People v. Leung

• Decision Date: 09 April 1992
• Docket Number: No. H007885,H007885
• Citation: 7 Cal.Rptr.2d 290,5 Cal.App.4th 482
• Court: California Court of Appeals Court of Appeals
• Parties: , 60 USLW 2715 The PEOPLE, Plaintiff and Respondent, v. Jeffrey LEUNG, et al., Defendants and Appellants.

Page 290

7 Cal.Rptr.2d 290

5 Cal.App.4th 482, 60 USLW 2715

The PEOPLE, Plaintiff and Respondent, v. Jeffrey LEUNG, et al., Defendants and Appellants.

No. H007885.

Court of Appeal, Sixth District, California.

April 9, 1992.

As Modified April 28, 1992.

[5 Cal.App.4th 488] Christopher Blake, appointment by the Court of Appeal, for defendant and appellant Michael Chan.

Peter A. Estern, appointment by the Court of Appeal, for defendant and appellant Jeffrey Leung.

Corinne W. Shulman, appointment by the Court of Appeal, for defendant and appellant David Leung.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Violet M. Lee, Deputy Atty. Gen., for plaintiff and respondent.

CAPACCIOLI, Acting Presiding Justice.

Defendants were convicted of robbery, attempted robbery and false imprisonment. Weapons and arming enhancements were found true. On appeal they argue that (1) the restriction on jury voir dire embodied in Code of Civil Procedure section 223 arbitrarily distinguishes between criminal and civil proceedings in violation of criminal litigants' right to equal protection under the law, (2) a pre-arrest photographic identification procedure was unduly suggestive and it was prejudicial error to admit evidence of this photographic identification at trial, (3) there were sentencing errors, (4) there were clerical errors and (5) defendant

Chan asserts that the court should have issued a judicial recommendation against deportation. For the reasons expressed below, we affirm the judgments and order modification of the abstracts of judgment to correct clerical errors.

FACTS

On December 30, 1989 at 1:30 a.m. a man carrying an iron pipe entered the upstairs of the Miyake Restaurant. This man was defendant Jeffrey Leung. Jeffrey approached Akira Nakamura and Kikuo Tsujimoto (hereinafter Kikuo) and told them to hand over all the money. He forced them to go into the interior of the restaurant office. A man with a pistol then came upstairs from the first floor of the restaurant. This man was David Leung. Each man wore a mask over the lower part of his face. David pointed the gun at Mr. Nakamura. Mr. Nakamura took money out of his wallet and gave it to Jeffrey. Restaurant receipts of approximately $2,000 in cash were lying on a table in a brown paper bag. Jeffrey took this money. One of the men took a bag from Kikuo.

A third man wearing a mask and carrying a knife came up from downstairs. Jeffrey handed Mr. Nakamura some handcuffs and had him handcuff one of his hands and one of Kikuo's hands to a chair. Jeffrey then pulled the phone cord out of the wall. The three men went downstairs.

Moriyaki Nagayama was in the kitchen with Hiroshi Tsujimoto (hereinafter Hiroshi) preparing food for the next day at the time of the robbery. A man with a gun came into the kitchen. This man was David Leung. David told Hiroshi and Mr. Nagayama to raise their hands. A man without any weapon also came into the kitchen. He was wearing a handkerchief over the lower portion of his face. This man was Michael Chan. David pointed the gun at Hiroshi and Mr. Nagayama. David and Chan then forced the two men to proceed to the basement. A third man joined them on their way to the basement. David kicked Mr. Nagayama as he went down the steps to the basement. Once they reached the basement, David and the third man went back upstairs. Chan remained and told Mr. Nagayama to give him money. Mr. Nagayama gave Chan $100 from his pocket. Chan then turned to Hiroshi and asked Hiroshi to give him money. Hiroshi produced his wallet but there was no money in it. Chan told Mr. Nagayama and Hiroshi not to move and to "stay there" and then he went upstairs. A man with a pipe stood guard at the top of the stairs. Mr. Nagayama and Hiroshi later saw four men leave the restaurant.

Ten days after the robbery, Mr. Nagayama, Mr. Nakamura and Hiroshi and Kikuo identified defendants at a photographic identification. ¹ Defendants were charged by information with three counts of robbery (Pen.Code, §§ 211/212.5(b)), one count of attempted robbery (Pen.Code, §§ 664/211/212.5(b)) and four counts of false imprisonment (Pen.Code, §§ 236/237). It was further alleged that David Leung had personally used a gun (Pen.Code, § 12022.5(a)), Jeffrey Leung had personally used a pipe (Pen.Code, § 12022(b)) and all three defendants had been armed with a firearm within the meaning of Penal Code section 12022(a)(1). Pursuant to Penal Code sections 667 and 667.5(b), Jeffrey Leung was charged with prior felony convictions and prior prison terms.

Defendants moved in limine to suppress evidence of the pre-arrest photographic identification as the product of an unduly suggestive identification procedure. After a lengthy evidentiary hearing, the court determined that the identification procedure was not suggestive and therefore denied the motion.

Defendants were convicted on all counts and the enhancements were found true. Jeffrey Leung admitted the allegations of prior convictions and prior prison terms. Michael Chan was sentenced to six years, eight months in state prison. Jeffrey Leung was sentenced to sixteen years, eight months in state prison. David Leung was sentenced to nine years, eight months in state prison.

DISCUSSION

A. CHALLENGE TO CODE OF CIVIL PROCEDURE SECTION 223

Defendants assert that Code of Civil Procedure section 223 unconstitutionally prohibits criminal litigants, but not civil litigants, from conducting voir dire in support of peremptory challenges. Thus, defendants claim that the application of that statute below prejudiced them and requires reversal of their convictions. ² Code of Civil Procedure section 223, as enacted by the voters in Proposition 115, provides as follows: "In a criminal case, the court shall conduct the examination of prospective jurors. However, the court may permit the parties, upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the prospective jurors upon such a showing, such additional questions by the parties as it deems proper. Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases. [p] Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. [p] The trial court's exercise of its discretion in the manner in which voir dire is conducted shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution." (Code Civ.Proc., § 223, emphasis added.)

1. NATURE OF THE "RIGHT"

a. The Peremptory Challenge

"[T]he peremptory challenge is not a constitutional necessity but a statutory privilege." (People v. Wheeler (1978) 22 Cal.3d 258, 281 fn. 28, 148 Cal.Rptr. 890, 583 P.2d 748.) " '[N]either the United States Constitution nor the Constitution of California ... requires that Congress or the California Legislature grant peremptory challenges to the accused [or prosecutor] or prescribes any particular method of securing to an accused [or prosecutor] the right to exercise the peremptory challenges granted by the appropriate legislative body. [Citations.] The matter of peremptory challenges rests with the Legislature, limited only by the necessity of having an impartial jury.' " (Ibid quoting People v. King (1966) 240 Cal.App.2d 389, 399-400, 49 Cal.Rptr. 562 (emphasis added); accord,

People v. Ainsworth (1988) 45 Cal.3d 984, 1005, 248 Cal.Rptr. 568, 755 P.2d 1017.)

b. Restriction on Voir Dire

Until 1981, the California Supreme Court had long held that the trial court could prohibit voir dire examination which was engaged in solely for the purpose of gaining information relevant to the exercise of peremptory challenges. (People v. Edwards (1912) 163 Cal. 752, 127 P. 58.) In Edwards, the trial court had refused to permit defense counsel to examine a juror for the purpose of determining whether or not to exercise a peremptory challenge to that juror. (People v. Edwards, supra, 163 Cal. at p. 753, 127 P. 58.) Finding no statutory authorization for allowing "the examination of a juror for the purpose of enabling the parties intelligently to determine whether or not to make a peremptory challenge," the California Supreme Court approved the trial court's limitation on voir dire. (Id. at p. 754, 127 P. 58.) "It [voir dire solely in support of peremptory challenges] tends to encourage inquiries into matters wholly collateral to the case at hand. The field of inquiry upon subjects properly involved in the endeavor to ascertain whether the juror is free from actual or implied bias is so broad that it will give each party ample opportunity to obtain information concerning the advisability of making peremptory challenges to the respective jurors." (Id. at p. 755, 127 P. 58.) The court therefore held that a defendant " 'cannot embark in a general exploration for the sole purpose of satisfying himself whether it will be safe to be tried by a juror against whom no legal objections can be urged.' " (Id. at pp. 755-756, 127 P. 58 quoting, People v. Hamilton (1882) 62 Cal. 382.)

In 1981 the California Supreme Court abandoned the rule expressed in Edwards and held that "counsel should be allowed to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds sufficient to sustain a challenge for cause." (People v. Williams (1981) 29 Cal.3d 392, 407, 174 Cal.Rptr. 317, 628 P.2d 869.) In Williams, the central issue at trial had been self-defense. Defendant asserted that he had been entitled to use force to defend himself, his grandson and his home against the victim. The victim had come to defendant's...