PEOPLE v. HALL (1983)

Miguel Hall appeals from a judgment (probation order) after a jury found him guilty of assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)), and false imprisonment (Pen.Code, § 236).   We affirm the judgment.

Karen Johnson went to a party at the Galleria, a “designer showcase.”   During the evening she visited the showrooms on the various floors of the building.   While she was on the second floor, appellant approached her.   He was wearing a security guard's uniform.   He told her that she should leave because the area was closed;  she followed him to a freight elevator, thinking that the other elevators had been shut off.   Appellant then grabbed her, tried to drag her into a room and began to strangle her until she lost consciousness.   During this time Johnson wet her pants out of fear.   The urine stained her clothes and left a puddle on the floor.   Johnson came to;  appellant began to touch and fondle her.   He eventually released Johnson and they sat down on a foot locker outside the room.   Johnson walked back to the main floor alone and related the incident to the coat checker and to the bar manager, Tom Santos.

Santos and Johnson went to a phone booth nearby to call the police.   At this time appellant walked up to them and asked, “what's happening”;  Johnson ran inside a building nearby and stayed there until the police arrived.   Santos returned to the Galleria and found the room that Johnson had described to him.   He observed on the floor a puddle smelling of urine.

At trial, Whiteside, a technician employed at the Galleria who knew appellant, testified that he had noticed dust on the seat of appellant's pants shortly after the incident took place.   Francis Woo, a police criminalist, testified that he found traces of urine on the clothing Johnson was wearing that evening.

Appellant asserts that the trial court should have dismissed the action because the prosecution did not provide discovery of appellant's record of arrests and employment despite “numerous defense requests” during the trial now under review and a prior trial that resulted in jury disagreement.   Appellant claims that the prosecutor's failure to comply with these requests prevented him from preparing an adequate defense and placed him under duress not to testify.

The record does not support the contention that appellant properly sought discovery.   The transcript of the first trial has not been provided;  and the transcript of the second trial does not reflect any such requests.   The only indication that discovery was sought is a statement made to the court during the second trial:  “I have asked counsel consistently for discovery as to those events.   I have been denied discovery.”   After the mistrial, appellant moved to dismiss on the ground of failure to provide discovery.   The court denied the motion.   After the second trial appellant moved for a new trial, partly on the same ground of failure to provide discovery.   The court denied this motion also.

 The first issue is whether the prosecutor had a duty to provide appellant with the records he requested.   The right of discovery is not absolute.   Appellant was required to show that he could not obtain these records through his own efforts before he could compel them.  (Tyler v. Superior Court (1980) 102 Cal.App.3d 82, 87–88, 162 Cal.Rptr. 82;  Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537, 113 Cal.Rptr. 897, 522 P.2d 305;  Ballard v. Superior Court (1966) 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 410 P.2d 838.)

 Appellant made no such showing.   He moved to dismiss after the mistrial and moved for a new trial, after the second trial had resulted in verdicts against him, both times on the ground of failure to provide discovery.   However, the record does not establish that he moved to compel discovery during either trial.   The information concerning arrests and employment should have been easily obtainable because, assertedly, it had been used against him in his first trial.   The prosecutor points out that appellant could have subpoenaed the records but neglected that step.

 The second issue is whether any failure to provide discovery prejudiced the defense.   Appellant claims that he was precluded from preparing an adequate defense and from testifying.   He asserts that because of “this lack of freedom to choose to testify” he did not have a fair trial.   This argument is without merit.   First, appellant could have prepared an adequate defense even if he could not have obtained the records or was never able to obtain them, a fact that he does not assert.   He had already been cross-examined and impeached during the first trial.   He was thus aware of the prosecutor's strategy on cross-examination and there would have been no element of surprise in cross-examination during the second trial.

Second, appellant's contention that he was denied the freedom to choose to testify is unsupported.   Even if it is true that lack of access to the records was the sole inducement for appellant not to testify, the decision was a voluntary choice made after weighing the consequences.   The failure to provide discovery did not deny him any rights, and he was not deprived of a fair trial.

 Appellant contends that the prosecutor used peremptory challenges to exclude four black prospective jurors solely on racial grounds.   In support of this contention, appellant points to several factors:  (1) The prosecutor used four of his eight challenges against these four people, and sought to exclude a fifth black person for tardiness;  (2) their race was their only common characteristic;  (3) he never directly questioned them;  (4) the defendant was black and the victim was white;  (5) and the first trial of the defendant had ended in a mistrial because one black juror caused a hung jury.

Appellant contends that this use of peremptory challenges was unconstitutional (citing People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748).   In Wheeler, the prosecutor had excluded all prospective black jurors by using peremptory challenges.   The Supreme Court determined that the exclusions had been made solely on racial grounds and had deprived the defendants of the right to trial by an impartial jury drawn from a cross-section of the entire community.   The court made clear in Wheeler that what is unconstitutional is exclusion solely on the ground of group bias:  “[T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the ․ California Constitution.”  (People v. Wheeler, supra, 22 Cal.3d 258, 276–277, 148 Cal.Rptr. 890, 583 P.2d 748.)   The court stated that peremptory challenges are presumed constitutional, but that if “a prima facie case has been made to the contrary, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone [but] specific bias․”  (People v. Wheeler, supra, 22 Cal.3d 258, 278, 281–282, 148 Cal.Rptr. 890, 583 P.2d 748.)

Here defense counsel established a prima facie case that the challenges were unconstitutional.   The burden then shifted to the prosecutor to show that the challenges were made on grounds other than group bias.   The prosecutor explained to the court why he had excused each of the four persons:  “As to the four out of the eight people I would state the reason I excused them.   Miss Cotton, my confidential information indicated she has voted not guilty.   I will allow the Court to look at my records.   I will not allow counsel to look at every notation I have.   But where a person voted not guilty I have excused them;  Miss Jones, Mr. Schultz and Miss Cotton.

“I have another reason why I excused Miss Cotton which I will take in conjunction with Miss Simon.   Miss Simon indicated she had a son I believe to be approximately the same age as the Defendant.   I believe that the Defendant, at the last trial, I understand at one point he live[d] in Chicago, I can't be sure, I believe he has some contact with Texas either in the military or something like that.   Both Miss Cotton and Miss Simon said they were from Texas.   That went into my considerations also.

Miss Zetar, the other young lady, Juror No. 7, I excused her based on a conversation I had with a member of my office who brought her to my attention.   As Mr. Goodman indicated to me in a prior case he had with her she did not comport herself as he felt a juror should, based on the evidence that was presented.

As far as Mr. Robinson, I was watching Mr. Robinson, I wanted to leave Mr. Robinson on, frankly however I watched Mr. Robinson this morning and he segregated himself from the other members of the jury.   Furthermore, I watched him in the courtroom today.   There were light moments during the jury selection, however Mr. Robinson never cracked a smile.   I came to my personal feelings based on his reaction in this courtroom that he did not possess the sensitivities necessary to realistically look at the issues and decide the facts in this case because it's a crime involving sexual assault which is a crime of sensitivity.   For those reasons I have excused those names.”

The court found that the prosecutor's reasons were adequate and that there had been no “systematic exclusion of blacks.”   The evidence supports that finding.   The reasons the prosecutor gave are legitimate reasons of specific bias, and the determination made by the trial judge must be upheld.

Appellant argues that the trial court committed prejudicial error in not going “behind the reasons the prosecutor gave.”   This argument is also without merit.   The duty of the trial court was to exercise its judgment “to distinguish bona fide reasons ․ from sham excuses belatedly contrived to avoid admitting acts of group discrimination.”  (People v. Wheeler, supra, 22 Cal.3d 258, 282, 148 Cal.Rptr. 890, 583 P.2d 748.)   The court met this requirement.   It exercised its judgment, it found no systematic exclusion, and it explained its finding.   The evidence supports the conclusion of the court.   There was no error.¹

 Appellant testified in the first trial.   In the second trial, the court allowed the prosecutor, over objection, to use that testimony as an admission under Evidence Code section 1220.   Appellant contends that the evidence should have been excluded.   Statements given at a probation hearing are not admissible in a later proceeding against the declarant.  (People v. Coleman (1975) 13 Cal.3d 867, 889, 120 Cal.Rptr. 384, 533 P.2d 1024.)   The testimony of a probationer is important to assure fair revocation decisions.   However, such testimony may be incriminating to the declarant.   Therefore, he may be reluctant to speak out.   On the assumption that he will be more likely to testify if he knows that his testimony will not be used against him later, his statements are made inadmissible.

 Similarly, testimony given by a defendant in support of a motion to suppress illegally obtained evidence cannot later be used against him unless he makes no objection.  (Simmons v. United States (1968) 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247.   See also People v. Douglas (1977) 66 Cal.App.3d 998, 1003, 136 Cal.Rptr. 358 [the testimony can only be used to impeach but cannot come in as evidence].)  A defendant should not be forced to choose between testifying, thereby waiving his Fifth Amendment privilege against self-incrimination, and remaining silent, thereby waiving his Fourth Amendment right to have illegally obtained evidence suppressed.   In order to encourage a defendant to testify, the Simmons court held that the testimony would not be admissible against him in a later proceeding.

 Appellant urges that Coleman and Simmons should be extended to the situation of a defendant testifying in a trial, because he is also deterred by the possibility that this testimony will be admitted against him later.   This argument must be rejected;  the reasoning of Coleman and Simmons is inapplicable in the present context.   A defendant deciding whether or not to testify is simply weighing which option will be most advantageous to him.   The possibility that his testimony may be used against him if a mistrial is followed by retrial of the case can hardly be a consideration.   There is no deterrent comparable to that in a Coleman or Simmons situation, where an individual is being forced to choose one right over another.   There is thus no reason to exclude the testimony;  it does not unfairly deter the defendant from testifying.

No California case has examined whether use of a defendant's prior trial testimony in a subsequent proceeding against him violates his privilege against self-incrimination, but that argument has been widely rejected elsewhere.  (See for example United States v. Nell (5th Cir.1978) 570 F.2d 1251, 1259–1260 [a defendant's testimony at a former trial is admissible against him in a later proceeding if the testimony was not given in response to illegally obtained evidence];  State v. Stoneman (1977) 115 Ariz. 594, 597 [566 P.2d 1340, 1343] [any prior statement voluntarily made by the defendant, whether judicial or extrajudicial, may be used against him].)  These holdings are persuasive.

 Appellant requested that the judge instruct the jury on the sufficiency of circumstantial evidence.  (CALJIC No. 2.01.)   The judge refused because he considered the evidence presented by the prosecution primarily direct, not circumstantial.  Evidence Code section 410 defines direct evidence as that evidence which “directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.”   Eyewitness evidence is direct evidence.  (People v. Baldwin (1979) 97 Cal.App.3d 396, 401, 159 Cal.Rptr. 15;  People v. Thomas (1979) 87 Cal.App.3d 1014, 1020, 151 Cal.Rptr. 483.)   The requested instruction is unnecessary where the prosecution does not substantially rely on circumstantial evidence, or where the circumstantial evidence is only corroborative.   In People v. Flores (1981) 115 Cal.App.3d 67, 84, 171 Cal.Rptr. 365, four victims had identified the appellant and, as in this case, identification was the only issue.   The court held that the instruction was not required because the prosecution relied on the direct eyewitness testimony.   In People v. Butler (1980) 104 Cal.App.3d 868, 878, 162 Cal.Rptr. 913, the court held that there is no need to give the instruction even where the circumstantial evidence is strong, if the prosecution's case “substantially relied on direct rather than circumstantial evidence for proof of guilt.”   The direct evidence consisted of the victim's observation of the defendant during the attack, her identification of him and her description of his clothing.

 Here, as in Flores and Butler, the prosecution based its case primarily on direct evidence, in the form of the identification of appellant by Karen Johnson.   The prosecution did introduce some circumstantial evidence, including urine stains on Johnson's dress and on the floor where the attack took place, dust on the seat of appellant's pants, and the fact that appellant was on duty the night of the incident.   This evidence was only corroborative.   Therefore, the instruction on circumstantial evidence was unnecessary.

The judgment is affirmed.

I dissent.

In ruling that the prosecutor had given sufficient reason for the peremptory challenge to each of the five black venire persons, the trial judge explained that unless the prosecutor says “I'm going to kick all blacks off” there is no problem.¹  This is characterized in the majority opinion both as an exercise of judgment by the trial court and as an explanation of its finding.   It was neither.

Short of such a demonstration of prosecutorial bias and stupidity (e.g., “I'm going to kick all blacks off”), this trial judge will ask the prosecutor why he challenged all black persons and “so he gives me some reason he has in his file and even though I may think they are [fallacious] these are peremptory challenges and I can't go into his mind ․   I ma[y] not agree with him but let the Court upstairs that makes the laws do it in case of a conviction.   I am not going to do it at this level.”

The majority opinion treats these repeated misstatements of the law as “colloquial”.   So far as I can determine colloquial constitutional error denying an accused his right to a representative cross-section of the community remains constitutional error in any language.

Giving the trial judge the benefit of the most charitable view of his action he demonstrated a lack of any understanding of the command of the Wheeler decision.   That is not an excuse available to this court.

To characterize what the trial judge did here as “judgment” coupled with the giving of an explanation of its finding is on any reading of this record, unsupported and unsupportable.   More importantly it is a far cry from that exercise of good judgment by trial judges which the Supreme Court relies on in Wheeler to make its decision work.²  Today the majority ignores the reality of what happened, and winks at grave constitutional error.

The prosecutor exercised peremptory challenges to rid the panel of all black jurors.   Five made it to the box.   None stayed in.   Despite timely objections ³ , a hearing was held only after number five had departed the premises.   Only then did the trial court find that a prima facie case had been made that the challenges were unconstitutional.   There was no other choice.  (People v. Fuller (1982) 136 Cal.App.3d 403, 423, 186 Cal.Rptr. 283.)

At that stage “the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone.  [Fn. omitted.]   The showing need not rise to the level of a challenge for cause.   But to sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses—i.e., for reasons of specific bias as defined herein.   He, too, may support his showing by reference to the totality of the circumstances:  for example, it will be relevant if he can demonstrate that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds․”  (People v. Wheeler, supra, 22 Cal.3d at pp. 281–282, 148 Cal.Rptr. 890, 583 P.2d 748, emphasis added.)

If a baseball umpire admits he was not looking, would the baseball commissioner then carefully review the videotape to test the accuracy of his calls?   It makes even less sense where liberty is at stake to search the record for evidence to support a finding of no systematic racial exclusion when the person who made that finding repeatedly admits it meant only that the prosecutor did not say “I'm going to kick all blacks off.”   Nevertheless the majority opinion finds that “the evidence” supports the finding.

Examine the evidence:  The reason given by the prosecutor to justify the challenge of Mrs. Simon was that she, like the defendant, had some contact with Texas.

Take a look at the only evidence of this contact:  “THE COURT:  How long have you lived in San Francisco?  [¶] MRS. SIMON:  Most of my life.  [¶] THE COURT:  Where did you live before you came to San Francisco?  [¶] MRS. SIMON:  My family is from Texas.”

Can it seriously be contended that this is sufficient to satisfy any court anywhere that the exercise of the peremptory challenge to Mrs. Simon was on grounds “reasonably relevant to the particular case on trial or its parties or witnesses”?   What the prosecutor found relevant was that he understood that at one point the defendant had in the past lived in Chicago and he also believed the defendant had “some contact with Texas either in the military or something like that.”   But apparently that was relevant only if the juror was black:  the prosecutor failed to inquire where the nonblack jurors had lived before they came to California (e.g., Allan Ohanley), and even when the prosecutor discovered a juror had lived in one of those two, small, suspect localities it did not bother him unless the juror was black.⁴

But the prosecutor had another reason for ridding himself of this black woman:  she “had a son I believe to be approximately the same age as the Defendant.” ⁵  Is it not strange that the prosecutor had no such problem with the nonblack jurors?   Mrs. Jean White had three sons, two of whom were about the same age as the defendant.   Alice King had two “grown” sons.   Margaret Maguire had six “grown kids”.   But not being black these jurors were not challenged.

Things do not get any better if you examine the reasons given for getting rid of Mr. Robinson:  Because Mr. Robinson “never cracked a smile” the prosecutor decided “he did not possess the sensitivities necessary” for this type of case.

Get the word out to black venire persons:  they should all be jolly if they wish to sit in judgment of rape cases.

The Supreme Court of this state has told us what the rules are to protect the right to trial by a jury drawn from a representative cross-section of the community under article 1, section 16, of the California Constitution.   Neither the prosecutor nor the trial judge seems to care.   This court should.

Like Mr. Robinson I am not cracking a smile.   But then I have been to Texas and Chicago and my son is about the same age as the defendant.

The judgment must be reversed.  (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.)

FOOTNOTES

1.   At a later stage of the lengthy discussion in chambers of the Wheeler issue, the court remarked:  “All I can say is I think that under peremptory challenges unless the District Attorney makes a statement ‘I am going to exclude,’ I don't think it's only blacks, Chinese or Greeks or anybody else, and he says ‘I'm going to kick them off,’ that is what we are talking about, but just to knock them off and he gives reasons why he knocked them off, when I ask him so he gives me some reason he has in his file and even though I may think they are falacious these are peremptory challenges and I can't go into his mind and I can't go into your mind.”   The statement is colloquial;  in writing it does not convey as clear a meaning as it may have when delivered orally;  and it can indeed be construed as misunderstanding the Wheeler holding.   But the court's statement as a whole, including its responses to the prosecutor's explanations, suggests that the Wheeler rule was understood and correctly applied.

1.   That there was no misunderstanding of the trial judge's rationale is proved by his almost identic reaction to the motion for new trial:  “You may say ‘Yes, five blacks were excluded[,]’ but the District Attorney gave reasons as I recall for his exclusion of these individuals and he has a right to exclude jurors if he feels that they are not going to be the type of juror that would give the People a fair and impartial trial.   He didn't as in the Wheeler case state that he was excluding them because they are blacks.   So I can't go behind his reasons and he gave the reasons, and I feel that they are adequate.”Later in the same motion he explained:  “What I am trying to say here is I don't think the Wheeler case goes that far, I think the Wheeler case says if an attorney, A District Attorney or even the attorney for the Defendant, says ‘I'm excluding him because of his ethnic background,’ a systematic exclusion, then it is the duty of the Court to look into it.   I didn't see that here, and therefore I'm denying your motion․”The trial judge's memory of the facts in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, was faulty.   There the prosecution used seven peremptory challenges to excuse black jurors called to the jury box in a case in which there were two black defendants.   When counsel moved for a mistrial the court asked the prosecutor whether there would be a response.   There was no response.   The trial judge in the instant case may have meant to refer to People v. Johnson (1978) 22 Cal.3d 296, 148 Cal.Rptr. 915, 583 P.2d 774, a companion case to Wheeler which was decided on the same day.In Johnson, the defendant was a black man charged with the rape of a white woman.   During voir dire defense counsel stated that the prosecutor had used a peremptory challenge against one of only two black jurors and that he would object to the use of another such challenge against the other black juror.   The prosecutor admitted he intended to use his peremptory challenges “ ‘[a]s long as I have the ability on any black juror that is called to sit in this case.’ ”  (People v. Johnson, supra, 22 Cal.3d at p. 298, 148 Cal.Rptr. 915, 583 P.2d 774.)   He explained that certain of his witnesses made racially prejudicial statements that might be disclosed to the jury, “ ‘which I would think would make it very difficult for any black person to be totally objective about it ․ either consciously or subconsciously ․’ ”  (Id., at p. 299, 148 Cal.Rptr. 915, 583 P.2d 774.)   After the jury was sworn, defendant moved for a mistrial on the peremptory challenge grounds set forth in Wheeler.   The court denied the motion and the case was heard before an all white jury.   The Supreme Court reversed because the prosecutor's reasons were insufficient as a matter of law.

2.   “And again we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.”  (People v. Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.)

3.   For example, “MR. ROSEN:  Under People vs. Wheeler which I think the Court is quite familiar with, I am object[ing] to the systemic exclusion of black people on this jury.   As I look out into the panel that will [remain] there are only two black people at least in the audience.   I don't even know if those people actually are on the panel.   I believe that under the Wheeler decision such a systemic exclusion by race, I want a mistrial.  [¶] MR. FAZIO:  I have exercised three challenges, two of those have been black.   Wheeler certainly does not stand for that.   Counsel has to make a better showing.  [¶] MR. ROSEN:  There is only one black person on this jury.   Do we have to wait until she is excused until we ask for such an offer by the prosecution as to their intention for the reason of the exclusion.   I don't think one could point to one item of those people's background that have been excused, the two black people, that could be justified as reasonable trial tactics other than a prosecutor not wanting black jurors on a jury in which you have got a black defendant.   I would ask for that showing to be made.  [¶]  MR. FAZIO:  Your Honor, I am not prepared to make it.   There certainly has been less than a systemic exclusion to use counsel's own words.  [¶]  THE COURT:  I will so rule at this point, this isn't a systemic exclusion under the aut[h]orities, and I'll deny the motion for mistrial.   However in some future time if you feel to the contrary raise the issue and I'll consider it at that time.  [¶]  MR. ROSEN:  I'm going to raise the issue upon the next exercise of a challenge.  [¶]  THE COURT:  Wait until the occasion arises.   Very well.”  (Emphasis added.)

4.   Nonblack juror Lum testified he had lived in Chicago but he drew no challenge.

5.   The only evidence of the age of her son is Mrs. Simon's testimony that he works for the State of California in the highway maintenance department.

CHRISTIAN, Associate Justice.

CALDECOTT, P.J., concurs.