People v. Rojas

• Decision Date: 14 December 1992
• Docket Number: No. B056299,B056299
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Anthony ROJAS, Defendant and Appellant.

Page 318

14 Cal.Rptr.2d 318

11 Cal.App.4th 950

The PEOPLE, Plaintiff and Respondent, v. Michael Anthony ROJAS, Defendant and Appellant.

No. B056299.

Court of Appeal, Second District, Division 7, California.

Dec. 14, 1992.

Review Denied March 17, 1993.

[11 Cal.App.4th 953] James R. Bostwick, Jr., Claremont, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Pamela C. Hamanaka and Kenneth C. Byrne, Deputy Attys. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Charged with special circumstance murder (PEN.CODE, §§ 187¹, 190.2, subd. (a)(15) [lying in wait], 190.2, subd. (a)(17) [robbery], 190.2, subd. (a)(17) [burglary]; count I), robbery ( § 211, 12022, subd. (a); count II), and burglary ( §§ 459, 12022, subd. (a); count III) a jury found appellant guilty of first degree robbery (count II), first degree burglary (count III) and accessory after the fact ( § 32), a lesser related offense to murder (count I). The jury found the robbery firearm allegation ( § 12022, subd. (a)) true but the burglary firearm allegation ( § 12022, subd. (a)) not true. Appellant was sentenced to state prison for seven years.

Appellant contends Wheeler error (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) and the erroneous admission of hearsay evidence require reversal. He also claims sentencing error. Except for failure to stay a concurrent burglary sentence, we find no error and, as modified, affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply.

A friend of appellant's, Evan Nakahara ² (Evan), had an intermittent personal relationship with Beatrice Viveiros (Bea), a 20-year-old woman who lived with her father in San Pedro. Mr. Viveiros had an extensive gun collection which he kept in a house safe. Bea knew the combination.

In early July 1989 Evan told another friend, Edwin Skinner, that Bea's father had a nice gun collection, he was going to steal those guns, "our old buddy Mike" (appellant) was going with him, and he, Evan, was going to kill Bea.

On July 10, 1989, in a telephone conversation, Evan told appellant he was going to steal Mr. Viveiros' guns and asked him to help. Appellant asked if Bea would be present and Evan said yes. When appellant asked how the guns could be stolen with her present, Evan said "Dead men tell no tales." Evan said he was going to shoot her. Appellant testified he told Evan, "You're crazy" and hung up.

The next day, July 11, 1989, Evan borrowed appellant's duffle bag and the two of them drove in Evan's car to Bea's house. When they arrived around 1 p.m. they found Bea at home with her friend Kim. After talking for awhile, Evan asked Bea to help him empty his car trunk. While they were doing so, Evan asked Kim when she would leave for work. She said around 2:45 p.m. Evan then asked Bea when her father would return home from work. She said between 4 and 4:30.

Kim left and the others went inside. Soon Evan "pestered" Bea into opening the safe so he could "play with" the guns. Appellant remained in the living room when Evan and Bea went to the rear of the house. Appellant heard a stereo come on loud and not long after, four shots. Evan appeared and told appellant to help him with the guns. Appellant saw Bea lying face down in the hallway.

Appellant and Evan loaded Mr. Viveiros's guns in two duffle bags, carried them to Evan's car, and put them into the trunk. They drove to Evan's apartment and brought the guns inside. Appellant, at Evan's invitation, took two of the guns. Evan then drove appellant to work.

Mr. Viveiros returned home about 4:20 p.m. and found his daughter dead and his guns missing. He called the police.

Some hours later, about 1:30 a.m. on July 12, 1989, the police arrested Evan at his home, recovered Mr. Viveiros's guns, found the murder weapon, and discovered a duffle bag with appellant's name.

From jail, Evan telephoned appellant and told him he had been arrested.

That afternoon, July 12, 1989, appellant called the police and surrendered.

At trial, appellant testified he hadn't believed Evan would steal the guns or shoot Bea--until he heard the shots.

DISCUSSION

1. Appellant contends there was Wheeler error.

Appellant contends the prosecutor and the trial court committed Wheeler (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) error.

As the California Supreme Court has recently stated: "The principles first articulated in that case are now well settled. [Citations.] A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.... Under Wheeler, of course, which is based on the right to trial by a representative jury, a defendant need not be a member of the group to challenge its exclusion. [Citation.]

"If a party believes an opponent is improperly using peremptory challenges for a discriminatory purpose, that party must make a timely objection and a prima facie showing that the jurors are being excluded on the basis of group bias. [Citation.] To establish a prima facie case, the moving party should first make as complete a record as possible; second, the moving party must establish that the persons excluded are members of a cognizable group; and third, the moving party must show a strong likelihood that the persons are being excluded because of group association. [Citations.] Once the moving party has established a prima facie case, the burden shifts to the other party to come forward with a race-neutral explanation related to the particular case to be tried. [Citations.]

"This court and the high court have professed confidence in trial judges' ability to determine the sufficiency of the prosecutor's explanations. In Wheeler, we said that we will 'rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' [Citation.] Similarly, the high court stated in Batson v. Kentucky, supra [476 U.S. 79 "In People v. Johnson, supra [47 Cal.3d 1194, 255 Cal.Rptr. 569, 767 P.2d 1047 (1989) ] we reemphasized the need for 'a standard of truly giving great deference to the trial court in distinguishing bona fide reasons from sham excuses.' (47 Cal.3d at p. 1221 [255 Cal.Rptr. 569, 767 P.2d 1047.] ) We disapproved the approach taken earlier in People v. Trevino (1985) 39 Cal.3d 667 [217 Cal.Rptr. 652, 704 P.2d 719] in which we had disallowed subjective reasons for peremptory challenges and had engaged in a comparative analysis of various jurors' responses to evaluate the bona fides of the prosecutor's stated reasons. We disapproved the Trevino approach because nothing in Wheeler disallows reliance on the prospective jurors' body language or manner of answering questions as a basis for rebutting a prima facie case, and because comparative analysis of jurors unrealistically ignores 'the variety of factors and considerations that go into a lawyer's decision to select certain jurors while challenging others that appear to be similar.' (47 Cal.3d at pp. 1219, 1220 [255 Cal.Rptr. 569, 767 P.2d 1047] ).

106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ] that 'the trial judge's findings in the context under consideration here largely will turn on evaluation of [11 Cal.App.4th 956] credibility,' and for that reason 'a reviewing court ordinarily should give those findings great deference.' (476 U.S. at p. 98, fn. 21 [106 S.Ct. at p. 1724, fn. 21].)

"We reaffirmed in People v. Johnson, supra, 47 Cal.3d 1194, 255 Cal.Rptr. 569, 767 P.2d 1047, however, that the trial court must make ' "a sincere and reasoned" ' attempt to evaluate the prosecutor's justifications. (Id. at p. 1216, 255 Cal.Rptr. 569, 767 P.2d 1047, citing People v. Hall, supra, 35 Cal.3d 161, 167-168 [197 Cal.Rptr. 71, 672 P.2d 854] ). Furthermore, every questioned peremptory challenge must be justified: 'If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted' and the court must dismiss the venire and begin jury selection anew. (Wheeler, supra, 22 Cal.3d at p. 282 [148 Cal.Rptr. 890, 583 P.2d 748] )." (People v. Fuentes (1991) 54 Cal.3d 707, 713-715, 286 Cal.Rptr. 792, 818 P.2d 75.)

Defense counsel first raised possible Wheeler error after the prosecutor had peremptorily excused three Black women prospective jurors. But when the trial court asked defense counsel if he was requesting the court to make a preliminary finding (People v. Wheeler, supra, 22 Cal.3d 258, 281, 148 Cal.Rptr. 890, 583 P.2d 748), defense counsel responded: "I think that is something we should be aware of. I guess I would be asking for a preliminary finding, your Honor. It may be premature at this time, but three out of five is--"

During the ensuing colloquy the trial court made clear that a prima facie case of group bias had not been shown. When the prosecutor offered to state his reasons for each challenge the trial court responded, "I don't think you need to do so. I thought, when those people were giving their answers, that they wouldn't make it." ³

Defense counsel did not press his objection and, on appeal, appellant does not contend excusing these three prospective jurors constitutes Wheeler error.

Thereafter, in exercising the remainder of his 20 peremptory challenges, the prosecutor excused two other Black women. ⁴ Defense counsel again made a Wheeler objection.

This time, the trial court impliedly found a prima facie case of group bias had been established. It required the prosecutor to state his reasons for excusing not...