People v. Roberts

• Citation: 65 Cal.App.5th 469,279 Cal.Rptr.3d 878
• Decision Date: 11 June 2021
• Docket Number: H043738
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth Lenoi ROBERTS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

65 Cal.App.5th 469

279 Cal.Rptr.3d 878

The PEOPLE, Plaintiff and Respondent,

v.Kenneth Lenoi ROBERTS, Defendant and Appellant.

H043738

Court of Appeal, Sixth District, California.

Filed June 11, 2021

Attorneys for Plaintiff/Respondent The People: Xavier Becerra, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Leif M. Dautch, Deputy Attorney General

Attorneys for Defendant/Appellant Kenneth Lenoi Roberts : Anna L. Stuart, Sixth District Appellate Program

Grover, J.

A jury convicted defendant Kenneth Roberts of domestic violence and falsely identifying himself to a police officer. Defendant contends the resulting judgment should be reversed because a missing portion of the reporter's transcript prevents meaningful review of his claim that the prosecutor exercised a race-based peremptory challenge to a prospective juror. He alternatively contends reversal is required because of the admission of hearsay and a response he gave to an officer's question while in custody, and because of misconduct by the prosecutor in closing argument. Defendant also challenges the imposition of fines and fees without a hearing to determine his ability to pay.

Finding no reversible error, we will affirm. We previously ordered defendant's habeas corpus petition (which relates to the jury selection issue) considered with this appeal; we deny that petition by separate order filed this day.

I. BACKGROUND

The Santa Clara County District Attorney accused defendant of beating his girlfriend with a belt. He was charged with inflicting corporal injury on an intimate partner ( Pen. Code, § 273.5 ); assault with force likely to cause great bodily injury ( Pen. Code, § 245, subd. (a)(4) ); and providing a false name to a peace officer ( Pen. Code, § 148.9 ).

The District Attorney was apparently unable to locate the complaining witness to secure her attendance at trial, and the defense moved in limine to exclude certain statements she made on the day of the event. The trial court denied the motion.

During jury selection, a juror disclosed that her sister might work at the county public defender's office. Defense counsel confirmed the juror's sister was a paralegal in his office, and he knew her. In response, the prosecutor exercised a peremptory challenge to that juror, the only African American juror among those being questioned. Defendant objected on the ground that the peremptory challenge was racially motivated. The trial court overruled the objection and excused the juror.

A hotel manager and several police officers were the prosecution witnesses. The hotel manager testified he was in the front office when a guest called to report a woman screaming in room 112. The manager went to that room and knocked on the door. When defendant's girlfriend answered, he asked her to come to the office with him. She looked scared and seemed to be in pain. She showed the manager marks on her back and said defendant had beaten her with a belt. As the manager was calling the police, he saw defendant coming toward the office, holding a belt in his left hand. Defendant looked mad; the manager told him to go back to his room. By the time police arrived, defendant had left the property.

A police officer testified that when he responded to the hotel he found defendant's girlfriend at the office looking "afraid" and "a little bit in shock." According to the officer, she "just had that classic ‘deer in the headlights’ look." She showed him the marks on her back and said she was in pain. She was reluctant to talk about what happened but eventually said her boyfriend had whipped her with a belt three or four times. She also revealed that defendant had been violent with her in the past, around 10 times over the past several years.

Another police officer testified that defendant was not apprehended until several weeks later, during an encounter with police in a parking lot. After being detained, he gave a false name. But another officer arrived and identified defendant as the suspect in the belt assault, and he was arrested for that offense.

There was also testimony about a previous domestic violence incident involving defendant. An officer testified that earlier in the year he had responded to a hotel because an employee called 911 to report a man hitting a woman. When police arrived, defendant fled to a nearby bowling alley. Other officers found him there and detained him at gunpoint. As he was being led out in handcuffs, an officer asked him why he ran. Defendant said it was because he did not want to be accused of hitting his girlfriend.

The jury found defendant guilty of inflicting corporal injury and giving a false name to a police officer. It acquitted him of assault likely to cause great bodily injury. In a bifurcated proceeding, the trial judge found true an enhancement for committing the crimes while released on bail ( Pen. Code, § 12022.1 ). Defendant was granted probation, which included a condition that he serve one year in county jail. The court also imposed the minimum fines and fees prescribed by statute.

II. DISCUSSION

A. PEREMPTORY CHALLENGE TO AN AFRICAN AMERICAN JUROR

Near the end of jury selection, the prosecution exercised a peremptory challenge to an African American juror. Defendant objected, citing the state and federal constitutional prohibition against peremptory challenges based on race. (See Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.) The objection was overruled, and the juror excused.

Because of lost notes, the court reporter could not prepare a transcript of that part of jury selection. When defendant's appellate counsel sought a settled statement ( California Rules of Court, rule 8.137 ), the trial judge was "unavailable for all purposes and therefore unable to participate in the drafting of a settled statement." A different judge presided over the proceedings to settle the record. She indicated that since she was not the trial judge, she "could not meaningfully contribute to the discussions" regarding what occurred during trial. The prosecutor and defense counsel provided their respective recollections of the proceedings, and the trial court certified a settled statement containing those competing recollections without conducting an evidentiary hearing.

According to the settled statement, both sides initially accepted a jury that included Juror No. 10, who is African American. Juror No. 10 then indicated she had forgotten to mention some information during voir dire. Here the settled statement reflects a disagreement about what happened—the defense recalled that the juror said she thought her sister "may" work at the public defender's office; the prosecutor recalled that the juror said her sister did work there. The court's settled statement ultimately reflects that defense counsel confirmed the juror's sister worked in the public defender's office as a paralegal, and he knew her. The parties also disagreed about whether the juror then indicated she could be fair and impartial despite that relationship—the defense recalls she said she could be; the prosecution remembers her saying she could not. Either way, both parties agreed the prosecutor exercised a peremptory challenge and the defense objected on the ground that the challenge was racially motivated. The trial judge overruled that objection and excused the juror.

Defendant contends the settled statement is inadequate to allow meaningful review of his claim of a racially motivated peremptory challenge because the trial court merely noted, without resolving, the conflicts about what occurred. He asserts that to allow for a consistent record on appeal, the court was required to resolve the conflicts between the defense and prosecution accounts. We agree with defendant that preparation of a settled statement requires that any factual conflicts be resolved. (See California Rules of Court, rule 8.137(f) ; People v. Jenkins (1976) 55 Cal.App.3d Supp. 55, 64, 127 Cal.Rptr. 870 ["Where there are conflicts as to what transpired at the trial the court must resolve the dispute as to the facts and see to it that a single unified statement is prepared[.]") However, the failure to do so in this case does not render the record inadequate for our meaningful review.

An appellate record is inadequate only if the omissions are prejudicial to the defendant's ability to prosecute the appeal. ( People v. Young (2005) 34 Cal.4th 1149, 1170, 24 Cal.Rptr.3d 112, 105 P.3d 487.) There is no prejudice here because even when we assume the facts as defense counsel recalled them, defendant is not entitled to reversal.

A defendant who asserts the prosecution exercised a racially motivated peremptory challenge must show prima facie support for an inference of discriminatory purpose. ( People v. Miles (2020) 9 Cal.5th 513, 538, 263 Cal.Rptr.3d 144, 464 P.3d 611.) Once that is done, the prosecution must provide a race neutral justification. The trial court must then decide whether that explanation is genuine, or whether purposeful discrimination has occurred. ( Ibid. ) On appeal, we review whether the trial court correctly accepted the prosecutor's race neutral explanation. ( Id. at p. 539, 263 Cal.Rptr.3d 144, 464 P.3d 611.)

Crediting only defendant's version of what occurred (that is, accepting the recollections of defense counsel as reflected in the settled statement and ignoring those of the prosecutor whenever the two conflict) results in the following scenario: After the jury was accepted by both sides, Juror No. 10 asked to speak with the court, and she disclosed that her sister may work at the public defender's office. Defense counsel confirmed the juror's sister worked as a paralegal in his office and that he knew her. The juror indicated that despite that relationship, she thoug...