People v. Landry

• Decision Date: 24 September 1996
• Docket Number: No. A072853,A072853
• Citation: 49 Cal.App.4th 785,56 Cal.Rptr.2d 824
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7165, 96 Daily Journal D.A.R. 11,723 The PEOPLE, Plaintiff/Respondent, v. Ernest LANDRY, Jr., Defendant/Appellant.

Page 824

56 Cal.Rptr.2d 824

49 Cal.App.4th 785, 96 Cal. Daily Op. Serv. 7165,

96 Daily Journal D.A.R. 11,723

The PEOPLE, Plaintiff/Respondent, v. Ernest LANDRY, Jr., Defendant/Appellant.

No. A072853.

Court of Appeal, First District, Division 5, California.

Sept. 24, 1996.

Certified for Partial Publication. ^*

Review Denied Jan. 15, 1997.

E. Evans Young, Oakland, under appointment by the Court of Appeal, for Defendant/Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Richard Rochman, David D. Salmon, Deputy Attorneys General, San Francisco, for Plaintiff/Respondent.

PETERSON, Presiding Justice.

Following a jury trial, appellant was found guilty of possession of heroin for sale (Health & Saf. Code, § 11351) and escape (PEN. CODE, § 4532¹, subd. (b)). Four prior felony convictions were found true, all of which were found to be three strikes priors pursuant to section 667, subdivision (d)(1). Appellant was sentenced to 50 years to life. Appellant contends: (1) that this court erred in failing to grant his request to augment the record with the transcript of the entire jury voir dire under California Rules of Court, rule 12 (state rule 12); (2) that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of simple possession of heroin; and (3) that he was improperly sentenced under the three strikes law. We agree with the People that the matter must be remanded for resentencing. In all other respects, we affirm.

I. DENIAL OF MOTION TO AUGMENT THE APPELLATE RECORD

Appellant claims that this court denied him effective appellate review of the trial court's ruling on his motion under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler ) when it failed to provide him a free verbatim transcript of the entire jury voir dire. The facts underlying this contention are undisputed. The record in this appeal was filed on March 12, 1996. In a motion to augment filed on March 18, 1996, appellant requested the reporter's transcript of the voir dire of all prospective jurors.

In support of the request, appellant noted that trial counsel had made a motion pursuant to Wheeler, based on the prosecutor's use of peremptory challenges against three Black prospective jurors. The appellate record furnished to appellant's counsel contained the voir dire of the three challenged jurors and the argument and ruling on appellant's Wheeler motion. The trial court had found that a prima facie case had been established, but denied the motion after finding that the prosecutor's explanations were race-neutral. Based on the explanations offered by the prosecutor in defense of his challenge, appellant requested the entire voir dire in order to evaluate the propriety of the trial court's denial of the Wheeler motion.

In its initial order dated March 29, 1996, denying appellant's application, this court cited Court of Appeal, First Appellate District Rules, rule 6(d) [Deering's Cal. Civil Practice Codes (1996 desk top ed.) p. 2377] (local rule 6(d)). ² The order stated that it was denied "without prejudice to renewal." (Haning, J.) Appellant filed a request for reconsideration of his application. In support of the request, appellant pointed out that the prosecutor had cited a Black prospective juror's affiliation with an educational institution as one reason for exercising a peremptory challenge against her. Appellate counsel submitted a declaration stating that appellant's trial counsel recalled at least one other non-Black prospective juror who was affiliated with education, but who was not challenged by the prosecution. This declaration was hearsay, subject to a challenge for presenting a second-hand statement of fact, and by no means constituted a conclusive statement of the truth of the matter. On May 6, 1996, this court issued an order denying appellant's request for reconsideration. (Peterson, P.J.)

As noted, the appellate record furnished to appellant contains the voir dire of the three challenged jurors and the argument and ruling on appellant's Wheeler motion. We have reviewed the record. The prosecutor in this case used three of his peremptory challenges to excuse Blacks from the jury. After the third challenge, appellant made a Wheeler motion, claiming the prosecutor's reasons for excusing these jurors were disingenuous. The prosecutor was then required to offer race-neutral explanations for exercising his peremptory challenges.

According to the prosecutor, he struck one of the Black jurors, Belcher, for the following reasons: Belcher had sought a hardship excuse from the jury because he had a business trip planned. While the hardship excuse was denied, the prosecutor believed Belcher would prefer to go on the business trip rather than serve on the jury. The prosecutor explained, "Since we have so many challenges and so many potential jurors, I'd rather get twelve people that have absolutely no other obligations to keep them from jury service."

The second Black juror, Everhart, was a teacher, a factor that the prosecutor counted against her. He explained, "I've had plenty of trouble with teachers I've left on juries. I think they are more apt to get sidetracked. They are more apt to go down roads that [are] pointed out to them by [the] defense." Also, Everhart was corresponding with a relative serving a prison sentence for murder, which the prosecutor believed "showed a certain sympathy to a person that has been convicted of a very serious crime." The prosecutor expressed his concern that Everhart's "sympathy might fall over to the defendant in this case." Also, Everhart was on the board of a drug treatment program which the prosecutor thought showed "sympathy for people going through that type of problem" which might "spill over" to appellant.

It suffices to say that the record supports the trial court's conclusion that these two Black jurors, Belcher and Everhart, were excused because of individual, race-neutral factors. In fact, in ruling on appellant' Wheeler motion, the trial court noted, "If all we had were jurors Everhart and Belcher, I wouldn't even require an explanation." Appellant does not contend otherwise.

Because the prosecutor's explanation with respect to the other Black juror, Thomas, serves as the springboard for appellant's request for augmentation, we set it out in some detail. The prosecutor's overall impression of Thomas was that she "represented a type of person that might make decisions not based on facts and the simple application of facts to the law, but might make decisions based on pity or sympathy or prejudice in favor of Mr. Landry or in favor of the defendant or against the prosecution." The prosecutor supported this overall impression with three objective factors: (1) Her educational background was in psychiatry or psychology, which the prosecutor perceived as a negative because he "had very bad experiences with jurors who have had any sort of relationship, however tangentially, to that area of study or thought." (2) She worked at Stanford in a youth services agency, and the prosecutor reiterated that he did "not have very good luck with people who are tied to education in any way.... They are more likely to take or go down strange paths that might be pointed out to them by the defense." (3) She was in youth services, which the prosecutor believed indicated "a certain sympathy or do gooderness that might not make her a fair and impartial juror for the prosecution."

On appeal appellant contends that the denial of his motion for augmentation violated his constitutional right to due process and equal protection and infringed upon his right to the effective assistance of counsel on appeal. It is clear from appellant's arguments in support of this issue that appellant seeks the entire transcript of voir dire to exploit the prosecutor's challenge to juror Thomas based on her ties to education by engaging in a comparison with any nonminority juror who also had ties to education but who was not challenged by the prosecutor. First, we note that in making the Wheeler motion below, no claim was made that the prosecutor was using his challenges inconsistently depending on the race of the juror, depriving the prosecutor of the opportunity to create a record on this point. As pointed out in People v. Dunn (1995) 40 Cal.App.4th 1039, 1051, 47 Cal.Rptr.2d 638 (Dunn ), "Without such an explanation, any attempt at comparative juror analysis is questionable."

Secondly, the comparison appellant seeks to make is one-sided since it ignores several other characteristics, beside an educational background, cited by the prosecutor in exercising his peremptory challenge against Thomas. The prosecutor also pointed out that Thomas had a background in psychiatry or psychology and that he had "very bad experiences" with such jurors. He also cited the fact that Thomas worked with youth services, which made him concerned that she might be biased in appellant's favor. Courts have recognized the race neutrality of similar explanations. (See, e.g., People v. Barber (1988) 200 Cal.App.3d 378, 394, 245 Cal.Rptr. 895 [A juror was challenged because of profession based on the prosecutor's belief that kindergarten teachers are often liberal and not prosecution oriented.]; People v. Granillo (1987) 197 Cal.App.3d 110, 120, 242 Cal.Rptr. 639, fn. 2 ["Many prosecutors believe various professional people are unacceptable because they may be too demanding or they look for certainty."]; U.S. v. Thompson (9th Cir.1987) 827 F.2d 1254, 1260 [Excluding jurors because of their profession is wholly within the prosecutor's prerogative.].) Because the record before us demonstrates that the trial court found at least one legitimate race-neutral explanation for each questioned peremptory challenge, no abuse of discretion can possibly be shown. (People v. Pride (1992) 3...