rodney Coy Stephens appeal from judgments entered after a jury convicted them first degree residential burglary. (Pen. Code, §§ 459, 460.)1 Farmer was also convicted of felon in possession of a firearm. (§ 12021, subd. (a)(1).) After the trial court declared a mistrial on two attempted burglary counts, it imposed state prison sentences.2 On appeal, appellants contend that the trial court erred in denying their Batson/Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 ; People v. Wheeler (1978) 22 Cal.3d 258) and committed instructional and sentencing errors. We affirm.
On May 23, 2005 at about 1:00 p.m., Allison Hamasu was visiting a friend in Torrance when she saw a late model Chevrolet suburban drive by slowly on 186th Street and turn right on Dorman Avenue. Two African-American men were in the front seat. Hamasu could not see if anyone was in the backseat because the windows were tinted. The suburban circled around, drove by slowly and turned right on Dorman a second time.
Hamasu thought it was suspicious, followed in her car, and saw the suburban park on Dorman near 182nd Street. Wearing a baggy white T-shirt and dark plants, Stephens exited the vehicle and walked up to the house at 18213 Dorman. Stephens returned to the Suburban about 15 seconds later and drove up the street.
Hamasu called the police, described what she was seeing, and gave a description of the car and license plate number. Mary Lum, who lived at the Dorman address, told the police that no one rang the door bell. No cars were parked in Lum's driveway or in front of her house.
Hamasu saw the suburban turn onto 182nd Street, drive slowly up the block, and park on Manhattan Place. Wearing a long sleeve gray flannel shirt and dark pants, White exited the passenger side and walked up to the house at 17903 Manhattan Place. Chiharu Mukaihata heard a knock at her front door. The man said that he was looking for Lori Jones and left.
Hamasu stayed on the phone and told the police that the suburban was in front of another house on Saint Andrews. The Suburban stopped for a minute, proceeded southbound on Saint Andrews, and turned right on 180th Street where it stopped by a dumpster. No one got in or out of the car. Hamasu then saw the car travel westbound on 180th Street, where it turned on to Van Ness and made another turn.
A little after 1:00 p.m., Torrance Police Lieutenant Devin Chase saw the suburban exit a grocery store alley near Sierra. After the lieutenant radioed for assistance, two officers stopped the Suburban. Farmer was driving and White and Stephens were passengers. Hamasu identified Stephens and White as the men who got out of the suburban and approached the houses on Durman and Manhattan.
Officers searched the suburban and found two loaded handguns in the center console. The back seat area had two screwdrivers, a cotton glove and a sock, a piggy bank filled with money, and a jewelry box and jewelry, and a pillowcase, later identified as Timothy Fowler's property. Jewelry and broken glass were on the floorboard. An Avis rental agreement in the glove compartment indicated that Larenee Neviles had recently rented the suburban. A second rental agreement listed appellant Farmer as an additional driver.
Farmer was arrested and searched. He had black gloves in his waistband and $300 in his pocket. White had a pair of brown gloves in his waistband and dropped a large metal file in the patrol car.
Later that day, Timothy Fowler reported that his house at 2500 Sierra had been burglarized. The burglars broke the kitchen window and took a coin piggy bank, his wife's jewelry and jewelry box, an engagement ring, and a pillowcase. Fowler found the kitchen door and the back alley gate unlocked.
Expert testimony was received that screwdrivers, gloves, socks, and pillowcases are often used to commit residential burglaries. Torrance Police Officer Martin McGee testified that burglars often drive through neighborhoods, look for a house with no cars in the driveway, and knock on the door to determine if anyone is home.
Appellants contend that the trial court erroneously denied their Batson/Wheeler motion after the prosecution exercised peremptory challenges to excuse three African-American jurors. " (People v. Box (2000) 23 Cal.4th 1153, 1187.) If a defendant timely objects and makes a prima facie case of purposeful discrimination, "the burden shifts to the prosecutor to provide a permissible race-neutral explanation for the peremptory challenge." (People v. Zambrano (2007) 41 Cal.4th 1082, 1104.) " " (Ibid.)
We review for substantial evidence and " (Ibid.)
Juror 0105, a divorced African-American mother, stated that she was the victim of identity theft three years earlier and that "nothing ever came of it" after she filed a police report. The juror had a niece and two cousins who were murdered and had close relatives that had been arrested for drug use. She also had a nephew who was in jail for breaking and entering with a weapon.
The prosecution excused the juror because the nephew's offense was similar to the charges against appellants,
The trial court found that appellants had not made a prima facie showing of purposeful discrimination and further found that the prosecutor's stated reasons for exercising the peremptory challenge were credible and race neutral. It did not err in denying the Batson/Wheeler motion. "[T[he arrest or conviction of a juror's relative provides a legitimate, group-neutral basis for excluding a juror. [Citation.]" (People v. Turner (2001) 90 Cal.App.4th 413, 419.) Where the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. (People v. Allen (2004) 115 Cal.App.4th 542, 548.) Appellants argue that juror 0105, like appellants, was African-American, but that does not establish purposeful discrimination. (People v. Box, supra, 23 Cal.4th at pp. 1188-1189.)
Juror 1614, an African-American male, had a prior arrest for driving under the influence and a niece who had been arrested for assault. The juror stole a car when he was 15 years old and said that "since then, somebody has stole mine, so I can consider us pretty much even."
The prosecution was concerned about the car theft offense and excused the juror because he was wearing leather gloves on his waistband, similar to the manner White and Farmer were carrying gloves. The prosecutor did not want to ask about the gloves and risk alienating the juror who might think, "I have gloves in my waistband, does that mean I'm guilty of the crime?"
The trial court correctly found that the peremptory challenge was exercised for a nondiscriminatory, race-neutral purpose. (People v. Reynoso (2003) 31 Cal.4th 903, 924.) Here the juror's dress, mannerisms, and prior arrest caused the prosecutor to believe the juror might be sympathetic to the defense. It is settled that a peremptory challenge may be exercised where the juror's responses suggest a pro-defense or pro-prosecution bias. (People v. Wheeler, supra, 22 Cal.3d at p. 275.) "For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle." (Ibid.)
Juror 9203, a 78 year old African-American woman, was inattentive and had hearing problems. When the clerk called the juror's number, juror 9203 did not respond. The clerk summoned the juror by gender and initials, but no one responded. After the trial court issued a warrant, the clerk discovered the juror was seated in court. Defense counsel commented that the juror has "apparently been sleeping the whole time."
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