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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Ivory Wayne JOHNSON, Defendant and Appellant.

Cr. 30366.

Decided: October 20, 1977

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Martin Stein and Cheryl A. Lutz, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Theodora P. Berger and John A. Saurenman, Deputy Attys. Gen., for plaintiff and respondent.

Convicted after a jury trial of rape by threat of great bodily harm and first degree robbery, defendant Ivory Wayne Johnson contends on this appeal: (1) he was denied equal protection of the law by the prosecution's use of peremptory challenges motivated by a desire to exclude blacks from the jury because of racial epithets used by prosecution witnesses that might be disclosed in the testimony; (2) he was denied a fair trial by the intentional destruction of unidentifiable partial fingerprint “lifts”; and (3) the trial court violated Penal Code section 654 in imposing concurrent sentences for rape and robbery.

Noting that we are bound by Swain v. Alabama (1965) 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 as construed in People v. Anderson (1975) 44 Cal.App.3d 723, 118 Cal.Rptr. 918 and are not approaching the matter anew, we conclude that Johnson was not denied equal protection by the prosecution's use of peremptory challenges. We conclude, also, that the record does not support Johnson's claim of denial of due process of law by the destruction of evidence and that the trial court properly imposed sentence. Accordingly, we affirm the judgment.

Facts of Offense

Mrs. Janice J. was first robbed of $139 by a black man who forced his way into her apartment threatening Mrs. J. with a knife, then raped by him, and, after being raped, also robbed of two pistols and jewelry. Mrs. J. identified Johnson as the rapist-robber. Her identification was corroborated by testimony of other witnesses who, alerted by her screams, saw a black man leave Mrs. J.‘s apartment building and enter a Chevrolet the license plate of which showed that it was registered to Johnson's wife. Johnson's fingerprints were found on the car and a knife was discovered on the front seat. Medical examination of Mrs. J. corroborated the fact of rape.

Peremptory Challenges

Johnson was tried by a jury. Voir dire of prospective jurors began December 8, 1976. The court recessed for the day before a jury was selected. When court reconvened on December 9, a prospective juror, Arthur C. Jarrett, was not present. Defense counsel refused to join a stipulation excusing Jarrett, giving as his reason the fact that Jarrett was one of only two blacks included in the group of prospective jurors. Noting that the other black prospective juror had already been the subject of a peremptory challenge by the prosecution, defense counsel requested that the record reflect systematic exclusion of blacks from the jury unless there was a nonracial “rationale” for the prosecution's conduct.

The prosecutor replied that he intended to exercise a peremptory challenge to Jarrett if Jarrett were called as a juror, and intended to use his peremptory challenges against any “black juror . . . called to sit in this case.”

Defense counsel moved for a mistrial, asserting systematic exclusion of blacks from the Johnson jury. The prosecutor explained that he was using peremptory challenges to remove black jurors because the arrest reports and crime reports indicated that prosecution witnesses had used a racial pejorative in reference to Johnson so that the prosecutor believed that blacks could not view the evidence objectively.

The trial court denied the motion for mistrial. Testimony of one of the witnesses connecting Johnson with the Chevrolet included a racial epithet used by the witness in identifying to another the person leaving the apartment and using the car.

Johnson contends in this appeal that the prosecution's use of peremptory challenges to remove all blacks from the jury panel deprived him of equal protection of the law guaranteed by the United States (14th Amend.) and California (art. 1, s 7) Constitutions.

“T)he Constitution forbids . . . systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels . . . .” (Apodaca v. Oregon (1972) 406 U.S. 404, 413, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184.) However, there is “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition . . . .” (Taylor v. Louisiana (1975) 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690.) The constitutional guarantee protects against only systematic exclusion of distinctive groups from jury service. (Apodaca v. Oregon, supra, 406 U.S. at p. 413, 92 S.Ct. 1628; Taylor v. Louisiana, supra, 419 U.S. at p. 538, 95 S.Ct. 692.)

The United States Supreme Court considered the prohibition against systematic exclusion in the context of the prosecution's use of peremptory challenges in Swain v. Alabama, supra, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. There Swain, who had been convicted of rape and sentenced to death by an Alabama court, argued that Alabama's process of selection of prospective jurors and the use by the prosecution of the state's procedure for “striking” jurors without cause, both generally and in the particular case, denied him his equal protection right. The high court first concluded that the Alabama process of selection of prospective jurors was not unconstitutionally discriminatory (380 U.S. at p. 209, 85 S.Ct. 824) and that, despite a record which showed no jury in the county of trial had ever included a black, systematic exclusion by the state was not shown for failure to refute the proposition that blacks were often excluded by the defense (380 U.S. at p. 226, 85 S.Ct. 824). It then considered the matter of the prosecution's use of the “striking” procedure in the case before it.

The Alabama procedure encompassed a jury venire of about 100 in capital cases. The original venire was generally reduced by excuses and challenges for cause to approximately 75 persons. The defense was permitted to “strike” members from the venire alternatively with the prosecution until 12 jurors were left. The only black members of the Swain venire were removed by the prosecution in the “striking process.” (380 U.S. at p. 210, 85 S.Ct. 824.)

The Swain court traces the origins of the peremptory challenge in the early common law of England (380 U.S. at pp. 212-213, 85 S.Ct. 824), and the incorporation of the concept into the law of the United States (380 U.S. at pp. 213-217, 85 S.Ct. 824). It states: “The function of the (peremptory) challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise.” (380 U.S. at p. 219, 85 S.Ct. at p. 835.) The high court declares that the process is designed to guarantee “ ‘not only freedom from any bias against the accused, but also from any prejudice against his prosecution.’ ” (380 U.S. at p. 220, 85 S.Ct. at p. 835.) The challenge is “frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be.” (380 U.S. at pp. 220-221, 85 S.Ct. at p. 836.)

The Swain court concludes: “With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.” (380 U.S. at p. 221, 85 S.Ct. at p. 836.) In sum, the Supreme Court of the United States has declared that while equal protection of the law is denied by systematic exclusion of an identifiable group from jury service, in general, there is no intrusion upon constitutional rights by the exclusion of an identifiable group from a particular jury by the use of peremptory challenges. The high court treats racial motivation for the peremptory challenges as irrelevant.

California cases have followed the Swain principle where racial motivation was not expressed upon the record although conceivably inferable from the manner in which peremptory challenges were used by the prosecution. (People v. Allums (1975) 47 Cal.App.3d 654, 664, 121 Cal.Rptr. 62, cert. den. 423 U.S. 934, 96 S.Ct. 291, 46 L.Ed.2d 266, sub nom., Allums et al. v. California ; In re Wells (1971) 20 Cal.App.3d 640, 648, 98 Cal.Rptr. 1; Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 619-622, 78 Cal.Rptr. 348.)

Some Court of Appeal decisions, while rejecting a contention of denial of equal protection on the basis that the use of peremptory challenges to exclude blacks from a jury in a particular case fails to establish systematic racial exclusion, contain language that proof that the persons had been deliberately excluded from the jury on racial grounds could suffice. (See e. g., People v. Hayes (1969) 276 Cal.App.2d 528, 533, 80 Cal.Rptr. 893, overruled on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32, 120 Cal.Rptr. 377, 533 P.2d 1017.) However, when squarely faced with the question of systematic exclusion of blacks from a particular jury, the Court of Appeal followed Swain to find no denial of equal protection. (People v. Anderson, supra, 44 Cal.App.3d 723, 726-727, 118 Cal.Rptr. 918.)

Unquestionably, the prosecutor who exercises peremptory challenges may be engaging in stereotyping which is either a conscious or unconscious manifestation of bigotry. However, Swain and the California cases that have followed it have inherently balanced the worth of the peremptory challenge to the adversary system of criminal adjudication against any interest in prevention of the exercise of stereotyping by state officers engaged in the process. The United States Supreme Court weighs the balance in favor of the value of the peremptory challenge to the adversary system. It is not our place to strike a different balance.

Accordingly, we conclude that the prosecution's use of peremptory challenges for the declared purpose of excluding blacks from the Johnson jury because the prosecutor feared that the evidence might prejudice them against his cause did not deny Johnson equal protection of the law.


In the course of investigating the rape and robbery of Mrs. J., the police examined for fingerprints her jewelry box, the dresser on which the jewelry box sat, the back doorknob of Mrs. J.‘s apartment, a bag of ammunition found in the apartment, and a .22 caliber pistol taken from Mrs. J. and discarded by her assailant as he fled from the Chevrolet when pursued by the police. Partial prints were “lifted” from the items. Concluding that the “lifts” did not disclose ascertainable fingerprints, the police destroyed them. The pistol was wiped clean after it was “dusted” for fingerprints.

Contending that the destruction of the “lifts” had denied him evidence which might result in his exoneration, Johnson moved the trial court to dismiss the charges against him. The motion was denied.

On appeal, Johnson claims that the intentional but admittedly nonmalicious destruction of the “lifts” by the police denied him a fair trial. The contention fails.

Nonmalicious destruction of evidence by the police is material only when the destroyed items could significantly have affected the outcome of the trial. (People v. Taylor (1977) 67 Cal.App.3d 403, 411, 136 Cal.Rptr. 640, failure to produce field identification card; People v. Harris (1976) 62 Cal.App.3d 859, 864-865, 133 Cal.Rptr. 352, destruction of cap worn by suspect; People v. Vera (1976) 62 Cal.App.3d 293, 300, 132 Cal.Rptr. 817, failure to preserve items from which latent fingerprints were “lifted”; People v. James (1976) 56 Cal.App.3d 876, 891, 128 Cal.Rptr. 733, destruction of wallet used by a codefendant.)

Here the partial prints, unidentifiable as to the maker, could not significantly have affected the outcome of the trial. Johnson had the benefit of evidence that no fingerprints identifiable as his were found on the items. The fact that someone else may also have touched the items is essentially irrelevant absent proof that the someone was not a person who would have touched them in normal use. Johnson speculates that the prints may in fact not have been valueless for identification. A substantially identical contention was rejected by the Court of Appeal in People v. Vera, supra, 62 Cal.App.3d 293, 300, 132 Cal.Rptr. 817.)

We thus conclude that the record does not support Johnson's contention of denial of fair trial through the destruction of evidence.

Penal Code Section 654

Relying upon People v. Wein (1977) 69 Cal.App.3d 79, 93-94, 137 Cal.Rptr. 814, Johnson claims that the rape and robbery constituted a single indivisible course of conduct so that Penal Code section 654 precludes execution of punishment for both offenses. The contention lacks merit.

Section 654 precludes multiple punishment only when multiple crimes, of which the defendant is convicted, were committed in a single indivisible course of conduct. “ ‘(D)ivisibility of a course of conduct depends upon the intent and objective of the actor . . . .’ ” (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 662, 558 P.2d 552, 560.) Here the evidence sustains the trial court's determination that Johnson first entered Mrs. J.‘s apartment with the intention of robbing her of her money and that his objective to rape her was conceived after he had taken the cash.

People v. Wein, supra, 69 Cal.App.3d 79, 137 Cal.Rptr. 814, upon which Johnson relies for a contrary result, does not support his position. There the defendant was sentenced on convictions of burglary, robbery, and oral copulation. The Court of Appeal determined that under the facts there present the objectives of the substantive crimes of robbery and forcible oral copulation could not be separated from the specific intent element of the burglary, the crime carrying the greater punishment. Here no charge of burglary is involved.


The judgment is affirmed.

THOMPSON, Associate Justice.

LILLIE, Acting P. J., and HANSON, J., concur.

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