Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA 080590 Richard R. Romero, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant James D. Smith was found guilty by a jury of two counts of forgery and two counts of second degree burglary. The court found that appellant had suffered one prior “strike” conviction and that he had served six prior prison terms. Appellant was sentenced to a prison term of eight years four months. The court ordered appellant to pay $500 and $184.96 in restitution to Wal-Mart and CVS. Appellant received 256 days of presentence credit. We affirm the conviction.
The composition of the sentence, which is not challenged, is the high term of three years for one count of forgery doubled for the prior strike and 16 months (1/3 the mid-term) for the second count of forgery; and one year for one of the prior prison terms, the remainder being stricken. Sentences on the second degree burglary counts were stayed.
FACTS
The contentions on appeal do not implicate the facts of the offenses, which we state therefore in summary form.
Both offenses occurred on December 20, 2008; appellant’s modus operandi for both offenses was the same. On each occasion, appellant purchased items with forged American Express traveler’s checks. At the CVS Pharmacy in Long Beach, appellant bought some items for a few dollars and cashed two $100 checks, receiving the balance in cash. At Wal-Mart, also in Long Beach, he negotiated five $100 checks. An alert supervisor at Wal-Mart detected the forgeries, which led to appellant’s arrest.
DISCUSSION
1. The Court Did Not Err in Denying the Wheeler-Batson Motion
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
The prosecution exercised a peremptory challenge in the instance of the sole Black person, Juror No. 10, then on the panel. Appellant, who represented himself during the trial and who is Black, did not object to this challenge.
This case is yet another demonstration why it is almost invariably a poor idea to forego counsel in a criminal trial. The peremptory challenge of the sole remaining Black potential juror may or may not have presented an issue. In any event, it takes professional expertise to properly articulate a Wheeler-Batson issue in the trial court and to preserve the matter for the appeal. Nothing of the sort occurred in this case.
Juror No. 10 was excused near the end of the proceedings on July 27, 2009. At the outset of the proceedings the next morning, on July 28, 2009, appellant began with some unfocused remarks about the fact that Juror No. 10 was now gone and that there appeared to be a lack of racial diversity. Appellant cited People v. Wheeler, supra, 22 Cal.3d 258 and stated that “my federal constitutional rights is [sic] being violated.”
The trial court interjected, helpfully, that “I understand what your argument is. You’re saying that the venire of the panel that was ordered up from the jury room is not representative of African Americans. The case law is quite clear the panel that’s called into the courtroom does not have to represent the racial diversity of the community. It’s the venire that has to reflect the racial diversity of the community, and I don’t know what the venire is like since we only got 30 jurors from the venire. [¶] So your request or your motion to dismiss or to discharge this jury panel is denied.”
The court was right on both counts. It has been held that two consecutive jury panels are an inadequate sample to make out a prima facie case of systematic exclusion (People v. Morales (1989) 48 Cal.3d 527, 548), which means that one panel is certainly inadequate. In People v. Burgener (2003) 29 Cal.4th 833, 859, involving African-Americans in Los Angeles County, the reference was to the venire.
Three things were clear at this point. First, the trial court correctly articulated for appellant the issue that appellant was trying to formulate. Second, it was now up to appellant to come up with the figures that would show a disparity between the population of the county and the venire. Third, the court denied this Wheeler-Batson motion.
“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that 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) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v. Missouri (1979) 439 U.S. 357, 364.)
It is of course perfectly obvious that appellant, who barely understood the issue, was completely unprepared to come up with the facts and figures to make out a prima facie case of systematic exclusion.
After appellant had demonstrated that he did not know what a venire is, the court explained, adding that the venire could be as much as 500 names. The court then stated: “No, we’re not going to do that. That’s a separate collateral issue that you would have to pursue outside of this jury selection setting.” This ended the matter.
When asked, appellant replied that “[t]he venire, like, a list -- like, what’s on the committee as far as is the choice, I guess.”
There is no doubt that the trial court ruled correctly in denying appellant’s Wheeler-Batson motion; appellant completely failed to respond to the second and third requirements of such a motion. (See fn. 4, ante.) The question is whether appellant, who was in pro. per., had to comply with all three requirements.
The answer to this question is emphatically in the affirmative. (See generally 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) § 259, pp. 399-401.) As the United States Supreme Court has put it: “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’” (Faretta v. California (1975) 422 U.S. 806, 834, fn. 46.) In other words, appellant must live with the consequences of his ill-advised decision to represent himself.
We do not agree with respondent that appellant forfeited his Wheeler-Batson claim because he failed to object to the prosecution challenge of Juror No. 10. While respondent is technically correct, the trial court dealt with the claim as if it had been raised in a timely fashion and we see no reason to disregard what the trial court did with this issue. We therefore agree with the statement in appellant’s reply brief that the claim was not forfeited. The fact remains, however, that there was a complete failure to meet the second and third requirements of a Wheeler-Batson motion, which left the trial court with no alternative other than to deny the motion.
2. It Was Not Error to Impeach Appellant with Three Prior Convictions
The trial court allowed the prosecution to impeach appellant, who took the stand, with three prior convictions for assault, battery and possession of cocaine for sale. Appellant contends that the assault and battery convictions are “ancient” in that they took place in 1993 and that the possession for sale conviction is even older since it was returned in 1990. He also contends that it was needless but prejudicial to admit three convictions; less than three would have served as well, at least according to appellant.
The trial court’s reasoned decision on the prior convictions was based on the factors that these convictions showed a willingness to do evil, that none of them were particularly inflammatory and that, absent these convictions, appellant would have a false aura of credibility.
Remoteness of the prior conviction is not a factor when the defendant has not led a blameless life since the conviction. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) In this case, appellant suffered felony convictions in 2000, 2005 and 2008.
“No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.” (People v. Beagle (1972) 6 Cal.3d 441, 453.) This consideration is certainly true of appellant. Given appellant’s criminal record, it would have been a mistake not to permit the prosecution to impeach him with a partial record of his felony convictions.
Because appellant’s record extended to no less than seven prior felony convictions, the court exercised leniency in limiting the prosecution to only three convictions. Given appellant’s record, it would have been misleading to limit the prosecution to one or two convictions. Thus, the decision to impeach him with three convictions was eminently within the ambit of the court’s discretion.
We agree with the trial court that the prior convictions used to impeach appellant were not inflammatory.
Finally, the jury was instructed that they were to consider the prior convictions only on the issue of appellant’s credibility.
We conclude that it was not error to allow the prosecution to impeach appellant with three prior felony convictions.
3. The Claim of Cumulative Error Is Without Merit
Appellant raises a number of lesser errors in contending that their cumulative effect was prejudicial. We do not agree that the matters appellant complains about constituted error.
Appellant was unable to call his parole officer as a witness because the court quashed the subpoena, which appellant contends was an erroneous order. But the parole officer would have testified only that appellant sold purses for a living, which is completely irrelevant. The court also denied appellant’s request for an expert who would have testified about a CVS security video. Given that there was no evidence that the video had been tampered with and that there was no doubt that appellant had been in the CVS store, there would have been no point to the expert’s testimony.
Appellant also claims that he was prejudiced by the denial on May 11, 2009, of his request for a continuance because his request was based on the need for further investigation. The information in this case was filed on January 22, 2009, and the trial commenced on July 27, 2009. In practical fact, the May 11, 2009 request turns out to have been granted since the trial did not start for another two-plus months. Be that as it may, the matter of continuances is consigned to the discretion of the trial court. (People v. Samayoa (1997) 15 Cal.4th 795, 840.) We see no abuse of discretion in this record (the court did grant appellant a continuance in April 2009), which demonstrates that appellant had ample time to prepare his case for trial.
Finally, appellant claims that there is an exculpatory Wal-Mart security video, which the prosecution failed to produce. We fail to see the relevance of a Wal-Mart security video as appellant testified that he was in the Wal-Mart store and used the traveler’s checks to purchase various items, a matter confirmed by multiple witnesses.
Appellant’s remaining claims are insignificant and specious and do not merit comment.
4. We Affirm the Order to Pay Restitution
Appellant claims that he was denied a meaningful opportunity to contest the amount of restitution awarded at his sentencing.
Appellant appears to have missed the point that the entire trial was in large part about how much he stole from CVS and Wal-Mart.
As respondent points out, appellant was on notice throughout that CVS and Wal-Mart would seek restitution. Notably, appellant did not contest at trial the amounts that the prosecution claimed he stole from these businesses.
When, during the sentencing hearing, the court asked appellant whether he agreed that the sums stolen had been proven at trial, appellant replied with an insolent remark instead of requesting a hearing. While a defendant has the right to a hearing if he disputes the amount of restitution (Pen. Code, § 1202.4, subd. (f)(1)), appellant did not request a hearing but instead chose to insult the court. It is now too late to revisit this decision.
“Hell, no. I object to all this and you and all you fakes.”
The restitution order was in all respects appropriate. “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Pen. Code, § 1202.4, subd. (a)(1).) “Requiring the defendant to make complete reparation to her victims for the harm done to them is more likely to make an impression on the defendant than simply imposing a statutory fine.” (People v. Ortiz (1997) 53 Cal.App.4th 791, 796.)
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., GRIMES, J.