People v. Lenora, D051304 (Cal. App. 2/27/2009), D051304

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THE PEOPLE, Plaintiff and Respondent, v. VANDERVEER LENORA, Defendant and Appellant.

D051304

Court of Appeals of California, Fourth Appellate District, Division One

February 27, 2009

Not to be Published in the Official Reports

APPEAL from a judgment of the Superior Court of San Diego County, No. SCD199414, Howard H. Shore, Judge. Affirmed as modified.

HALLER, J.

Vanderveer Lenora appeals from a judgment convicting him of transporting cocaine base (count one), selling cocaine base (count two), and possessing cocaine base for sale (count three), with true findings that he had incurred prior drug-related convictions requiring enhancement of his sentence under Health and Safety Code section 11370.2, subdivision (a). He contends the trial court erred in denying his pretrial motion for discovery to determine if the procedures used by the San Diego County Jury Commissioner's office (the County) for summoning jurors conformed with his constitutional right to a jury drawn from a cross-section of the community. He also argues the trial court erred in failing to: (1) stay his sentence for count two under Penal Code section 654; (2) strike the Health and Safety Code section 11370.2 enhancements for counts two and three; and (3) hold a hearing to address his postconviction assertion that he had been provided ineffective representation at trial.¹

We find no reversible error, except we modify the judgment to strike the Health and Safety Code section 11370.2 enhancements for counts two and three. As so modified, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 2006, Officer Dan Wilson was working undercover in a drug "buy-bust" operation in the downtown area of San Diego. At about 11:00 p.m., he told a man (Mark Esser) that he was looking for " `a 20,' " which meant $20 worth of rock cocaine. Officer Wilson gave Esser a $20 bill that had been previously photocopied by the police.

Officer Wilson walked with Esser around the neighborhood as Esser made contact with several people to inquire about buying the narcotics. After about 10 minutes, Officer Wilson noticed a woman (Francine Johnson) driving a Jeep with a male passenger (Lenora) in the front seat. Johnson parked the Jeep on 15th Street, and she and Lenora exited and stood by the vehicle. Esser approached Lenora and spoke to him. Officer Wilson saw Lenora move his head to direct Esser to Johnson. Esser handed the money to Lenora. Esser and Officer Wilson then approached Johnson. Johnson retrieved rock cocaine from her shirt and gave it to Esser, and Esser put the drugs in his pocket.

After Esser and Officer Wilson walked away from the vehicle and crossed the street, Esser gave the drugs to Officer Wilson. Officer Wilson then gave a signal for other members of the police narcotics team to effectuate the arrests.

Responding to the signal relayed by Officer Wilson, uniformed Officer Michael Day drove his police vehicle to the scene. As Officer Day was handcuffing Johnson, he saw Lenora place something under the bumper of the Jeep. When Officer Day looked under the bumper, he found a baggie containing four pieces of rock cocaine and the prerecorded $20 bill. When searching Lenora, Officer Day found $401 cash and two cell phones. The four pieces of rock cocaine found under the bumper were worth about $20 per rock. Prosecution experts opined that the four pieces of rock cocaine were possessed for sale.

Lenora was convicted of transporting cocaine base (count one), selling cocaine base (count two), and possessing cocaine base for sale (count three), with true findings on several enhancements. He was sentenced to 10 years in prison.

DISCUSSION

I. Jury Venire Issue

A defendant has a constitutional right to a jury drawn from a representative cross-section of the community. (People v. Anderson (2001) 25 Cal.4th 543, 566.) This guarantee "mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community." (Ibid.) To raise a claim of systematic exclusion of a cognizable group in the jury pool or venire, the defendant must file a pretrial motion and make a prima facie showing of the constitutional violation. (See People v. Fauber (1992) 2 Cal.4th 792, 816; People v. Jackson (1996) 13 Cal.4th 1164, 1194.)² To assist with establishment of a prima facie case, a defendant is entitled to discovery of information relevant to the jury selection procedures upon a showing of a reasonable belief of a constitutional violation. (People v. Jackson, supra, 13 Cal.4th at p. 1194.) Here, Lenora filed a pretrial discovery motion to investigate various theories of systematic exclusion identified by a defense expert. The trial court denied his motion. Lenora now challenges this ruling on appeal. We find no error.

A. Background

In September 2006, prior to trial, Lenora filed a motion requesting discovery pertaining to the County's procedures for summoning jurors.³ The same discovery motion had been filed in two other unrelated cases pending before different judges. To avoid duplicative evidentiary hearings, the parties agreed to submit the transcripts and declarations presented in those cases for the trial court's consideration when ruling on Lenora's discovery motion.⁴

This information included the results of a survey performed by demographics expert Dr. John Weeks suggesting underrepresentation of Hispanics and Asians in the jury venire; a description of the County's procedures for summoning jurors; and Dr. Weeks's theories supporting the defense claim that discovery was needed to investigate the causes of the underrepresentation.⁵

1. Evidence of Underrepresentation

To investigate underrepresentation, Dr. Weeks randomly selected 100 jurors from the jurors who reported for duty on September 18 and 19, 2006, at the downtown branch of the Superior Court (where Lenora was being tried). Using surnames, he found 12 percent Hispanic names and 6 percent Asian names on September 18, and 9 percent Hispanic names and 8 percent Asian names on September 19. Census figures for 2005 showed San Diego County's jury-eligible population to be 19 percent Hispanic and 10 percent Asian. Combining the results from the two days, Dr. Weeks concluded that this showed (1) an absolute disparity of 8.5 percent for Hispanics and 3 percent for Asians, and (2) a relative disparity of 45 percent for Hispanics and 30 percent for Asians.⁶

2. The County's Procedures for Summoning Jurors

As authorized by Code of Civil Procedure section 197, subdivision (b), the County uses the list of registered voters and the Department of Motor Vehicles (DMV) list of licensed drivers and identification cardholders as its source list for selection of prospective jurors. Twice a year, these lists are submitted to a third party vendor, Jury Systems Incorporated (JSI). JSI merges the two lists and extracts any duplicates from the list (the merged-purged list). In 2005 and 2006, the merged-purged list had about 2.5 million names on it. The list is then revised to eliminate individuals who have been permanently or temporarily excused, who are deceased, and who have recently served as jurors. This creates the master jury list which is used to mail the summonses to prospective jurors. In 2005 and 2006, there were about 800,000 names on the master jury list.

In October 2006, the County changed its system for compiling the master jury list. It decreased the categories of permanent excuses and shortened the period of time for an excuse based on recent jury service. This resulted in 2.5 million names on the merged-purged list after the elimination of duplicates, and 1.2 million names on the master jury list after the suppression of the additional categories of persons (i.e., permanently and temporarily excused persons, deceased persons, and persons who had recently served).⁷

In addition to the persons removed prior to the creation of the master jury list, prospective jurors may be excused after they are mailed summonses. An individual who receives a summons may request an excuse for undue hardship as authorized by the Code of Civil Procedure and defined in California Rules of Court, rule 2.1008(d).⁸ These excuses are reviewed by Superior Court staff. If the excuse is one permitted under the Code of Civil Procedure and California Rules of Court, it is granted; if not, the prospective juror is sent a "kickback" letter requiring the person to report for service. If a person does not request an excuse or appear for service, the County performs no follow-up to try to secure the person's attendance.

Summonses for service at the downtown central division courthouse are sent on a county-wide basis by zip code. In contrast, summonses for the other county courthouses (including the South Bay courthouse) are sent only to persons residing in or near that area of the county. A person who completed jury service at the South Bay courthouse would be excused from jury service at the downtown location for a 12-month period.

In 2005, 65 percent of the people who were sent summonses were granted excusals from, or postponement of, jury service. Out of the remaining 35 percent of eligible prospective jurors, 39 percent actually appeared for service. This number represents 13 percent of the people who were originally sent summonses.⁹

3. Dr. Weeks's Theories Regarding Underrepresentation

Dr. Weeks identified several factors that he viewed as suggesting the County's procedures systematically excluded cognizable groups and created a disparity in their representation on the venire. The issues he identified were whether (1) JSI did not adequately remove duplicate names when it compiled the merge-purge list, (2) the high number of excuses that were granted and the high number of people who failed to respond in any fashion to the summonses created a nonrandom system, and (3) the higher percentage of Hispanics in the population in the southern portion of the county resulted in service of...