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Court of Appeal, First District, Division 5, California.

The PEOPLE, Plaintiff/Respondent, v. Larry GALBERT, Defendant/Appellant.

No. A064486.

Decided: January 30, 1995

Stan Helfman, San Francisco, CA, for People of the State of CA. First Dist. Appellate Project, San Francisco, CA, for Julie Schumer, Orinda, CA, for Larry Galbert.

Larry Galbert appeals from a judgment entered after a jury convicted him of attempted premeditated murder and attempted robbery.   He claims his conviction must be reversed because (1) the prosecutor committed Wheeler error, (2) his trial counsel was constitutionally ineffective, and (3) the court erred when sentencing him.   We reject these arguments and affirm the judgment in every respect.


Appellant was convicted of attempting to rob and murder Arthur Seals.   Appellant and Seals first became acquainted in junior high school.   They then lost touch for several years;  and during that time, Seals opened an automobile detailing shop on East 14th Street in Oakland.

In early August 1992, Seals ran into appellant at a local gas station.   Appellant asked Seals for money, but Seals refused.

About two weeks later, on August 18, Seals was closing the detailing shop when appellant drove up in a 1970's model car and called to Seals saying, “Come here, Art, check it out.”   When Seals walked to the car, a passenger who was with appellant in the car got out and went to a nearby pay phone.   As Seals started to get into the car, appellant pointed a gun at him and said, “Scoot over, motherfucker, I'm going to rob and kill your motherfucking ass.”   Seals started to plead with appellant, but the passenger returned and told Seals to “scoot [his] motherfucking ass over.”   The passenger, who also had a gun, then told appellant, “Larry, pop, pop this fool, pop this fool.”   Seals started to wrestle with the passenger, but appellant shot Seals in the back.   Fortunately, Seals was still able to get away;  but as he fled, appellant and the passenger fired more shots, one of which struck Seals in the leg.

Based on these facts, an information was filed charging appellant with several offenses and enhancements including attempted premeditated murder (Pen.Code,1 §§ 187, 664) and attempted robbery (§ 211).   After a jury convicted appellant on all charges, the court sentenced him to life plus 15 years in prison.   This appeal followed.


A. Alleged Wheeler Error

The prosecutor in this case used three of his peremptory challenges to excuse young Black women from the jury.   After the third challenge, the defense objected and alleged the prosecutor was using his challenges to remove jurors because of their race in violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler ).   The court asked defense counsel to explain his objection and, after listening to his reasoning, found the defense had stated a prima facie case.   Accordingly, the court asked the prosecutor to explain his challenges.   In response, the prosecutor (who himself was Black) explained each of his challenges in some detail.   The court was satisfied with the prosecutor's explanations and denied the Wheeler motion.   The jury ultimately selected included one Black juror.   Appellant now challenges the court's ruling, claiming the prosecutor violated Wheeler when he eliminated the jurors in question.

The rules which govern this type of argument are settled.   The use of peremptory challenges to remove prospective jurors solely because of their race violates both the state and federal constitutions.  (Wheeler, supra, 22 Cal.3d at pp. 276-277;  Batson v. Kentucky (1986) 476 U.S. 79, 89.)   If a party believes his opponent is using his peremptory challenges improperly, he must raise the issue in a timely fashion and make a prima facie case of discrimination to the satisfaction of the court.  (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154.)   If the court finds the defendant has established a prima facie case, the burden shifts to the prosecution to provide a race neutral explanation for the peremptory challenges.  (People v. Fuentes (1991) 54 Cal.3d 707, 714.)   The prosecutor's explanation need not be sufficient to justify a challenge for cause.  (People v. Johnson (1989) 47 Cal.3d 1194, 1216 (Johnson ).)   Furthermore, jurors may be excused based on “ ‘hunches' ” or even “ ‘arbitrary’ ” factors so long as the reasons are not based on impermissible group bias.  (People v. Turner (1994) 8 Cal.4th 137, 165 (Turner );  see also People v. Hall (1983) 35 Cal.3d 161, 170.)   The trial court must determine whether the prosecutor's explanations are valid, and a reviewing court must give the trial court's ruling great deference on appeal.  (Turner, supra, 8 Cal.4th at p. 165.)

Here, since the court ruled the defense had made a prima facie case of discrimination, the issue on appeal is whether the prosecution's explanations for his challenges were adequate.   They clearly were.   First, the prosecutor said he excused the jurors because they were young.   As he explained, “I think the longer you live, the more life experience you get.”   This was permissible.  (See People v. Henderson (1990) 225 Cal.App.3d 1129, 1153, disapproved on another point in People v. Davis (1994) 7 Cal.4th 797, 810;  see also People v. Sims (1993) 5 Cal.4th 405, 430.)

Second, the prosecutor said he excused one of the jurors, Ms. H., because of the “incredible” statements she made during voir dire.   Among other things, Ms. H. said she had “almost 10” friends who had died from gunshot wounds in Oakland, and that 7 of them had died the previous year.   Despite this avowed exposure to a shocking degree of carnage, Ms. H. said she could fairly judge the testimony in the present case which involved yet another gun attack.   The prosecutor could reasonably doubt the veracity of this statement, and Ms. H.'s professed impartiality.

Third, the prosecutor eliminated the three jurors because of their appearance and conduct in court.   As he explained, “I think that people tell you a lot about what they are, beyond what they say, by the way they dress and how they come into a courtroom and how they look.”   Using that standard, the prosecutor found all three jurors lacking in some respect.   The prosecutor excused the first juror, Ms. H., because of her extreme appearance.  “[W]hen I see a young lady like Ms. [H.], who has an earring through her nose and who has long braided hair, that is a signal to me that this is a person that, in her attire and manner-personally, as a black person, I've always regarded braided hair as somewhat radical, and I am very uncomfortable in a posture in a jury trying a case to someone whose appearance I find, not distasteful, but I would say inappropriate for these proceedings.”   The prosecutor's objections to the second juror, Ms. L., were similar:  “Ms. [L.] also is a person, a younger person․  [¶] ․ She's grossly overweight․  She's got on a little tiny skirt that doesn't fit her and she's got on a sweat shirt․  She looked like someone who gave very little attention to how she came into this courtroom and how she looked.  [¶] ․ [¶] ․ [T]he problem with that is a person who comes into a courtroom looking like that, with a skirt that's hiked halfway up her thighs when she sits, when she stands, and then when she sits you can see everything God gave the woman, I'm very uncomfortable taking a case of this seriousness to someone whose attire is so sloppy and inappropriate for the kind of proceedings that we're involved in.”   The prosecutor excused the third juror, Ms. A., for related reasons:  “Braids, obesity, size, manner of dress.  [¶] Ms. [A.] had very large, very thick braids.   She had a dark blue pant suit on with very large gold-plated buttons and very long dangling earrings, which are just to me signs of, I won't say ostentatious dress because in other circumstances they may be important, but to me the way a person comes into a courtroom tells me a lot about what I may have to deal with down the line.  [¶] And a person who is that young, who is that big, who dresses in such a manner to draw that kind of attention to herself, I'm just very uncomfortable in bringing a case to her whether she's white or ․ black or whatever.”

In Johnson, supra, 47 Cal.3d at page 1218, our Supreme Court ruled that a prosecutor, who had used his peremptory challenge to strike a juror who was “overweight and poorly groomed, indicating that she might not have been in the mainstream of people's thinking,” had not violated Wheeler.   The same considerations motivated the prosecutor here.

In sum, the prosecutor stated several reasons, unrelated to race, which justified his challenge to the jurors in question.   The trial judge, who had the opportunity to view the situation first hand, was satisfied with the prosecutor's explanations and found he had not used his challenges improperly.   We see no reason to doubt that conclusion on appeal.

B. Effectiveness of Counsel

Appellant claims his counsel was constitutionally ineffective because he failed to make objections at two points during trial.   The first occurred during the prosecutor's examination of Curtis Sasto, the People's fingerprint expert.   Sasto testified that, during the early stages of the investigation, he was asked to compare prints which were found in the car used in the crime with appellant's known prints.   Sasto said he accomplished this by obtaining appellant's prints from the “Consolidated Criminal Records section for Alameda County” (Consolidated Criminal Records).   The second incident occurred during final argument when the prosecutor summarized Sasto's testimony as follows:  “[W]hen he gets [the prints taken from the car], he goes into police files ․ and pulls out these mater [sic] cards and certifies them.   These are the prints of Larry Galbert.   These were in police custody before this happended.”  (italics added.)   Appellant now contends trial counsel should have objected to Sasto's response and the prosecutor's argument because they implied that he had prior contacts with the law and, thus, constituted improper character evidence within the meaning of Evidence Code section 1101.

We are unpersuaded.   To establish ineffective assistance, a defendant must show counsel's representation fell below objective standards of reasonableness, and that there is a reasonable probability the result would have been more favorable but for counsel's errors.  (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)   Neither of those requirements has been met here.   Counsel simply may have chosen not to object on either occasion because neither the statement nor the argument was damaging.   Appellant assumes that when Sasto said he obtained appellant's prints from the “Consolidated Criminal Records” the jurors would imply appellant had been convicted of a crime previously.   However, it is just as likely that the jurors would assume appellant's prints were in the “Consolidated Criminal Records” because appellant was the victim of a prior crime.   Furthermore, to the extent it was possible to drawn the conclusion appellant suggests, counsel may have elected to forego an objection to avoid drawing attention to the issue.   Given the tenuous link between Sasto's statement and the negative implication, we cannot conclude such conduct would be objectively unreasonable.

Furthermore, and perhaps more to the point, these “errors” could not have been prejudicial because, to put it bluntly, this was not a close case.   The victim, Seals, had known appellant for many years.   He positively identified appellant as the culprit.   Seals's version of the crime was largely corroborated by one of Seals's employees who was present at the detailing shop that day.   Appellant's prints were found on the abandoned car.   Given this evidence, counsel's failings, if any, were inconsequential.   Appellant's claim of ineffective assistance must fail.

C. Sentencing

The court here imposed separate sentences for appellant's attempted murder and attempted robbery convictions.   Appellant now claims this was error because the separate sentences violated section 654.2  We disagree.

Section 654 precludes multiple punishment for a single course of conduct which violates more than one statute.   The key to determining the applicability of the section is the defendant's objective and intent.  “If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.”  (People v. Perez (1979) 23 Cal.3d 545, 551.)   On the other hand, if the defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.”  (Ibid.)  The applicability of section 654 is a question of fact which must be determined by the trial court.  (People v. Evers (1992) 10 Cal.App.4th 588, 604.)   The court's resolution of that issue will not be reversed on appeal if it is supported by the evidence presented at trial.  (Ibid.)

Here, the court sentenced appellant for both crimes because appellant had expressed two separate criminal objectives.   That conclusion was amply supported by the evidence at trial.   Indeed, Seals testified that when he got into appellant's car, appellant said “Scoot over, motherfucker, I'm going to rob and kill your motherfucking ass.”  (Italics added.)   Appellant then tried to do just that.   Clearly appellant had two objectives:  to rob and to kill.   The court did not err by sentencing appellant on both crimes.


The judgment is affirmed.


FN1. Unless otherwise indicated, all subsequent statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all subsequent statutory references are to the Penal Code.

2.   Section 654 provides in part, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”

PETERSON, Presiding Justice.

KING and HANNING, JJ., concur.