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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee Roger ALEXANDER, Defendant and Appellant.


Decided: August 15, 1984

Carol Strickman, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Lee Roger Alexander appeals from a judgment of imprisonment rendered after a jury found him guilty of robbery (Pen.Code, § 211),2 attempted robbery (§§ 211, 664) and assault with a deadly weapon (§ 245, subd. (a)), and found the allegations of firearm use (§§ 1203.06, 12022.5) to be true.   He asserts Wheeler error,3 Hitch error,4 instructional error, insufficiency of the evidence, and prosecutorial misconduct.


The charges against appellant arose out of the robbery on November 24, 1978,5 of the 7–11 Store on Bancroft in Oakland.   At approximately 10:00 or 10:30 a.m., a man entered the store and proceeded to the counter where employees Alice Staton and Norma Ball were standing.   Ball identified appellant as the man.   Appellant had a jacket over his arm, which he pulled aside to reveal a shotgun.   Looking at Staton, he said, “Give me all of your money.”   Staton opened the cash register drawer and started to remove the bills.   Appellant stuck his hand in the drawer and took the ones.   He next turned the shotgun on Ball and demanded the money from the second register.   Appellant kept the weapon trained on Ball as she attempted to open the register.   When appellant saw that the drawer was empty, he ordered the two women into the back of the store.

A couple of days after the robbery Ball saw appellant walk by the store.   A few days later he entered the store.   When Staton saw appellant, she ran to the back of the store.   Ball, although frightened, waited on appellant while he purchased a two-cent candy.   Appellant returned to the store two or three times more.   Ball also saw him on the street one evening as she was walking home from work.

Donald Elliott, owner of the 7–11, learned of the robbery when Staton and Ball ran to the back room and told him about it.   He called police.   Officer William Dorsey responded to the scene.   Elliott showed Dorsey a videotape of the crime as it occurred.   Elliott could see a black man holding something that was covered up.   Dorsey could tell only that the tape depicted a black man holding a shotgun or a rifle.   Dorsey did not take the tape with him after completing a robbery report because it was “kind of fuzzy or hazy.   You couldn't see it clearly.”

Elliott first saw appellant a couple of days after the robbery when he (appellant) was in front of the store.   His attention was attracted to appellant because Staton and Ball ran to the back of the store.   When appellant entered the store a few days later, Staton and Ball again ran to the back.   Elliott called police a couple of times after that, but they were unable to apprehend appellant.   On December 4, Elliott again called police when he saw appellant in the store.   Responding to the call, Officer Joseph Aguirre observed appellant walking toward a vacant lot near 82nd Avenue and MacArthur Boulevard, about eight blocks away from the 7–11 store.   When Aguirre got out of his patrol car and told appellant that he wanted to talk to him, appellant immediately raised his hands up in the air.

Elliott and Ball were brought to the scene.   Elliott identified appellant as the man he had called about.   Ball positively identified appellant as the robber.

Appellant presented a mistaken identity and an alibi defense.   His father testified that the morning of the offense he had gone with appellant to a nearby liquor store to buy some beer and had then returned with him to appellant's brother's home, where the two parted company at about 9:00 a.m.   Appellant's brother Calvin, and Calvin's live-in girlfriend, Robin Jones, testified that appellant remained at Calvin's house until around noon, when he left the house, and that he returned later that afternoon (at about 1:00 or 1:30 according to Robin, at 3:00 according to Calvin).


I. Peremptory Jury Challenges

During jury voir dire, after the prosecutor exercised his eighth peremptory challenge, appellant moved for a mistrial, arguing that there had been a systematic exclusion of black persons from the jury in violation of the rule in People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.   Defense counsel noted that of the prosecutor's eight challenges, four had been against blacks—two women and two men, that appellant is black, and that there remained on the jury just one black person.   The prosecutor did not explain his challenges, but argued that a prima facie case of systematic exclusion had not been demonstrated.   He observed that appellant had excluded a black person from the jury and that the court also had excluded a black person.   The court ruled that a prima facie case of systematic exclusion had not been shown, but that the prosecutor would have to explain his reasons if he excluded another black.6

 People v. Wheeler established that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community.  (22 Cal.3d at pp. 276–277, 148 Cal.Rptr. 890, 583 P.2d 748.)   The presumption is that the prosecutor's use of peremptory challenges is on a constitutionally permissible ground.  (Id., at p. 278, 148 Cal.Rptr. 890, 583 P.2d 748.)   To overcome this presumption the defendant must establish a prima facie case that the prosecutor has challenged jurors on the basis of group bias alone.  (Id., at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   To this end, he must make a complete record of the circumstances, he must establish that the persons excluded are members of a cognizable group, and “he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.”  (Ibid.)

 A defendant may seek to demonstrate challenge for group bias by showing, e.g., (1) that the prosecutor has struck all or most of the members of the identified group from the venire;  or (2) that he has used a disproportionate number of his peremptory challenges against members of the group;  or (3) that the jurors in question have only their group identification in common and that they otherwise are as heterogenous as the community as a whole.  (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748;  People v. Rousseau (1982) 129 Cal.App.3d 526, 536, 179 Cal.Rptr. 892.)   This showing may be supplemented when appropriate by such additional circumstances as the prosecutor's failure to engage the excluded jurors in more than desultory voir dire or to ask them any questions at all.   (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)

 On presentation of the defendant's evidence the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.  (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)   Although such a ruling “ ‘requires trial judges to make difficult and often close judgments' ” (ibid.), the Wheeler court expressed confidence in the ability of trial judges, familiar with local conditions and prosecutors, and “well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience,” to distinguish a true case of group discrimination from a spurious claim.  (Ibid.;  see People v. Randle (1982) 130 Cal.App.3d 286, 295, 181 Cal.Rptr. 745.)

In the present case appellant's showing was that the prosecutor had used 50 percent of his challenges to exclude four of the five prospective black jurors—two women and two men.   Appellant contends that this showing was sufficient to require the prosecutor to justify his use of the peremptory challenges.   The record shows, however, that three of the four black jurors challenged by the prosecutor clearly were subject to challenge for specific bias.7  The question thus presented is whether the lack of an independent reason on the face of the record for the prosecutor's exclusion of one out of four members of a cognizable group, compels a reviewing court to conclude that the trial court abused its discretion in ruling that a prima facie case of systematic exclusion had not been made.

 In determining this question, we observe that there is a presumption that “a party exercising a peremptory challenge is doing so on a constitutionally permissible ground” (People v. Wheeler, supra, 22 Cal.3d at p. 278, 148 Cal.Rptr. 890, 583 P.2d 748), that not every indication of a potential bias will appear on the record (id., at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748), and that, as the Wheeler court recognized, the trial judge's position renders him peculiarly able to distinguish the true case of discrimination from the spurious claim of it (id., at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748).   In light of these principles, we cannot say on this record that the trial court's determination was an abuse of discretion.

 People v. Allen (1979) 23 Cal.3d 286, 152 Cal.Rptr. 454, 590 P.2d 30, and other cases relied on by appellant, are factually distinguishable because in none of the cases did the record show potential specific bias of any of the challenged jurors.  (See id., at p. 294, 152 Cal.Rptr. 454, 590 P.2d 30 [exclusion of all 14 prospective black jurors];  People v. Hall (1983) 35 Cal.3d 161, 168, 197 Cal.Rptr. 71, 672 P.2d 854 [5 of 8 peremptory challenges used to remove all black jurors];  People v. Fuller (1982) 136 Cal.App.3d 403, 417, 420, 186 Cal.Rptr. 283 [3 of 8 challenges used to exclude all 3 prospective black jurors];  People v. Randle, supra, 130 Cal.App.3d at p. 295, 181 Cal.Rptr. 745 [use of disproportionate number of peremptories to exclude all black members of venire].)  Rather, we view this case as more analogous to People v. Rousseau, supra, 129 Cal.App.3d 526, 179 Cal.Rptr. 892, where a panel of this court sustained the trial court's determination that a prima facie showing of systematic exclusion was not made by the defendant's statement that “ ‘there were only two blacks on the whole panel, and they were both challenged by the district attorney.’ ”  (Id., at pp. 536–537, 179 Cal.Rptr. 892.)

Appellant, however, relying on People v. Fuller, supra, asserts that a defendant meets his burden of showing a prima facie case of systematic exclusion if the record fails to show justification for any one of the questioned peremptory challenges.   While there is language in Fuller which could be construed to support appellant's position,8 the Fuller court in fact determined that there were no independent grounds to justify any of the prosecutor's challenges (136 Cal.App.3d at p. 423, 186 Cal.Rptr. 71).   Such language, therefore, is at most dictum, and we decline to follow it.   Accordingly, we hold that where, as here, the record shows independent grounds for the prosecutor's challenges to three of the four black jurors excluded from the jury, the trial court's determination that a prima facie case of impermissible discrimination had not been made, is not, as a matter of law, an abuse of discretion.   There was no Wheeler error.

II. Failure To Preserve Videotape.

At the time of appellant's trial in May, 1982, the videotape of the robbery could not be found.9  Relying on People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, appellant contends that the failure of Officer Dorsey to take possession of the videotape of the robbery violated his right to a fair trial.

In Hitch the Supreme Court held that the Fourteenth Amendment due process obligation of the state to disclose material evidence favorable to the defense (see Giglio v. United States (1972) 405 U.S. 150, 153–154, 92 S.Ct. 763, 765–766, 31 L.Ed.2d 104;  Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215;  People v. Rutherford (1975) 14 Cal.3d 399, 406, 121 Cal.Rptr. 261, 534 P.2d 1341) places on the state the correlative duty to undertake reasonable efforts to preserve such evidence in its possession.   (People v. Hitch, supra, 12 Cal.3d at p. 650, 117 Cal.Rptr. 9, 527 P.2d 361;  accord People v. Nation (1980) 26 Cal.3d 169, 175, 161 Cal.Rptr. 299, 604 P.2d 1051.)   In People v. Hogan (1982) 31 Cal.3d 815, 183 Cal.Rptr. 817, 647 P.2d 93, the court distinguished between the duty to preserve evidence once obtained and the duty to gather evidence:  “Hitch and Nation imposed a duty to preserve material evidence which the police had already obtained.   Neither case imposed a duty to obtain such evidence or to conduct any particular tests.  [Footnote omitted.]  [Citation.]  The police cannot be expected to ‘gather up everything which might eventually prove useful to the defense.’  [Citations.]”  (Id., at p. 851, 183 Cal.Rptr. 817, 647 P.2d 93.)

 We view the present case as involving not the failure to preserve evidence but rather the failure to gather and collect evidence.  (People v. McNeill (1980) 112 Cal.App.3d 330, 338, 169 Cal.Rptr. 313 [failure to take fingernail scrapings from victim];  see People v. Maese (1980) 105 Cal.App.3d 710, 720, 164 Cal.Rptr. 485 [failure to preserve possible fingerprints];  People v. Cooper (1979) 95 Cal.App.3d 844, 850, 157 Cal.Rptr. 348 [same].)  Once Officer Dorsey viewed the tape and determined that it was of no value to the investigation, he was not required to take custody of it on the off-chance that the tape might subsequently be deemed of value to the defense.  “[T]he law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused.”  (In re Koehne (1960) 54 Cal.2d 757, 759, 8 Cal.Rptr. 435, 356 P.2d 179;  see People v. Hogan, supra, 31 Cal.3d at p. 851, 183 Cal.Rptr. 817, 647 P.2d 93;  In re Martin (1962) 58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 374 P.2d 801;  People v. Watson (1977) 75 Cal.App.3d 384, 399, 142 Cal.Rptr. 134;  People v. Jenkins (1974) 40 Cal.App.3d 1054, 1056–1057, 115 Cal.Rptr. 622.)  “Due process is offended only when the authorities, by their actions or regulations, impose any material obstacle in the path of the accused or frustrate his reasonable efforts designed to produce probative evidence.”   (People v. Newsome (1982) 136 Cal.App.3d 992, 1006, 186 Cal.Rptr. 676 and cases cited.)   This is not such a case.   Officer Dorsey never had the tape and left the tape as he found it;  he noted its existence in his report and instructed the store owner neither to destroy nor to preserve it.

Moreover, even were we to view this case as involving the due process duty to preserve evidence, appellant could not prevail.   In California v. Trombetta (1984) 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 the Supreme Court stated:  “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.  [Fn. omitted.]  To meet this standard of constitutional materiality, ․ evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”  (Id., at p. 4747.)

 In this case the first condition of constitutional materiality—that the evidence possess an exculpatory value that was apparent before its destruction or loss—is not met.   The record shows that the sun shining directly through the store windows at the time of the robbery created a glare which made the tape unclear.   The parties who viewed the tape could discern only the general form of a black male holding a rifle.   The tape played no part in the investigation or prosecution of the offense, nor in the eyewitness' identification of appellant.10  (Cf. California v. Trombetta, supra, 467 U.S. 479, 104 S.Ct. 2528 [prosecution used results of destroyed test].)  In these circumstances there was nothing to indicate to the investigating or prosecuting authorities that the videotape might possess an exculpatory value to the defense.

Failure to preserve the tape was not a violation of due process.

III. Flight Instruction.11

IV. Prosecutorial Misconduct.12

V. Assault with a Deadly Weapon Conviction.13


The judgment of conviction on the count III assault with a deadly weapon charge is reversed.   In all other respects the judgment is affirmed.


2.   Unless otherwise indicated, all further statutory references are to the Penal Code.

3.   People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

4.   People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361.

5.   Appellant's trial was delayed by his section 1370 commitment to Atascadero from June 6, 1979, to December 12, 1979 and by numerous continuances thereafter.   Trial commenced on May 3, 1982.

6.   Appellant's jury ultimately had one black juror and a black alternate juror.   During trial, after all the evidence had been presented, but before arguments began, one of the jurors became ill and was unable to continue.   When the alternate did not appear, appellant personally waived his right to a jury of twelve persons and the remaining eleven jurors, including the black juror, decided the case.

7.   The four black jurors challenged by the prosecution were Juror R.W., Juror J., Juror B. and Juror G.W.   Juror R.W.'s step-brother had been charged with robbery three years before and her brother had recently been the victim of a drug related shooting.   Juror B.'s father had been tried for the attempted murder of his (Juror B.'s) mother.   Juror G.W.'s brother had been tried on a charge of being an accessory to murder and she acknowledged that it upset her to watch the District Attorney put on his evidence in that case.

8.   The relevant statement in Fuller is as follows:  “It is stated in Wheeler that:  ‘If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted.’  (22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748, italics added.)   This rule, as applicable to any challenged juror, is stated in Wheeler with reference to the second stage wherein the court has already found a prima facie case to have been established.   Logically, it would seem to apply to the first stage [prima facie stage] in order for the second stage [justification stage] rule to have any validity.”  (136 Cal.App.3d at p. 421, 186 Cal.Rptr. 71.)

9.   The record does not reveal when or how the tape was lost or destroyed, or even if it was destroyed.   The record shows only that Officer Dorsey did not take the tape with him, that there was no record of the police department ever having received the tape, and that Mr. Elliott, the store owner, did not recall giving the tape to police, but neither did he think that he still had the tape.

10.   Although appellant asserts that Ms. Ball testified that she could identify the robber from the videotape, the transcript of the hearing on appellant's Hitch motion shows that Ball testified that she could not recall viewing the tape, but that if she did view it, she was able to identify the robber from it.

11.   See footnote 1, ante.

12.   See footnote 1, ante.

13.   See footnote 1, ante.

PANELLI, Associate Justice.

CALDECOTT, J.,** concurs.POCHÉ, Acting P.J., concurs in the result.

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