People v. Buckley

Page 860

61 Cal.Rptr.2d 860

53 Cal.App.4th 658, 97 Cal. Daily Op. Serv. 2017,

97 Daily Journal D.A.R. 3655

The PEOPLE, Plaintiff and Respondent, v. Paul Christopher BUCKLEY et al., Defendants and Appellants.

No. A067809.

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

March 18, 1997.

Certified For Partial Publication ^*

Review Denied June 18, 1997.

Carol Strickman, Oakland, for Paul Buckley.

Eric Weaver, Albany, for Daniel Wade.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Herbert F. Wilkinson, Deputy Atty. Gen., for the People.

I. INTRODUCTION

HAERLE, Associate Judge.

Appellants Daniel Adam Wade (Wade) and Paul Christopher Buckley (Buckley) (collectively appellants) were convicted by a jury of various charges stemming from a shoot-out with police officers from the Richmond Police Department when the latter attempted to serve a search warrant at their apartment.

Appellants raise the following trial errors on appeal: (1) the trial court improperly denied their Wheeler/Batson motion; ¹ (2) the jury committed prejudicial misconduct; (3) the prosecutor committed misconduct; (4) appellants' motion to suppress evidence was improperly denied; (5) the trial court erred by excluding evidence as to what a reasonable person would have believed when the officers started battering the apartment door; (6) police testimony about the mental state of marijuana sellers was erroneously admitted; (7) the trial court erred in admitting the search warrant; (8) the trial court failed to properly instruct the jury on the mental element of knowledge; (9) the trial court erred in denying appellants' requested jury instruction on the reliability of spontaneous statements; (10) the trial court erred by failing to properly instruct on the issue of self-defense; and (11) appellants' right to have the jury determine all issues was violated by the trial court's failure to instruct them on knock-and-notice requirements. In addition, Buckley also contends he was improperly convicted of four counts because there was no evidence he intended to assault four different people. We reject each of these contentions and affirm the judgment.

II. PROCEDURAL AND FACTUAL BACKGROUND ^**

III. DISCUSSION

A. Wheeler/Batson Claim

Appellants contend that the prosecutor used peremptory challenges to exclude members of a cognizable group from the jury in violation of their right to trial by a jury drawn from a representative cross-section of the community, guaranteed by article I, section 16, of the California Constitution, and of the prospective juror's right of equal protection. (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748; Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.) We disagree.

As recited in the facts above, this case involved two African-American men who shot and injured two Richmond police officers. ¹⁴ When the prosecutor used two of his peremptory challenges to strike two African-American women, Vera Rutherford (Rutherford) and Joann James (James), counsel for both appellants moved for a mistrial under Wheeler on the grounds that the prosecutor had struck the women solely on the basis of their race. ¹⁵ The trial court denied both motions finding that no prima facie case had been established. ¹⁶ The jury that was ultimately impaneled contained one African-American juror, a fact not mentioned by our dissenting colleague, but a pertinent fact nonetheless. (See, e.g., People v. Dunn (1995) 40 Cal.App.4th 1039, 1053-1054, 47 Cal.Rptr.2d 638.)

It is well established that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias violates both the state and federal Constitutions. (People v. Turner (1994) 8 Cal.4th 137, 164, 32 Cal.Rptr.2d 762, 878 P.2d 521 (Turner ).) " ' "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. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association." ' " (Id. at p. 164, 32 Cal.Rptr.2d 762, 878 P.2d 521, citing People v. Howard (1992) 1 Cal.4th 1132, 1153-1154, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (Howard ), italics in original.) "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.]" (People v. Fuentes (1991) 54 Cal.3d 707, 714, 286 Cal.Rptr. 792, 818 P.2d 75.)

In reviewing a Wheeler motion, "we must begin by recognizing there is a presumption a party exercising a peremptory challenge is doing so on constitutionally firm ground." (People v. Bernard (1994) 27 Cal.App.4th 458, 465, 32 Cal.Rptr.2d 486 (Bernard ).) Because a challenge is presumed valid, it is incumbent for the defendant to show a "strong likelihood" that jurors were challenged because of their group association and not for a genuine, nondiscriminatory purpose. (People v. Garceau (1993) 6 Cal.4th 140, 171, 24 Cal.Rptr.2d 664, 862 P.2d 664.) ¹⁷ "A defendant may not simply rely upon exclusion of the group-associated prospective jurors in establishing 'a strong likelihood' of removal because of group bias. [Citation.] Rather, a defendant should underscore 'other relevant circumstances, such as prospective jurors' characteristics, the nature of the prosecutor's voir dire, or the prospective jurors' answers to questions....' [Citation.]" (People v. Bernard, supra, 27 Cal.App.4th at p. 466, 32 Cal.Rptr.2d 486.)

Ruling on Wheeler motions " ' "requires trial judges to make difficult and often close judgments. They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors." [Citation.] They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience. We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim....' " (People v. Sanders (1990) 51 Cal.3d 471, 501, 273 Cal.Rptr. 537, 797 P.2d 561 (Sanders ), citing People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748, quoting Kuhn, Jury Discrimination: The Next Phase (1968) 41 So.Cal.L.Rev. 235, 295, fn. 5.) When reviewing the denial of a Wheeler motion where the trial court has not found a prima facie case of group bias, we consider the entire voir dire record. (People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) We examine the record, as with other findings of fact, for evidence to support the trial court's ruling. (Ibid.) "If the record 'suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question, we affirm." (Ibid., citing People v. Bittaker (1989) 48 Cal.3d 1046, 1092, 259 Cal.Rptr. 630, 774 P.2d 659.)

We conclude that the trial court acted within its discretion in determining that defense counsel had failed to make a showing of prima facie discrimination. ¹⁸ In particular, defense counsel failed to establish from all the circumstances of the case a strong likelihood that such persons were being challenged because of their group association. (People v. Turner, supra, 8 Cal.4th at p. 167, 32 Cal.Rptr.2d 762, 878 P.2d 521; People v. Howard, supra, 1 Cal.4th at p. 1154, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) Rather, the only bases for establishing a prima facie case cited by defense counsel was that (1) the defendants were African-American, (2) both of the women were African-American and (3) nothing in their questionnaires or responses to oral questions would indicate a particular reason why they would not be suitable jurors. That was the sum total of the defense presentation. But this quantum of showing has consistently been held to be insufficient in demonstrating a strong likelihood that the prospective jurors were being challenged on the basis of their group association. (People v. Turner, supra, 8 Cal.4th at p. 167, 32 Cal.Rptr.2d 762, 878 P.2d 521 [53 Cal.App.4th 666] [defense counsel's statement that all of the challenged prospective jurors were Black and either indicated that they could be fair and impartial or in fact favored the prosecution was insufficient]; People v. Howard, supra, 1 Cal.4th at p. 1154, 5 Cal.Rptr.2d 268, 824 P.2d 1315 [defendant's statement that two Blacks were excluded because they were Black and for no other reason was found insufficient]; People v. Rousseau (1982) 129 Cal.App.3d 526, 536-537, 179 Cal.Rptr. 892 [defense counsel's statement that " 'there were only two Blacks on the whole panel, and they were both challenged by the district attorney' " failed to establish a prima facie case]; People v. Bernard, supra, 27 Cal.App.4th at p. 468, 32 Cal.Rptr.2d 486 [no strong likelihood found where defense counsel simply summarized the background of two challenged African-American jurors and stated that they would make good jurors].) Moreover, the prosecutor accepted a jury which included an African-American. ¹⁹ "While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories...." ( People v. Turner, supra, 8 Cal.4th at p. 168, 32 Cal.Rptr.2d 762, 878 P.2d 521.)

The prosecutor used his third peremptory challenge to excuse Rutherford. ²⁰ Rutherford was a...