Opinion
D040426.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ANTHONY SEXTON, Defendant and Appellant.
Steven Anthony Sexton appeals a judgment arising from his conviction of two counts of second-degree robbery and sentencing him to prison for 70 years to life. He contends the trial court (1) abused its discretion in denying his motion to quash the jury venire on the ground that it did not reflect a fair cross-section of the community and (2) either misunderstood its discretion to dismiss his strike priors or abused that discretion in denying his motion to strike those priors. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 7, 2001, Sexton robbed an Arco AM/PM minimarket in Lemon Grove. Sexton told store cashier Anthony Wright that he had a gun, although Wright never saw a weapon. Sexton robbed the same minimarket again in the early evening of January 24, 2002, when Wright was again on duty. Wright recognized Sexton, who pulled out a shotgun and demanded money. The minimarkets surveillance cameras recorded both incidents.
The district attorney filed an information charging Sexton with two counts of robbery and alleging Sexton had personally used a firearm in connection with the second count and had suffered certain serious felony and strike priors. Before trial, the prosecutor offered to let Sexton plead guilty to the armed robbery count and two strike priors, for which he would request a 25-year-to-life sentence. Sexton declined the prosecutors offer; at trial a jury convicted him of both robbery counts and found the personal use allegation true.
In a bifurcated proceeding, the court found true the allegations that Sexton had suffered two serious felony priors and two strike priors. At the sentencing hearing, the court denied Sextons request to dismiss the strike allegations and imposed two consecutive 25-year-to-life terms on the robbery counts, two five-year serious felony enhancements and one 10-year firearm use enhancement. Sexton appeals the resulting judgment.
DISCUSSION
1. Venire Selection
At the outset of trial, Sexton, who is Black, moved to exclude the prospective juror venire because only one of its 56 members was Black. The court denied the motion, finding that the issue was not raised properly and that there was no basis for concluding that the members of the jury venire would not be fair or impartial. On appeal, Sexton reiterates his challenges to the adequacy of the venire.
A criminal defendant has a constitutional right to trial by a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; generally People v. Burgener (2003) 29 Cal.4th 833, 856, and cases cited therein.) This right guarantees that the pools from which juries are drawn will not systematically exclude distinctive groups in the community. (People v. Burgener, supra, at p. 856.) For this purpose, "community" is defined as the judicial district in which the case is tried. (Williams v. Superior Court (1989) 49 Cal.3d 736, 744-746.)
To succeed on a claim that the right to a fairly drawn jury has been violated, a defendant must first make a prima facie showing that (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation is due to systematic exclusion of the group in the jury-selection process. (People v. Burgener, supra, 29 Cal.4th at p. 856, citing Duren v. Missouri (1978) 439 U.S. 357 (Duren ).) If the defendant establishes such a prima facie case of systematic underrepresentation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the venire. (People v. Burgener, supra, 29 Cal.4th at p. 856.)
In the proceedings below and on appeal, Sexton focuses on what he contends is a disparity between the number of Blacks in the community and the number involved in the venire called as potential jurors for his trial, arguing that the "systematic disproportion [within the venire] itself" demonstrates that his right to a fairly drawn venire was violated. There are a number of problems with Sextons argument. First, a violation of the right to a fairly drawn jury is not established by the fact that a particular venire fails to reflect the composition of the local community. (See People v. Massie (1998) 19 Cal.4th 550, 580.) Second, Sexton did not introduce any evidence in the underlying proceedings to substantiate his claim of disproportionality. Although he now suggests that the trial court could have taken judicial notice of census information relating to the community, Sexton never presented such information or requested that the trial court take judicial notice of such information, nor does he argue that the trial court was required to take judicial notice of such information on its own motion.
Even if Sexton had provided evidence of disproportionality to the trial court, however, his constitutional claim would nonetheless fail because he did not make a prima facie showing that the disparity was caused by the systematic exclusion of Blacks. In People v. Burgener, supra, 29 Cal.4th at page 857, the California Supreme Court held that a defendant does not discharge his burden of demonstrating that the underrepresentation was due to systematic exclusion merely by offering statistical evidence of a disparity, but must also show that the disparity is the result of an improper feature of the jury selection process. Sexton contends that the inclusion of the latter "leads to unconscionable results" and ignores the United States Supreme Courts analysis in Duren. However, Duren does not stand for the proposition that underrepresentation alone is sufficient to establish the constitutional violation. (Duren ,supra, 439 U.S. at p. 364 [systematic underrepresentation must result from systematic exclusion of the group "in the jury-selection process, italics added].) In any event, we are not at liberty to ignore the California Supreme Courts determination of the issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For these reasons, we reject Sextons argument that we must reverse the judgment because the court abused its discretion in denying his motion to quash and thus violated his right to a fairly drawn jury venire.
Sexton alternatively argues that we should remand the matter for further proceedings so that the trial court can determine whether the process in place for setting up jury venires at the time of his trial complied with applicable constitutional requirements. However, Sexton did not make the appropriate showing in support of his challenge to the jury venire in the underlying proceedings, nor did he request additional time to attempt to do so. Under these circumstances, the request for a remand essentially seeks a second bite at the apple, which we will not indulge.
2. Denial of Sextons Motion to Dismiss the Strike Priors
A trial court has discretion to dismiss strikes in the interests of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In deciding whether to dismiss strikes, the court "must consider whether, in light of the nature and circumstances of [the defendants] present felonies and prior serious and/or violent felony convictions, and the particulars of [his] background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of" the prior strikes. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) In exercising its discretion, the court may strike a strike prior as to less than all of the currently charged offenses. (People v. Garcia (1999) 20 Cal.4th 490, 492 [a trial court has discretion to strike priors on a count-by-count basis and thus may strike prior conviction allegations with respect to a relatively minor current felony, but decline to do so with respect to a serious or violent current felony].)
We review a trial courts decision whether to dismiss strike priors for an abuse of discretion. (Romero, supra, 13 Cal.4th at p. 530.) This standard is deferential, "ask[ing] in substance whether the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts." (Williams, supra, 17 Cal.4th at p. 162 [citations omitted].) A defendant who seeks reversal of the trial courts discretionary decision must show that the decision was "irrational or arbitrary," not merely that reasonable people might disagree about how they would exercise the discretion if it were theirs. "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we [must] affirm the trial courts ruling . . . ." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
Sexton argues that the trial courts comments at the sentencing hearing indicate that it misunderstood its discretion to strike either or both of his strike priors or, alternatively, that it abused its discretion in denying his motion to strike.
A. Discretion to Strike
We find no merit in Sextons contention that the trial court did not understand it had discretion to strike one or both of the strike priors. At the sentencing hearing, the prosecutor emphasized the courts discretion to strike the strike priors if the circumstances so warranted, but argued that the absence of any mitigation as to the current offenses, Sextons history of continuous criminal behavior and his "dismal" prospects of living a law-abiding lifestyle in the future justified the denial of the motion to strike. Sexton argued that the remoteness of the two prior offenses justified granting his motion.
In ruling on the motion, the court indicated that there was "no basis, no legitimate basis, that would be even upheld in an appellate court that I could give for striking a strike in this case." The court observed that Sexton had not been crime-free since 1984, committing crimes "for almost all of his adult life." It found that, based on an application of the Williams criteria, there was no basis for striking the strike priors and thus it "decline[d] to do so." On this record, it is clear that the court understood that it had discretion to dismiss Sextons strikes.
Sexton nonetheless argues that the trial court did not consider the option of dismissing the strike priors as to one but not both of the current charges and thus the matter must be remanded for it to exercise such discretion. However, the record of the sentencing hearing does not reveal that the trial court misunderstood its discretion to strike strikes on a count-by-count basis and, in the face of a silent record, we cannot presume such a misunderstanding. (People v. Fuhrman (1997) 16 Cal.4th 930, 945.) Sexton has not shown that a remand is necessary or appropriate.
B. Abuse of Discretion
We also find that the trial court did not abuse its discretion in denying the motion to strike. As the court noted, Sextons strikes were part of a continuous pattern of criminal conduct that occurred during those periods when Sexton was not incarcerated rather than isolated incidents in the distant past that were followed by a substantial period of good conduct. Under these circumstances, the remoteness of the strike convictions does not favor their dismissal. Further, the fact that Sextons age renders it likely that he would die of old age in prison or be released in his mid-60s if the court struck one or both of the strike priors does not remove him from the spirit of the statutory scheme. (People v. Strong (2001) 87 Cal.App.4th 328, 345.) Finally, the fact that appellate courts have upheld trial court decisions to strike strikes arising out of more serious criminal behavior than those involved here does not establish that the trial courts decision in this case was irrational or arbitrary. The trial court acted well within its discretion in denying Sextons motion to strike his strike priors.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., AARON, J.