People v. Walker

• Citation: 75 Cal.Rptr.2d 871,64 Cal.App.4th 1062
• Decision Date: 22 May 1998
• Docket Number: Nos. E018940,E019366,E019158,s. E018940
• Court: California Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 4581, 98 Daily Journal D.A.R. 6249 The PEOPLE, Plaintiff and Respondent, v. Charles Edward WALKER, Defendant and Appellant; The PEOPLE, Plaintiff and Respondent, v. Jennifer ERWIN, Defendant and Appellant; The PEOPLE, Plaintiff and Respondent, v. Clarence D. CLEMONS, Defendant and Appellant. E018940, E019158, E019366.

Page 871

75 Cal.Rptr.2d 871

64 Cal.App.4th 1062, 98 Cal. Daily Op. Serv. 4581,

98 Daily Journal D.A.R. 6249

The PEOPLE, Plaintiff and Respondent, v. Charles Edward WALKER, Defendant and Appellant;

The PEOPLE, Plaintiff and Respondent, v. Jennifer ERWIN, Defendant and Appellant;

The PEOPLE, Plaintiff and Respondent, v. Clarence D. CLEMONS, Defendant and Appellant.

Nos. E018940, E019158, E019366.

E018940, E019158, E019366.

Court of Appeal, Fourth District, Division 2, California.

May 22, 1998.

Certified for Partial Publication. ^*

Review Denied Aug. 26, 1998.

Michael Linfield, Pasadena, Michael Sideman, San Diego, and Linn Davis, under appointments by the Court of Appeal, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Esteban Hernandez, Supervising Deputy Attorney General, and Barry J.T. Carlton, Deputy Attorney General, for Plaintiff and Respondent.

RAMIREZ, Presiding Justice.

A jury convicted Clarence D. Clemons, Jennifer Erwin and Charles Edward Walker of perjury (Pen.Code, § 118) and the former two of being accessories after the fact to homicide (Pen.Code, § 32). In bifurcated proceedings, the trial court found that Clemons had suffered a prior conviction, for which he served a prison sentence (Pen.Code, § 667.5, subd. (b)) and Walker had suffered a strike prior (Pen.Code, § 667, subds. (c), (e)). Clemons and Walker were sentenced to prison for four years and six years respectively and Erwin received probation. All three appeal, making various claims, all of which we reject. We therefore affirm the judgments of all three, except that we direct the trial court to correct an error in Clemons's abstract of judgment.

FACTS

On March 13, 1993, Stacy Murrell attended a party. She left the party during the early morning hours of March 14 with Erwin, Clemons and Walter Evans, Jr., in Clemons's Cadillac. They drove to a convenience store parking lot where a Jeep containing the victims and their companion was parked. After predicting that he could knock out one of the occupants of the Jeep with one punch, Clemons approached the vehicle and began fighting with the first victim who had gotten out of the vehicle. The first victim appeared to be getting the better of Clemons and Walter Evans, Jr., got out of the Cadillac, approached the combatants and fired a number of shots, killing the first victim and the second, who was sitting in the back seat of the Jeep.

After law enforcement officers received contradictory statements and information from various sources during their investigation of the murders, the grand jury subpoenaed, inter alia, Clemons, Erwin and Walker to testify before it. Clemons falsely testified before the grand jury that he was not at the convenience store at the time of the murders and he arrived at his ex-wife's home in Cabazon during the early morning dark hours of March 14, 1993. Erwin falsely testified before the grand jury that she was not at the convenience store at the time of the murders and she never left the party until she left to go home. Walker falsely testified before the grand jury that the lead detective in the case had him read a false statement about the murders, implicating Walter Evans, Jr., and he did not know and had never seen Clemons before in his life.

ISSUES AND DISCUSSION

1.-2. ^**

3. Wheeler ⁶ Motion

During voir dire, after the defense had accepted the jury as constituted, the prosecutor exercised a peremptory challenge to remove one of the two Black jurors on the panel. Walker's attorney moved, with Erwin's joining, for a mistrial under People v. Wheeler, as follows: "[The excused Black potential juror] is ... one of two black people on this entire jury panel that I can see. ⁷ ... [T]he three defendants are all ... black. [The prosecutor] gives a long speech about you have your life experiences and all that sort of stuff, then he throws off the very person that would be beneficial to the defendants as to life experiences." The prosecutor commented that the defense had failed to show a "systematic ... [or] ... repetitive" exclusion of Blacks. After the trial court invited further comment from defense counsel, Walker's attorney stated, "Inasmuch as there are only two blacks on this entire panel--we've gone through 100 people--I would think that the exclusion of one at this point does become a systematic election by [the prosecutor]." The trial court denied the motion, commenting, "... [T]he defense has not met their [sic ] burden with regard to the intent of Wheeler. [p] ... [p] ... [T]he mere fact that there were only two [B]lacks [in the pool of potential jurors examined] does not create a basis for prohibiting any party, be it the defense or the prosecution, from excluding a particular juror. [p] ... [A]lthough the Court appreciates the argument of [Walker's attorney] that [the juror excused by the prosecutor's peremptory removes] ..., in effect, 50 percent of the [B]lack pool that is available ..., the Court is not going to find that as being a valid legal basis for implementing Wheeler at this particular point in time.[ ⁸] [p] Obviously, if the situation continues--and depending on the arguments of counsel--the Court may reconsider the situation if it digresses any further than where we happen to be at this particular point."

Clemons's attorney interjected that it was tokenism if the prosecutor felt that by leaving one Black on the jury, he did not have to explain his reasons for using the peremptory against the excused juror. Later, Clemons's attorney said, "... I think that there is a prima facie case of systematic exclusion. I think that just because of the mere fact that [the remaining Black potential juror] remains on the panel as an African-American does not rebut the fact that he has peremptory challenges left and he has excluded an African-American juror who, it would appear, would not ... meet any criteria for prosecution exclusion other than the color of ... her skin vis-a-vis the color of the skin of our clients. [p] The fact that he withdrew an objection to somebody else really shouldn't have any bearing. It seems to me it's kind of a tokenism argument that as long as one black face remains on the jury panel, he's allowed to exclude other African-Americans without giving any substantial reasons for it. [p] I think in this case, and in general, the African-Americans are under-represented in our venires.... [p] ... And I think that ... when the first black juror who looks like she may remain after all counsel for the defense have passed is excluded, it clearly, in this context, makes out a case of systematic exclusion because of race. [p] And I think that [the prosecutor] should be made to put on the record his reasons, if any, for exercising that peremptory challenge." Walker's attorney joined in these comments, adding, "[O]ne [Black] juror on a panel of 60 ... [is] something less than .01 percent of black jurors." The trial court responded that its previous ruling stood.

The foregoing contains all of the statements made by defense counsel in support of their Wheeler motion.

"... [T]he use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions.... Under Wheeler and Batson [v. Kentucky (1986) 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69], ' "if a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court.... [F]rom all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association." ' [Citations.] [p] ... [p] There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner." (People v. Turner (1994) 8 Cal.4th 137, 164-165, 32 Cal.Rptr.2d 762, 878 P.2d 521, italics original.) "Only [if the defendant shows a strong likelihood that jurors were challenged because of their group association] does the burden shift to the prosecution 'to explain adequately the racial exclusion.' [Citations omitted.]" (People v. Williams (1997) 16 Cal.4th 635, 664, 66 Cal.Rptr.2d 573, 941 P.2d 752.) "Because Wheeler motions call upon trial judges' personal observations, we view their rulings with 'considerable deference' on appeal." (People v. Howard (1992) 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) "[T]he trial judge, who had observed the voir dire, [is] in the best position to determine under 'all the relevant circumstances' of the case whether there was a ' "strong likelihood" ' these prospective jurors were being challenged 'because of their group association.' " (People v. Davenport (1995) 11 Cal.4th 1171, 1201, 47 Cal.Rptr.2d 800, 906 P.2d 1068.) These circumstances are often subtle, visual, and therefore incapable of being transcribed, subjective, and even trivial. (People v. Jackson (1996) 13 Cal.4th 1164, 1197, 56 Cal.Rptr.2d 49, 920 P.2d 1254; People v. Montiel (1993) 5 Cal.4th 877, 910, fn. 9, 21 Cal.Rptr.2d 705, 855 P.2d 1277; People v. Johnson (1989) 47 Cal.3d 1194, 1215-1216, 255 Cal.Rptr. 569, 767 P.2d 1047.)

Walker and Erwin here contend that the trial court erred in concluding that they had not made a prima facie showing. They contend that the prosecutor asked the excused juror mostly perfunctory questions. ⁹ We disagree. However, we will assume, for purposes of this argument, that the defendants are correct. In support of their contention that this is sufficient to demonstrate that the trial court erred, they cite People v. Wheeler, supra, 22 Cal.3d at pp. 280-281, 148 Cal.Rptr. 890, 583 P.2d 748. However, there, Wheeler states, "We shall not attempt a compendium of all the ways...