People v. Wimberly

Decision Date20 April 1992
Docket NumberNo. A048136,A048136
Citation5 Cal.App.4th 773,7 Cal.Rptr.2d 152
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Anthony Rene WIMBERLY, Defendant and Appellant.

Daniel E. Lungren, Atty. Gen., George Williamson and John H. Sugiyama, Asst. Attys. Gen., Joanne Abelson and Allan Yannow, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHIN, Associate Justice.

Anthony Rene Wimberly appeals from his convictions on one count of rape (Pen.Code, § 261, former subd. (2) [now subd. (a)(2) ] 1), two counts of attempted murder (§§ 664/187), three counts of residential burglary (§ 459), one count of nonresidential burglary (§ 459), five counts of robbery (§ 211, former § 213.5), and four counts of being an ex-felon in possession of a handgun (§ 12021), with enhancements for firearm use, infliction of great bodily injury, service of prior prison terms, and a prior robbery conviction. He raises a variety of challenges to his convictions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

By information, the Alameda County District Attorney charged appellant with three counts of special circumstance murder, two counts of attempted murder, three counts of residential burglary, one count of nonresidential burglary, five counts of robbery Appellant's trial began in February 1989. During jury selection, the trial court overruled appellant's objection that the prosecution was impermissibly excluding prospective jurors on the basis of race. Over defense objection, the evidence at trial included appellant's statements to the police after his arrest and the testimony of two of the victims who had identified appellant before trial from photographs and a lineup. Appellant's defense consisted primarily of expert testimony from Dr. David Stein, a psychologist, who testified that appellant's attachment to his mother affected the reliability of his statements to the police. The jury found appellant guilty on all counts except one of the rape counts and found true the various enhancements. It did not reach a verdict on the penalty phase of the trial. Accordingly, the trial court imposed a sentence of 40 years and judgment on the noncapital charges. Appellant then filed this timely appeal from the judgment on the noncapital convictions.

two counts of rape, and four counts of being an ex-felon in possession of a gun. The information also alleged enhancements for use of a firearm, great bodily injury, service of prior prison terms, and a prior robbery conviction. The charges arose from four separate incidents involving five victims between November 8, 1984, and January 31, 1985. 2

DISCUSSION
Jury Selection

Appellant contends that the trial court erred in failing to find a prima facie showing that the prosecution impermissibly used peremptory challenges to remove prospective jurors simply because they were the same race (Black) as appellant. We disagree.

To establish a prima facie case under People v. Wheeler (1978) 22 Cal.3d 258, 280, 148 Cal.Rptr. 890, 583 P.2d 748, a defendant alleging improper exclusion should make as complete a record of the circumstances as is feasible and must establish (1) that the excluded persons are members of a cognizable group, and (2) "a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias." (Ibid.) The focus of the prima facie inquiry "is on the objecting party's contentions and the record. The burden is upon the objecting party; justifications by the other side are not yet appropriate." (People v. Granillo (1987) 197 Cal.App.3d 110, 122, 242 Cal.Rptr. 639.)

The determination of whether a defendant has established a prima facie case "is largely within the province of the trial court whose decision is subject only to limited review. [Citations.]" (People v. Allen (1989) 212 Cal.App.3d 306, 313, 260 Cal.Rptr. 463.) On appeal, we examine the entire record of voir dire for evidence to support the trial court's ruling. (People v. Howard (1992) 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315, rehg. petn. pending.) Because of the trial judge's knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we must give "considerable deference" to the determination that appellant failed to establish a prima facie case of improper exclusion. (People v. Sanders (1990) 51 Cal.3d 471, 501.)

In this case, after establishing that the prosecution had used two peremptory challenges to strike Black prospective jurors, appellant's counsel stated that he had "reason to believe that this is a pattern prohibited under the Wheeler case. And, therefore, I object to the challenge on that ground." The court asked if defense counsel had any other foundation for his objection, and counsel replied: "I would note that by my count that the, as I recall, six other jurors of the Black race have disappeared by virtue of various challenges prior to this point. The pool of Black jurors is exceedingly small in this panel. So I felt constrained to bring this to the Court's attention to [sic ] the earliest possible moment with respect to the exercise of premptories [sic ]. I believe it's incumbent on [the prosecution] to explain the exercise of the challenge." The trial court denied appellant's motion for failure to establish a prima facie case. The final jury included one Black juror.

As have courts facing similar showings, we find that the trial court did not err in ruling that appellant failed to make a prima facie case. In People v. Rousseau (1982) 129 Cal.App.3d 526, 179 Cal.Rptr. 892, the prosecution used peremptory challenges to strike the only two Blacks in the jury panel. On appeal, Division Four of this district noted that the defendant's attempt to make a prima facie case of improper exclusion "was limited to his statement that 'there were only two blacks on the whole panel, and they were both challenged by the district attorney ...,' " and found that this statement "was not a prima facie showing of systematic exclusion." (Id., at p. 536, 179 Cal.Rptr. 892.) Following Rousseau, the Supreme Court in People v. Wright (1990) 52 Cal.3d 367, 399, 276 Cal.Rptr. 731, 802 P.2d 221, found that the defendant failed to establish a prima facie case "solely by his observation that one prospective juror peremptorily challenged by the prosecutor was Black." Similarly, in People v. Howard, supra, 1 Cal.4th at page 1154, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the Supreme Court found the defendant's showing "completely inadequate" where he showed only "that the prosecutor had challenged the only two Black prospective jurors." We likewise find that appellant's brief explanation of the basis of his objection failed to establish a prima facie case. (See also People v. Harvey (1984) 163 Cal.App.3d 90, 110-111, 208 Cal.Rptr. 910 [exclusion of two Blacks does not alone establish a prima facie case, especially where one Black remains on jury].) 3

We reject appellant's argument that the prosecutor's explanations for challenging prospective juror Willie G. "in and of themselves provide evidence of racial motivation because they are obvious mischaracterizations of the actual voir dire of the juror." The prosecutor did not explain his reasons for striking Willie G., but simply responded to the trial court's request for identifying facts that would enable it to remember him. The court expressly prevented the prosecutor from explaining his reasons for striking Willie G. 4 Nor did the prosecutor mischaracterize Willie G.'s voir dire as appellant contends. The prosecutor directed the trial court's attention to a page of Willie G.'s voir dire that "particularly stated that he was against capital punishment." In fact, on the cited page, Willie G. stated: "I'm against capital punishment." In response to the trial court's request for identifying information, the prosecutor also straightforwardly responded that Willie G. "was once represented by the Public Defender according to the corpus printout; and he, when I asked him a question if he had ever been represented by the Public Defender, he said no." This statement accurately reflects Willie G.'s voir dire.

We also reject appellant's argument that a comparison of Willie G. and jurors whom the prosecution did not strike establishes a racial motivation for the strike. The Supreme Court has held that such a comparison is inappropriate because it "does not properly take into account 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." (People v. Johnson (1989) 47 Cal.3d 1194, 1220, 255 Cal.Rptr. 569, 767 P.2d 1047; see also People v. Fuentes (1991) 54 Cal.3d 707, 714-715, 286 Cal.Rptr. 792, 818 [5 Cal.App.4th 784] P.2d 75.) Thus, appellant's reliance on the prosecution's failure to strike other jurors is unavailing. 5

Finally, we find that the record amply " 'suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question.... [Citation.]" (People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) As we have previously stated, prospective juror Willie G. declared during voir dire: "I'm against capital punishment." Similarly, when the court questioned Alrena W. regarding her feelings about the death penalty, she replied: "Well, I don't think I would feel for the death penalty." Upon the prosecution's further inquiry, she stated: "Now, I would feel like it's impossible for me, I wouldn't want to impose the death penalty on no one because it doesn't--it doesn't bring the people back." Both jurors also stated that they could, in fact, impose the death penalty...

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