Summary
affirming conviction under California Penal Code § 12021 for possession of replica muzzle-loading pistol
Summary of this case from United States v. Aguilera-RiosOpinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 204399
Haerle, Acting P.J.
I. INTRODUCTION
After a jury trial, appellant, Randall F. Charlton was convicted of one count of assault with a firearm on Mitchell Powell (Pen. Code, § 245, subd. (a)(2)). He was also convicted of one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)), and negligent discharge of a firearm (§ 246.3). The trial court found true allegations that he was ineligible for probation (§ 1203, subd. (e)(4)) due to prior murder and robbery convictions and had prior serious or violent felony convictions and prior serious felony convictions. (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c) and 667, subd. (a)(1).)
All further statutory references are to the Penal Code, unless otherwise noted.
Appellant was sentenced to 11 years in prison.
On appeal, appellant argues that the trial court erred in granting the People’s claim under Batson v. Kentucky (1986) 476 U.S. 79, 98 (Batson), and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). He also contends the trial court erred when it chose, as a remedy for the defense’s violation of Batson-Wheeler, to reseat the juror against whom the court found a peremptory challenge had been improperly used. He also argues that the court erred in admitting various statements in which he used offensive language to describe African-Americans and erred in denying a continuance when this evidence was discovered prior to trial by the People. He argues that the court also erred in excluding a remote act of violence perpetrated by the victim of one of the two charged incidents and, finally, that the trial court improperly instructed the jury with the required mental state for assault.
None of these contentions has merit; we thus affirm the conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
Over the course of two days – September 16 and 17, 2007 – appellant was involved in two separate violent confrontations in San Francisco’s Tenderloin neighborhood. At the time of the two incidents, appellant lived in a first floor apartment in a building at 930 Post Street. He lived with the manager of the apartment building
All other date references are to the year 2007, unless otherwise noted.
1. September 16 Incident
On September 16, Linda Hill made a statement to a San Francisco police officer about an incident that took place shortly after 7:00 a.m. on that day. The parties stipulated that Hill’s statement was as follows: “Hill stated she looked out of her apartment window and observed [Lawrence] Gomez inside her car honking the horn. Hill stated that she ran outside her apartment to stop Gomez from causing additional damage to her vehicle. When Hill got outside Gomez was no longer in her vehicle. Hill stated that Gomez went up to her and grabbed her by the neck and started to choke her. While Gomez was choking Hill, he stated, ‘I want my shirt you stupid Bitch.’ [¶] As Hill was screaming for help an unknown white male, who was walking southbound on Larkin Street, told Gomez to ‘stop.’ Gomez stated, ‘fuck you’ to the unknown male. At this point, the unknown suspect reached in his right pocket and grabbed a long black gun and pointed it toward Gomez’s direction. Gomez released his hands from Hill’s neck and ran to the corner of Post and Larkin Street. There was an unknown bus located on the corner of Post and Larkin Street which he entered, as he departed the area.
“Hill stated that the unknown suspect walked to the corner of Larkin Street and Post Street and shot a single shot toward the bus headed eastbound on Post Street. Hill described the suspect as a white male, mid-40s, wearing a blue jacket, walking a small dog. The suspect was last seen walking eastbound on Post Street.” Hill identified appellant as this man.
Maurice Knowles, who lived in a second floor apartment at Post and Larkin, testified that at around 7:00 a.m., he heard “a bunch of arguing... coming from the sidewalk.” He heard three voices, one female and two male. The first voice, a female voice “sounded freaked out. She kept hollering, ‘Somebody call the cops. Somebody help.’” He heard the second voice say, “‘What? What did he say?’” Knowles could not make out what the third voice was saying. The male voices were loud and “definitely angry.”
Knowles looked out his window “and at that point a black gentleman darted across Larkin Street to the bus stop....” This man was “freaked out.” Knowles heard the man say, “‘I can’t believe he called me a Nigger.’”
Knowles saw a “gentleman with a dog [come] out from between two parked cars and [walk] across... Post Street in front of the bus.” This man was “a white guy.” Knowles heard the man holler in the direction of the bus, “‘Don’t trust that man. Be careful with that man. Watch that man.’” The man “put his hands... on the front of the bus, and the black gentleman at that point had gotten onto the bus. The bus driver was not opening the door. He was going like this (shaking head).... [¶] The man [with the dog] walked around to the side of the door and tried to push in and he couldn’t get in, and then he walked around and he pulled a gun out....” Knowles saw him waving a gun. The bus pulled around the man, and Knowles lost sight of him. About twenty seconds later, he heard a single “pop.” Knowles identified appellant as the man waving the gun.
2. September 17 Incident
The next day, September 17, at around noon, two witnesses, James Minch and Jesse Boyes, saw appellant approach a man, later identified as Mitchell Powell. Minch was standing in front of a store on Post Street and had walked past Powell, who was sitting on a step in a doorway. Powell, who was wrapped in a blanket, seemed to be looking into space.
Minch saw appellant pacing back and forth and repeatedly shouting across the street at Powell, “Do you want to go to jail? Do you want to go to fucking jail?” Powell didn’t acknowledge appellant, even when appellant crossed the street toward Powell and continued to shout at him. When appellant reached Powell, he (appellant) pulled out a gun. Appellant aimed the gun at Powell. Appellant was no more than two feet away from Powell and the gun was no more than a couple of inches from Powell’s head.
According to Minch, Powell did not respond to appellant and showed no signs of aggression. Minch did not see if Powell had something in his hands, and did not see anyone approach Powell other than appellant. Powell’s hands remained under the blanket; if they had not, Minch would have noticed. Appellant shot the gun at Powell. Powell jumped up and ran up Post Street. Minch went into the store, the clerk locked the front doors and called 911.
Jesse Boyes also witnessed the encounter between appellant and Powell. Boyes was across the street from Powell and appellant. Boyes described Powell as “Black. He was disheveled. He looked like he probably had been on the street for a while, and he was kind of out of it.” Powell “had white crust around his mouth, like he was kind of dazed looking. He definitely was not sober....” Boyes described appellant as “also disheveled, but... he was just irate, very angry. I mean, the one that was cornered was very dirty. He (appellant) wasn’t all that dirty, but he was kind of out of it too in a different way. He was... angry. The other guy was just kind of out to lunch.” Boyes heard appellant “use[] a couple of derogatory racial terms, and he told the guy to get out of the neighborhood.... He said, ‘Get out of my neighborhood, you Nigger.’”
The man appellant was yelling at “kind of cringed. He was like a [hurt] dog or something, kind of pushed back in the corner.” Boyes heard a gunshot, and the man in the corner staggered down the street. After the “bang” of the gunshot, appellant turned and Boyes saw a gun in his hand. The gun “was like a revolver, kind of like a six shooter kind of thing you’d see... in an old Western movie or something.”
The San Francisco Police officer who responded to the incident, Catherine Daly, saw the victim, Powell, squatting against a building. He was pale, sweaty, and seemed stunned. He said he was not hurt, and had not been shot. Daly, however, noticed that he had blood splatter on his cheek and black, gunpowder-like, residue on his face. His neck was bleeding and there was blood on his jacket. Daly called an ambulance.
Powell was treated at San Francisco General Hospital. He had a gunshot wound to his right clavicle, which was fractured into multiple pieces. There was metal in the soft tissues.
That same day, September 17, appellant came to the apartment of Lucy Phillips, one of his neighbors in the building. Phillips, who had known appellant since 1998, and socialized with him three or four times a week, testified that when he arrived at her door, appellant was “rambling” about an accident that had just occurred. Appellant was carrying a bag and a small cooler and wanted to stay in Phillips’ apartment. Phillips allowed him to do so.
At some point during that day, San Francisco Police Sergeant Martin Lalor, who was part of a specialist counter sniper team, went to Phillips’ apartment. Appellant was inside Phillips’ apartment. Lalor read appellant his Miranda rights and then spoke to him. Appellant gave varying stories about where he had been for the past three hours, claiming first to have been inside for three hours, and then saying he had gone out several hours earlier to the store and perhaps on one other occasion.
Lalor discovered small beard or mustache hairs in the sink in Phillips’ apartment. He also noticed that appellant’s face was pink and appeared to have a rash. He believed appellant had recently shaved.
San Francisco Police Sergeant Gerald D’Arcy, searched the closet of Phillips’ apartment. In it, he discovered a gym bag that contained “round ball ammunition, an instruction manual for muzzle loading handguns, and a security badge in the shape of a star.” He also found an igloo ice chest that contained two muzzle-loading handguns.
Lalor went to appellant’s apartment and, after appellant and his girlfriend consented to a search, removed shotguns and rifles from a safe in the apartment.
Appellant was interviewed by Richard Daniele, a San Francisco Police Department inspector. Appellant told Daniele that, when he was standing next to Powell, Powell “reached out of his pocket... [w]ith like a razor type thing and he hit me right here.” Appellant stated that he “pulled the gun out just to make him stop and as soon as I pulled the gun out of my pocket, it fired.... It’s not that I was meaning to shoot this guy, okay?... I just pulled it out to stop him from stabbing me.” Daniele did not see any blood on appellant’s shirt or any other sign that he had been cut by a knife.
A defense firearms expert examined and tested the guns found in Phillips’ apartment. The guns were not actually old guns, but were replicas that had been manufactured in the last ten years. He stated that the guns were unstable and could react to heat. He also stated that “the only way I could see this gun going off is if somebody pulls the trigger.”
Appellant was charged in count 1 with attempted murder (§§ 664/187, subd. (a)), in count 2 with assault with a firearm of Powell (§ 245, subd. (a)(2)), in count 3 with possession of a firearm by a felon on September 17, 2007 (§ 12021, subd. (a)(1)), in count 4 with assault with a firearm of Lawrence Gomez on September 16 (§ 245, subd. (a)(2)), in count 5 with discharge of a firearm at an inhabited enclosure on September 16 (§ 246) and in count 6 with possession of a firearm by a felon on September 16 (§ 12021, subd. (a)(1).) With regard to count 1, the information alleged that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury (§ 12022.53, subd. (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). With regard to count 2, the information alleged that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged that appellant was ineligible for probation (§ 1203, subd. (e)(4)) due to prior murder and robbery convictions and alleged that appellant had prior serious or violent felony convictions (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)) as well as prior serious felony convictions (§ 667, subd. (a)(1)).
On June 20, 2008, the jury found appellant guilty of counts 2 and 3 and of the lesser offense to count 5. It found appellant not guilty of count 5. Several days later, after deliberating further, the jury found appellant not guilty of count 1.
The jury deadlocked on counts 4 and 6, and the court declared a mistrial as to those counts. The court found true all of the allegations with regard to appellant’s prior convictions.
Appellant was sentenced to 11 years in prison.
This timely appeal followed.
III. DISCUSSION
A. Batson-Wheeler Claim
Appellant contends that the trial court erred in granting the People’s Batson-Wheeler claim. He also argues that the court erred because, as a remedy for the Batson-Wheeler error, it seated the juror who had been removed from the jury venire by the defense.
1. Factual Background
Jury selection in this matter began on May 28, 2008. On May 29, 2008, Juror 1809445, an African-American stated “I live in the Ingleside District. Occupation is retail salesperson. Marital status is I’m single. I live with mother. She’s retired. No kids. No prior jury service.” When asked if there was anything she’d “thought about that struck” her with regard to jury service, she replied, “No, just keep an open mind, be fair and impartial.” She repeated, in response to a question from defense counsel about her ability to keep an open mind with regard to appellant’s prior conviction and gun possession that she could do so. When asked if she had any hobbies, the juror replied “shopping, bowling.” With regard to favorite television shows she stated “Grey’s Anatomy and Boston Legal and Lifetime.”
The defense then exercised a preemptory challenge as to Juror 1809445 and the People asked to approach the bench. There was an “off-record discussion in [the] back hallway, ” and the court recessed the jury and instructed them to return three days later, on the following Monday morning. The court explained that it hoped to get through the jury by noon that Monday and “[p]art of why we’re leaving early now is to attempt to accomplish that without delay.”
The next day, May 30, 2008, in a court session that did not include the jury, defense counsel brought up the People’s objection to his peremptory challenge of Juror 1809445. The court and counsel had the following conversation about defendant’s exercise of that challenge, as well as two other challenges the People argued were evidence of the defense’s discriminatory intent with regard to Juror 1809445.
“[Defense Counsel]:... [T]he prosecution’s made a Wheeler type objection to my exercise of the last juror that I tried to excuse yesterday.
“THE COURT: 1809445.
“[Defense Counsel]: Yes. We’ve talked briefly in the back hallway, but it wasn’t on the record, and at this time I think it’s incumbent on the prosecution to make a prima facie case of discrimination before the Court has to make any inquiry. If she can’t do that, then we’re done as far as that.
“THE COURT: Yeah.
“[Defense Counsel]: And I might add the record should show there’s been some discussion at... bar about challenges for cause but weren’t put on the record, but I think were generally followed through on in court on the record and after we talked about it.... [¶] At the time the objection was made to my challenge with 1809445, there’d been no previous objection or notice or anything that I was exercising anything untold. At that point, though, she went back and criticized two of my earlier peremptory challenges.
“THE COURT: Right.”
Defense counsel then pointed out that of the two earlier peremptory challenges, he had no idea one of the jurors was Black. He “vaguely remember[ed]” the other juror [number 1945214], “not because she was black, for other reasons.”
The court asked the People to make out a prima facie Batson-Wheeler case with regard to the peremptory challenges to these three individuals. The People argued that defense counsel had excused two other jurors who appeared to be African-American and a third who might be African-American and there did not appear to be any basis for doing so.
Defense counsel then described his non-discriminatory reasons for excusing the first two jurors, one of whom had been the recent victim of an assault and robbery and the other who had served on a hung jury and whose co-worker or cousin had been murdered. ~(4 ART 351)~
With regard to Juror 1809445, defense counsel's explanation was as follows: “I found it very difficult to engage her. As the Court might know, what I try to do is get the jurors to converse with me so I can establish something so they can listen to me and they can actually have something to say to me, and I can get a little bit of insight to what kind of person they are, how they will perform or how they will act in a jury room, how they will interact with other jurors and things like that.... It’s sort of a gestalt stick. It doesn’t work all the time. Some people don’t like me, I found that out, but I try to establish some sort of rapport so they’ll at least listen to me throughout the case.”
Counsel told the court: “... I could get very little out of her, and she was the first one I turned to.... I couldn’t really get her engaged in anything, so my feeling on her is she would not be an appropriate juror to – you have to give and take when you’re in a jury room. That’s what I need. I need people who are going to give and take, talk and listen. I didn’t think she was going to participate as far as talking because she wasn’t talking much to me anyway. For this case, I need people that will do that, that will actively engage and talk and discuss things, and I just didn’t feel – this was sort of a based on the conversation, a hunch and a feeling I had that she would not be the type of juror that I need on this case that would be engaged both in the courtroom proceedings but particularly engaged later to deliberate this case, and I need everybody to deliberate. [¶ She was certainly on the lowest end of the scale that I could determine on anybody who's left on that panel, and again that was based on my experience. I’ve been doing jury trials for, oh, probably 35 years, and sometimes you can’t articulate the response you get from people, but again she was excused for purely race neutral reasons.”
The court rejected defense counsel’s explanation, finding that it was not “genuine” because it did not comport with the court’s observation of the same witness. The court stated: “I am being asked to make a kind of evaluation of the genuineness of your explanation of why you exercised a preemptory challenge against these jurors, and particularly 1809445, because it comes up with respect to her. I’m not saying that I would do something different or the same. I have to look at what you’ve told me and evaluate that and determine whether it, in my judgment, makes sense. That’s what I’m being asked to do. And what I’m telling you is that I don’t, in my observations of what went on during her voir dire, don’t agree with you, that the explanation that you just gave about why you exercised a peremptory challenge against her is a reasonable explanation. I just don’t see it, especially when I look to other jurors against whom peremptory challenged weren’t made, and I just don’t see any basis in the explanation that you gave for challenging 1809445. [¶] So that’s my view, that 1809445 in the same way as other jurors answered questions that were posed to her. She seemed by my observation, her demeanor someone who was anticipating participation rather than avoiding it or being reluctant. There was nothing in her demeanor that suggested what you described as her potential inability or unwillingness to participate in deliberations with other jurors.”
The court initially asked counsel to give non-discriminatory reasons for his challenges to all three jurors. After counsel did so, the court did not explicitly rule on whether the non-discriminatory explanations given by counsel as to the first two excused jurors, 1906390 and 1945214, rebutted the People’s prima facie case. However, after the defense made its presentation and stated “all the challenges that have been challenged have been race neutral and appropriately exercised, ” the court stated, “Well, I wish I could believe that about [1809445]. I just don’t.” Although the court was not explicit in its ruling, we infer from the court’s focus on juror 1809445 at this point in the hearing, that it found defense counsel had articulated genuine, non-discriminatory reasons for exercising peremptory challenges as to the other two jurors.
With regard to the appropriate remedy, the People waived a mistrial in favor of seating the improperly-challenged juror on the panel. Defense counsel argued that to do so would be to “put on a case now that the defendant is a racist, that his attorney is a racist....” He stated that “it’s going to be so obvious that the District Attorney made the objection, we approached the side bar, we had to stop jury selection, and we come back and then the Court will say, okay, 1809445 you’re not kicked off, nobody can kick you off. That’s the import that will be for everybody on the jury, including, 1809445; and what will happen then is Mr. Charlton will be prejudiced, and the due process and fair trial rights will be prejudiced....”
The trial court disagreed and seated juror 1809445 when the jury next returned to the courtroom.
2. Discussion
Our Supreme Court recently summarized the general principles to be employed in adjudicating a Wheeler/Batson claim. “Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.]” (People v.Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)
The Lenix court explained that “[t]he Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims. [Citations.]” (Lenix, supra, 44 Cal.4th at pp. 612-613.)
Here, the prosecutor challenged the defendant’s use of a peremptory challenge. The Batson three-step inquiry, however, is the same.
A proponent of the strike must give a “‘“clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason.
“At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.]” (Lenix, supra, 44 Cal.4th at p. 613.)
“‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.”’ [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ [Citation.]” (Lenix, supra, 44 Cal.4th at pp. 613-614.)
We review the trial court's decision for substantial evidence (Lenix, supra, 44 Cal.4th at p. 627) and sustain its ruling “unless it is clearly erroneous.” (Snyder v. Louisiana (2008)552 U.S. 472, 477).
Appellant first argues that the trial court erred in finding that the People had made out a prima facie case of discrimination as to Juror 1809445. We disagree.
“To make a prima facie showing of group bias, ‘the defendant must show that under the totality of the circumstances it is reasonable to infer discriminatory intent.’” (People v. Davis (2009) 46 Cal.4th 539, 582, quoting People v. Kelly (2007) 42 Cal.4th 763, 779.) The Davis court examined the types of evidence on which a prima facie case may be based: “‘Though proof of a prima facie case may be made from any information in the record available to the trial court, we have mentioned “certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic – their membership in the group – and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.”’ [Citations.]” (People v. Davis, supra, 46 Cal.4th at p. 583.) The use of a peremptory challenge to excuse a single juror for racially discriminatory reasons is improper under Batson/Wheeler: “When a party makes a Wheeler motion, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.)... Of course, a single discriminatory exclusion may also violate a defendant’s right to a representative jury.” (People v. Avila (2006) 38 Cal.4th 491, 549.)
Keeping in mind the deference we show the trial court’s determination of whether a prima facie case has been made, we find the court did not err. In finding a prima facie case, the court explained that “there didn’t seem to me, based on what I heard from all the jurors who were excused by way of a peremptory challenge, any reason why 1945214 (the African-American juror excused prior to Juror 1809445) or 1809445 would be challenged because nothing that they said suggested to me a basis for excusing them.” The court was not unreasonable to infer discriminatory intent. (People v. Davis, supra, 46 Cal.4th at p. 582.)
Appellant, however, contends that the exclusion of one or two African-American jurors was not sufficient to “suggest a pattern of impermissible exclusion” (People v. Semien (2008) 162 Cal.App.4th 701, 708; People v. Bell (2007) 40 Cal.4th 582, 598). Neither of these cases, however, establishes a bright-line rule with regard to what constitutes a pattern of impermissible exclusion. In fact, in Johnson v. California (2005) 545 U.S. 162, 173, the court found, with regard to the dismissal of three African-American potential jurors that the inference of discrimination was sufficient to invoke a comment by the trial judge “‘that “we are very close, ”’ and on review, the California Supreme Court acknowledged that ‘it certainly looks suspicious that all three African-American prospective jurors were removed from the jury.’ [Citation.] Those inferences that discrimination may have occurred were sufficient to establish a prima facie case under Batson.” Here too, on this record, the trial court’s inferences were sufficient to establish a prima facie case.
Appellant also argues that, in finding that defense counsel’s reasons for excusing Juror 1809445 were not genuine, the court “applied the wrong standard” and “erroneously substituted its judgment of whether there was an objective reason to remove juror number 1809445, rather than making an assessment of the sincerity of the reasons offered by the defense counsel for her removal.” We disagree.
It is evident from the record that the trial court was concerned, as it was required to be, with the “genuineness” of defense counsel’s explanation for challenging Juror 180445 and not with the objective reasonableness of counsel’s explanation, as appellant argues. The court explained that: “You know, this process is set up in a particular way that requires a showing by both of you and then a determination by the Court, and it’s only based on whether or not you have offered a non-discriminatory reason that I feel is genuine in excusing that juror....” In seeking to determine whether counsel’s explanation was “genuine, ” the trial court was not evaluating whether the explanation was objectively reasonable. Rather, the court was concerned with defense counsel’s credibility. Here, the court simply did not find defense counsel’s explanation genuine or credible. In so doing, it applied the correct standard. The court was uniquely situated to make this finding. As one court has observed, “[t]he best evidence of whether a race-neutral reason should be believed is often ‘the demeanor of the attorney who exercises the challenge, ’” an evaluation that lies “‘peculiarly within a trial judge’s province.’” (People v. Stevens (2007)41 Cal.4th 182, 198.) We will not disturb this finding on appeal.
Appellant also contends that the court erred because it did not change its ruling when, a week later, defense counsel asked to “augment[] the record” by providing the court with an additional explanation for its challenge to juror 1809445 – that she was twice late to court and had not answered a question in the juror questionnaire. The court stated, “what does that mean, augmenting the record? It just means you’re going back and making up more reasons or giving more reasons for something that was reviewed last week, and there was a ruling and it’s over. I mean, you ask for a rehearing I supposed based on, you know, some more stuff that you have come up with since last Friday, but I mean I don’t understand that.” Counsel replied, “Well, let me say this, Judge. I understand what the Court is saying. I thought I provided an adequate explanation. The Court did not agree with it. That’s basically what happened, short and sweet. I, however, could have added more stuff. I didn’t think I had to because I thought I had a sufficient explanation. But what I would only do judge in addition to my comments so far is I would like to cite the two cases which basically say that even hunches are permissible to use as reasons.”
Appellant argues that the trial court erred because it “affirmed” its prior ruling and refused to allow the defense counsel to use a peremptory challenge against juror 1809445. This is inconsistent with our reading of the record. Sometime after the trial court ruled that defense counsel’s exercise of a peremptory challenge against juror 1809445 was improper, defense counsel asked to “augment” the record with additional information to explain his decision. When the court stated that this seemed to it to be an effort to have the court reconsider its earlier ruling, referred to his “augmentation” as simply “comments.” Counsel then went on to provide the court with some case law to support its position. As we read the record, the trial court did not err here, because it was not asked to make any ruling. Rather, it listened to counsel’s “comments” and thanked counsel for providing it with case law.
Finally, appellant contends that the trial court erred in reseating juror 1809445 after the People waived dismissal of the venire. We disagree; the court simply re-seated the juror. It did not err in so doing.
Although dismissal of the jury venire is an appropriate remedy for the improper use of a peremptory challenge (see Wheeler, supra, 22 Cal.3d at p. 282), it is not the only remedy. In “situations... in which the remedy of mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges and postpone trial.... [W]ith the assent of the complaining party, the trial court should have the discretion to issue appropriate orders short of outright dismissal of the remaining jury, including sanctions against counsel whose challenges exhibit group bias and reseating any improperly discharged jurors if they are available to serve.” (People v. Willis (2002) 27 Cal.4th 811, 821.) The court did not, of course, have the discretion to reseat the juror “in the absence of consent or waiver by the complaining party.” However, “if the complaining party does effectively waive its right to mistrial, preferring to take its chances with the remaining venire, ordinarily the court should honor that waiver rather than dismiss the venire and subject the parties to additional delay.” (Id. at pp. 823-824.)
Here, the People waved their right to a mistrial and consented to the reseating of Juror 1809445. It is irrelevant that appellant would have preferred that the court grant a mistrial. Nothing in the case law in this area gives him the ability to choose the appropriate remedy for his improper use of a peremptory challenge. Nor should it. To do otherwise would be to permit him to capitalize on his error by dictating his preferred remedy for his error.
B. Admission of Appellant’s Racially Derogatory Statements
At trial, the People requested the court to admit the testimony of appellant’s neighbor, Lucy Phillips, regarding racially derogatory statements made by appellant. The People argued that these statements were relevant to the issue of whether appellant intended to shoot Mitchell Powell or was acting in self-defense, as he argued at trial.
At a hearing under Evidence Code section 402, Phillips stated that she had known appellant for many years and saw him often. In the six months before appellant shot Powell, he frequently referred to African-Americans as “niggers, ” “fuckin’ niggers, ” “goddamn niggers, ” and “jungle bunnies.” He also made statements such as “Goddamn niggers are taking over the neighborhood.” After argument, the court excluded all of appellant’s statements that were generally racist as more prejudicial than probative under Evidence Code section 352. The court, however, admitted the statement made by appellant with regard to “taking over the neighborhood.” It did so after the People argued that although that statement was prejudicial, it showed appellant’s motive and was, therefore, more probative than prejudicial.
At trial, Phillips testified that, in the six months before the incident, she heard appellant make remarks to the effect of, “There’s too many damn niggers in this neighborhood.” The court then instructed the jury with regard to this testimony, “Concerning the last statement that the witness gave relating to some earlier statement that was made, according to her, by the defendant, Mr. Charlton, this statement is admitted for a limited purpose and may not be considered by you to prove that the defendant is a bad person or a person of bad character or that he is or has a disposition to commit a crime. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] The existence of the intent which is a necessary element of the crime charged; [¶] A motive for the commission of the crime charged. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You’re not permitted to consider this last statement that was made by the witness for any other purpose. [¶] Anyone not understand what I just read to you? Okay. I can sort of abbreviate that. It’s to be considered only for motive for the commission of a crime charged or for the existence of intent which is a necessary element of a crime that’s charged and not for any other purpose.”
The trial court did not abuse its discretion in admitting this statement into evidence. That the statement was probative of appellant’s intent in attacking the victim – a question that was very much in dispute in this trial – is without question. As the People point out, a defendant’s prior statements, even ones that are highly inflammatory, are relevant and admissible to show intent for the charged crime. A “death list” of names of intended murder victims (People v. Kraft (2000) 23 Cal.4th 978, 1033-1036), a defendant’s statement to a relative that “I’ve done so many things. I think I would like to kill someone, just to see if I could get away with it.” (People v. Crew (2003) 31 Cal.4th 822, 842) and rap lyrics written by a gang member charged with murder about gang affiliation, guns and the murder of rival gang members (People v. Zepeda (2008) 167 Cal.App.4th 25, 32-35) have all been found admissible to demonstrate intent.
Defendant’s statement to Phillips that there were too many “niggers in this neighborhood” is certainly probative of his intent to shoot Powell after Powell refused to move from defendant’s neighborhood. Nor is the probative value of this evidence “‘substantially outweighed by the probability that its admission [would]... create substantial danger of undue prejudice, of confusing the issues or of misleading the jury.” (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) “‘Prejudicial’” is not, of course, the same as “‘damaging.’” (People v. Karis (1988) 46 Cal.3d 612, 638.)
That appellant referred to “niggers” taking over his neighborhood is certainly offensive. But it is not, as the court noted in People v. Quartermain (1997) 16 Cal.4th 600, 628 so unusual as to be prejudicial. “Expressions of racial animus by a defendant towards the victim and the victim’s race, like any other expression of enmity by an accused murderer toward the victim, is relevant evidence in a murder or murder conspiracy case. Among other things, it is evidence of the defendant’s prior attitude toward the victim, a relevant factor in deciding whether the murder was deliberate and premeditated because it goes to the defendant’s motive.” (Ibid.) Here, because appellant argued that he did not intend to shoot Powell, the evidence of his previously expressed animus to people of Powell’s race in his neighborhood was a highly relevant fact.
Moreover, the trial court was careful to limit the use of evidence regarding defendant’s use of racially derogatory language and did not permit the admission of the many other instances in which Powell referred to “niggers.” The trial court was well within its discretion to admit this single, highly relevant statement under Evidence Code section 352.
Because we conclude that Phillips’ testimony regarding appellant's statement was not inadmissible under Evidence Code section 352, we also conclude that the admission of this testimony did not deprive appellant of due process and a fair trial under the federal Constitution.
C. Maurice Knowles Statement on September 16
At trial, Maurice Knowles, who lived in a second floor apartment at Post and Larkin testified that at around 7:00 a.m. on September 16, he heard “a bunch of arguing... coming from the sidewalk.” He heard three voices, one female and two male. The first voice, a female voice “sounded freaked out. She kept hollering, ‘Somebody call the cops. Somebody help.’” He heard the second voice say, “‘What? What did he say?’” Knowles could not make out what the third voice was saying. The male voices were loud and “definitely angry.”
At that point, Knowles looked out his window “and at that point a black gentleman darted across Larkin Street to the bus stop....” The man was “freaked out.” Knowles heard the man say, “‘I can’t believe he called me a Nigger.’”
The Black gentleman who had darted across Larkin boarded the bus. Knowles then saw a “gentleman with a dog [come] out from between two parked cars and [walk] across... Post Street in front of the bus.” This man was “a white guy.” Knowles heard the man holler in the direction of the bus, “‘Don’t trust that man. Be careful with that man. Watch that man.’” The man “put his hands... on the front of the bus, and the black gentleman at that point had gotten onto the bus. The bus driver was not opening the door. He was going like this (shaking head).... The man [with the dog] walked around to the side of the door and tried to push in and he couldn’t get in, and then he walked around and he pulled a gun out....” Knowles saw him waving a gun. The bus pulled around the man, and Knowles lost sight of him. About twenty seconds later, he heard a single “pop.” Knowles identified appellant as the man waving the gun.
Appellant objected to Knowles’ testimony regarding Gomez’s (the September 16 victim) statement that “I can’t believe he called me a nigger” on the ground that it lacked foundation and that it was inadmissible hearsay. The trial court admitted the evidence. In so doing, it did not abuse its discretion.
With regard to the issue of foundation, there is no question that Knowles had personal knowledge of the facts to which he was testifying. (Evid. Code, § 702, subd. (a) and § 403, subd. (a)(2)). Knowles saw and heard Gomez make the statement to which appellant objects. Moreover, there was certainly evidence that it was appellant to whom Gomez was referring as the “he” who called him a “nigger.” Gomez made this statement just before he ran away with appellant in pursuit of him. It is more than reasonable to infer that appellant was the person who had made the statement.
With regard to appellant’s hearsay objection, the trial court properly rejected it. Knowles’ testimony contained two levels of hearsay: appellant’s out-of-court statement to Gomez, and Gomez’s out-of-court statement overheard by Knowles. At both hearsay levels, the statements were admissible. (Evid. Code, § 1201.) First, appellant’s statement that Gomez was a “nigger” was admissible as a statement by a party. (Evid. Code, §§ 1204, 1220.) Second, Knowles’ testimony regarding Gomez’s statement (“I can’t believe he called me a nigger”) was made while Gomez was “freaked out” and falls within the “excited utterance” exception set out in Evidence Code section 1240, subdivision (b). The trial court was well within its discretion to admit this evidence.
D. Continuance
The People did not learn of appellant’s statement to Lucy Phillips until a few days before trial. As soon as the People received this information, they turned it over to defense counsel. Defense counsel asked for a continuance in order to “prepare for putting on a character defense in this case....” Defense counsel also moved to reopen voir dire to determine whether, in light of this newly discovered evidence, the jurors could be fair and impartial. The trial court granted the latter request and rejected the former. Defendant contends that it erred in doing so. We disagree.
Appellant does not demonstrate how the People violated the reciprocal discovery rules set out in section 1054.1 or 1054.3. In fact, the People appear to have complied fully with section 1054.7, which provides that, when new “material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately....”
Given that there was no violation of the discovery rules, appellant’s contention that the trial court should have sanctioned the People by excluding Phillips’ testimony fails. Similarly, appellant’s contention that the trial court should have imposed a “continuance as a remedy for a discovery violation” also fails. Such sanctions are only appropriate – if at all – upon a showing of a violation. None was shown. Nor was there any violation of the due process clause. The record does not support appellant's suggestion that the late discovery of this evidence was the result of any lack of diligence on the People's part. We conclude, therefore, that the trial court did not err in refusing to exclude the testimony and or grant a continuance.
E. Evidence of Victim’s Prior Acts of Violence
Before trial, appellant sought the admission of two prior incidents involving Powell which, appellant argued, showed a propensity to physical confrontation. Appellant argued that these prior incidents were relevant to support his claim that Powell had a tendency to start physical confrontations and, therefore, appellant’s actions were in self-defense. The first incident occurred in 1996 and involved Powell’s assault of his daughter and another woman. The second incident occurred in a bar in 2001 when Powell sexually touched a bar patron. The trial court excluded the first incident and admitted the second, explaining that the first was “too remote. It's not related in any way. I don’t think it’s probative of much of anything, and I think it’s subject to a 352 analysis. It’s more prejudicial than probative. I don’t think it has any probative value at all, actually. But the other one’s fine.”
The court did not abuse its discretion in excluding evidence of the 1996 incident, which occurred a decade before the charged offense and was remote in time. In addition, the assault was on Powell’s own daughter and, therefore, more prejudicial than probative. The court’s decision to exclude this evidence was within its discretion and, further, does not constitute, as appellant arguments, a violation of his federal constitutional rights. Exclusion of the 1996 incident was not in error and did not make appellant’s trial fundamentally unfair as he argues.
F. Assault Instruction
Appellant argues that CALCRIM No. 8.75 improperly states the law with regard to the required mental state for assault. CALCRIM No. 8.75 instructs the jury that in order to find a defendant guilty of assault with a deadly weapon, the People were required to prove that when defendant did an act with a deadly weapon he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. This instruction is consistent with the law in this area as articulated by our Supreme Court in People v. Williams (2001) 26 Cal.4th 779. Although the lower court in People v. Wright (2002) 100 Cal.App.4th 703, 705 acknowledged that in People v. Smith (1997) 57 Cal.App.4th 1470, it reached a decision contrary to the Williams court, it also acknowledges that it is bound, as are we, by the higher court’s decision on this issue. The giving of CALCRIM No. 8.75 was not, therefore, error.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.