California Court of Appeal Apr 21, 2016 No. D069280Unpublished
Filed 4/21/16 P. v. Graham CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(§ 245, subd. (a)(1)). The trial court placed him on formal probation in both cases.
In case No. SWF1303458, a jury convicted Graham of contempt of court by
willfully disobeying a criminal protective order (§ 166, subd. (c)(1)) and dependent adult
abuse not likely to cause great bodily injury (§ 368, subd. (c)).2 The same day the court
found Graham willfully violated his probation in case Nos. RIF1200136 and
SWF1301022.
For case No. SWF1303458, the court sentenced Graham to two concurrent terms
of 180 days in jail with credit for time served. For case No. SWF1301022, the court
sentenced Graham to six years in prison, including a three-year term for the great bodily
injury enhancement. For case No. RIF1200136, the court sentenced Graham to five years
in prison to run concurrently with the sentence in case No. SWF1301022.
1 Further statutory references are to the Penal Code unless otherwise indicated.
2 The latter offense was a lesser included offense of willfully inflicting unjustifiable physical pain and mental suffering upon an elder and dependent adult under circumstances and conditions likely to produce great bodily harm and death (§ 368, subd. (b)(1)). 2
Graham appeals. In case No. SWF1303458, he contends he was deprived of his
constitutional rights to an impartial jury and equal protection of the law because of the
prosecutor's discriminatory use of peremptory challenges to remove African-American
jurors from the jury. He also contends he was deprived of his constitutional right to due
process of law because of the court's failure to grant a mistrial after the prosecutor's
untimely disclosure of evidence. In case No. SWF1301022, he contends we must strike
the sentence for the great bodily injury enhancement because his guilty plea did not
include an admission to the truth of a great bodily injury enhancement allegation. In case
No. RIF1200136, he contends we must order the abstract of judgment corrected to
accurately reflect his presentence custody credits.
The People agree with the last two points. We shall direct the court to make an
appropriate modification to the judgment in case No. SWF1301022; however, we
conclude there is no need to order a correction to the abstract of judgment in case No.
RIF1200136 as the record shows the court has already corrected the identified clerical
error. We are unpersuaded by Graham's remaining contentions and affirm the judgments.
3
BACKGROUND3
Case No. SWF1301022
Graham became upset when he heard his mother on the phone ostensibly
attempting to contact someone to remove him from her home.4 He picked up a glass
sugar dish and threw it at her head. It hit the back of her head and knocked her down.
The two tussled on the floor. She grabbed a piece of glass and hit his head with it. Then,
she got up and ran into the bedroom to call for help. As she was on the phone with 911,
he pushed her into a closet and hit her body with her walker 19 times. After telling her he
was going to break her hip, he positioned the walker under her hip, picked up a large rock
being used as a doorstop, and hit her legs and head with it several times. The last time he
struck her head she lost consciousness.
Case No. SWF1303458
Some months after the event underlying case No. SWF1301022, Graham was
staying with his mother, who lived in a senior community. Graham was not allowed to
stay there and his mother's landlord repeatedly told him to leave the property.
Graham's mother had numerous health concerns, including a bad hip. Her ability
to walk was limited and she required the assistance of her live-in caregiver to bathe,
3 The evidence in case No. SWF1303458 included evidence of the conduct underlying and the resolution of case No. SWF1301022. We confine our summary to the evidence from these two cases as only the evidence from these cases is relevant to the substantive issues raised on appeal.
4 Graham's mother has prior convictions for theft, providing false information to a police officer, child endangerment, and domestic violence. 4
change clothes, prepare meals, and administer medication. Because her medication did
not adequately relieve her hip pain, she sometimes smoked cocaine procured by her
caregiver. (The caregiver denied providing Graham's mother with illegal drugs.)
One morning, the caregiver walked into the kitchen and announced someone had
taken $20 from her purse. Graham entered the room and loudly accused his mother, who
was sitting nearby on the couch, of stealing the money. He jumped on his mother with
his knees, using "all [of] his body weight." She described his action as "cannonball[ing]"
on her.
While on top of her, Graham placed his hands around her neck and started choking
her while telling her he was going to kill her. He eventually let go of her neck, picked up
her metal walker, and struck her ribs and hip with it. He then punched her two or three
times in the jaw, on both sides of her face.
When his mother attempted to call 911, Graham grabbed her house phone.
Around then her landlord came to her home, saw Graham, and told Graham to leave. His
mother called 911 from her caregiver's cell phone as Graham packed up his belongings.
Graham's mother told the 911 dispatcher Graham hit her in the jaw twice and had
previously beaten her. She claimed her ears were ringing from being hit in the head.
Although Graham could be heard yelling in the background during the 911 call, he left
his mother's home before the police arrived, taking the caregiver's cell phone, his
mother's house phone, and his mother's cigarettes with him.
His mother and the caregiver provided separate, consistent statements to police
about the altercation. The statements were corroborated by his mother's statements and
5
the observations of the health care professionals who treated her. However, both his
mother and the caregiver later recanted their statements.
At trial, Graham's mother denied Graham jumped on her. Instead, she testified he
sat on her lap like a baby, grabbed her braids, and moved them to the side. She also
denied Graham punched her, slapped her, or hit her with the walker. She claimed she
lied in her initial statements about the incident because she wanted Graham out of her
home. She also claimed to be under the influence of alcohol and cocaine at the time of
the incident.
The caregiver testified she heard Graham and his mother yelling at one another,
but she denied seeing Graham jump on, hit, punch, or choke his mother or do anything
else to endanger her. Initially, the caregiver denied making prior inconsistent statements
to police, but after being confronted with an audio recording of the statements (see
Discussion, pt. II, post), she testified she previously lied to police about the encounter
because Graham's mother wanted her to lie and threatened to fire her and kick her out of
their home if she did not do so.
The court took judicial notice of the fact Graham pleaded guilty in case No.
SWF1301022 to violating section 245, subdivision (a)(1), by committing assault with a
deadly weapon using a rock. The parties further stipulated the court issued a criminal
protective order against Graham in case No. SWF1301022, which prohibited him from,
among other actions, harassing, striking, threatening, assaulting, disturbing the peace of,
or blocking the movements of his mother.
6
DISCUSSION
I
Graham, an African-American, contends the prosecutor in case No. SWF1303458
violated his state and federal constitutional rights to equal protection and an impartial
jury by peremptorily excusing two African-American prospective jurors. (See Batson v.
Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler), overruled in pt. by Johnson v. California (2005) 545 U.S. 162, 164.) We
disagree.
A
1
The court's process for conducting voir dire was to question an initial group of 18
prospective jurors, allow the parties to question them, hear any challenges for cause as to
them, allow the parties to exercise any peremptory challenges as to them, and then repeat
the process as needed with six additional prospective jurors at a time. The court
conducted six rounds of voir dire in this manner before 12 jurors and three alternates
were seated.
Prospective Juror No. 7 (Juror 7) was the first African-American prospective juror
the prosecutor excused. He was in the third round of jurors questioned and the third
round of jurors excused. In response to the initial, standard voir dire questions, Juror 7
stated he was single and had no children, he was a student studying biology and
chemistry, and he coached wrestling and football.
7
The majority of Juror 7's voir dire consisted of short responses to group questions
from the court, defense counsel, and the prosecutor. However, Juror 7 also had two
extended exchanges with the prosecutor. The first exchange related to witness veracity:
"[PROSECUTOR]: Do you think every witness tells the truth every time? [¶] . . . [¶]
"[JUROR 7]: No, but for a question off of that, wouldn't you have to take what they say at face value?
"[PROSECUTOR]: What do you mean?
"[JUROR 7]: And assume that it's true?
"[PROSECUTOR]: I'm sorry, what do you mean?
"[JUROR 7]: Assume what they testify to be true.
"[PROSECUTOR]: You would assume it to be true?
"[JUROR 7]: What―aren't you suppose[] to take it as―I think the question for you, like, are you supposed to take everybody's testimony to be true or is it off of your own assumptions?
"[PROSECUTOR]: Well, the question for you is are you able to judge the credibility of that witness―
"[JUROR 7]: Okay.
"[PROSECUTOR]: ―and make that determination yourself?
"[JUROR 7]: All right.
"[PROSECUTOR]: Are they telling the truth now or were they telling the truth before? Do you think you could do that?
"[JUROR 7]: Yes.
"[PROSECUTOR]: What types of things would you consider in trying to make that determination?
8
"[JUROR 7]: I would just have to take everything at face value, because they might just be nervous if they are doing like little ticks like everybody else is talking about. I'm just sitting here talking, and I'm nervous for no reason. And there's no repercussions for me, but somebody who is on the stand who might, where something or something depends on it, they might be nervous and just do all the extra little things that might make it seem like they are lying, but they are not.
"[PROSECUTOR]: Okay. Let's assume it's not just nervous ticks or someone looking down or not maintaining eye contact, but, in fact, what she testifies is, 'He didn't actually beat me. I beat myself, and I lied to police when I said he beat me[?]' Okay? Now, you've got two completely conflicting stories. What are the types of things that you would consider in determining which story is the truth?
"[JUROR 7]: Just the original situation.
"[PROSECUTOR]: Such as?
"[JUROR 7]: Um, what she first said was probably more true than what she came back to say later, after the initial age and everything is gone. So the situation would have to be how I would interpret it.
"[PROSECUTOR]: Would you consider what is more reasonable, which version of the events is more reasonable?
"[JUROR 7]: Whether he beat her or whatever the situation is.
"[PROSECUTOR]: Right. When she describes what happened the first time versus 'I punched myself,' basically.
"[JUROR 7]: Yeah.
"[PROSECUTOR]: Would you consider which one is more reasonable?
"[JUROR 7]: What happened the first time.
"[PROSECUTOR]: Okay.
"[JUROR 7]: You understand what I'm saying, anyway?
9
"[PROSECUTOR]: I think I do, yes."
The second exchange involved witness credibility:
"[PROSECUTOR]: Okay. Did you all hear my hypothetical about if a witness lies about one thing and tells the truth about another, that it's up to you? The law says it's up to you to decide whether to believe some of it, all of it, or none of it. Anybody have any issues with that? [¶] . . . [¶]
"[JUROR 7]: No.
"[PROSECUTOR]: The story about the business man on the trip, tells the police everything the truth, except for that one part about where and how it happened. Does that mean that the crime did not occur?
"[JUROR 7]: No. The crime did occur.
"[PROSECUTOR]: I'm sorry?
"[JUROR 7]: The crime did occur.
"[PROSECUTOR]: It did occur?
"[JUROR 7]: Yes.
"[PROSECUTOR]: Okay. So if the woman who took his money and took his wallet is on trial, and you hear that businessman take the stand, and we know he's obviously a liar; right? Because he is lying to the employee for one thing about what he's doing, but he's also lying to you as a juror about how it happened. Your testimony or your answer a minute ago was that the crime still occurred.
"[JUROR 7]: Yes.
"[PROSECUTOR]: Is that right?
"[JUROR 7]: Yes.
"[PROSECUTOR]: And it's up to you to decide how much to believe. How would vote in that case, assuming you believed everything else he said to be true?
10
"[JUROR 7]: I would vote guilty if the evidence points to it."
2
Prospective Juror No. 8 (Juror 8) was the second African-American prospective
juror the prosecutor excused. She remained a prospective juror longer than Juror 7. She
was in the second round of jurors questioned and the fourth round of jurors excused.
In response to the initial, standard voir dire questions, she stated she was not
married, she had one child, and she was a cosmetology student and a sales representative.
She had previously served as a juror in a child molestation case and the jury had been
able to reach a verdict.
Like Juror 7's voir dire, Juror 8's voir dire largely consisted of providing short
responses to group questions from the court, defense counsel, and the prosecutor.
However, she had four extended exchanges with the prosecutor. The first exchange
related to the role of juror:
"[PROSECUTOR]: . . . The ultimate question is simply, did he do what he is charged with doing or didn't he? [¶] [Juror 8], do you think, knowing that, that you're asked to decide whether he's a good person or a bad person?
"[JUROR 8]: He's a good―good person. I don't understand what you are saying.
"[PROSECUTOR]: In other words, your job as a juror―
"[JUROR 8]: Uh-huh.
"[PROSECUTOR]: ―is to decide did he do it or didn't he?
"[JUROR 8]: Yes. [¶] . . . [¶]
11
"[PROSECUTOR]: The question isor your duty is to determine, have the charges been proven beyond a reasonable doubt?
"[JUROR 8]: Okay. [¶] . . . [¶]
"[PROSECUTOR]: If you determine that the charges have been proven beyond a reasonable doubt, you have determined that he did it.
"[JUROR 8]: Yes.
"[PROSECUTOR]: If it has not been proven beyond a reasonable doubt, it's simply that I have not proven my case beyond a reasonable doubt.
"[JUROR 8]: Yes.
"[PROSECUTOR]: Okay. Is that part clear?
"[JUROR 8]: Yes.
"[PROSECUTOR]: Okay. So do you think that in determining whether the charges have been proved beyond a reasonable doubt, part of your determination is, is he a good person or a bad person?
"[JUROR 8]: I don't think he would be neither one, good or bad. I can't determine if he's a good or bad person―
"[PROSECUTOR]: Right.
"[JUROR 8]: ―after that.
"[PROSECUTOR]: Right. In other words, in determining, is the proof there or isn't there, no part of that is asking you to decide whether he's a good or a bad person.
"[JUROR 8]: Yes.
"[PROSECUTOR]: Are you okay with that?
"[JUROR 8]: Yes."
12
The second exchange involved a discussion of the prosecution of crimes occurring
in the home:
"[PROSECUTOR]: [Juror 8], do you think every crime happens out in public where there are many witnesses? "[JUROR 8]: No
"[PROSECUTOR]: Why not?
"[JUROR 8]: It's 'cause―I don't know. People do thing―things happen everywhere.
"[PROSECUTOR]: Okay.
"[JUROR 8]: I mean, it doesn't have to just be outside. It can be behind closed doors. It can be outside. It can be anywhere.
"[PROSECUTOR]: All right. And are you okay with the idea of a person being prosecuted for something that some people might say is a family matter, something that happens just between family members.
"[JUROR 8]: Yes.
"[PROSECUTOR]: You are okay with that?
"[JUROR 8]: Yes.
"[PROSECUTOR]: And do you have any problems with sitting on a jury, where a person is charged with committing a crime against a family member?
"[JUROR 8]: No."
The third exchange involved a discussion about determining a witness's veracity:
"[PROSECUTOR]: [Juror 8], do you think that you would be able to determine whether a witness is lying about something or not?
"[JUROR 8]: Yes, I could.
"[PROSECUTOR]: What kinds of things would you consider?
13
"[JUROR 8]: Um, I think consistency in the story.
"[PROSECUTOR]: Anything else?
"[JUROR 8]: Um―eye contact, you know, twirling of the hair. I mean, there's a lot of things that you can pick up on.
"[PROSECUTOR]: Just kind of their demeanor while they're testifying?
"[JUROR 8]: Yeah.
"[PROSECUTOR]: Would you consider whether or not what they are saying is reasonable in determining whether they might be telling the truth?
"[JUROR 8]: Yeah.
"[PROSECUTOR]: And, in other words, if I said that I am a prosecutor by day, but in the off season I am the starting quarterback of the San Diego Chargers, do you think I'm telling the truth or not?
"[JUROR 8]: I don't know. I wouldn't―
"[PROSECUTOR]: I'll take that as a compliment. [¶] All right. Well, there's a distinction that has to be drawn between something being reasonable and unreasonable, and possible versus impossible. It's possible that I am a starting quarterback for the San Diego Chargers, I'm relatively young―I'll stop right there. Do you think it's reasonable, though, for me to say that?
"[JUROR 8]: Yes.
"[PROSECUTOR]: You do?
"[JUROR 8]: Uh-huh?
"[PROSECUTOR]: You think I would be here right now?
"[JUROR 8]: No, I'm sorry. No.
14
"[PROSECUTOR]: Okay. Do you think you would be able to determine whether something that someone says is actually reasonable or not?
"[JUROR 8]: Yes."
The last exchange involved a discussion about the use of ordinary, not inherently
dangerous items as a deadly weapon:
"[PROSECUTOR]: Okay. What about a sidewalk? [Juror 8], I'll give you the tricky one.
"[JUROR 8]: Picking on me. It depends. It can be.
"[PROSECUTOR]: How can it have been?
"[JUROR 8]: If somebody runs and trips or somebody pushed somebody down. Yeah, it could be."
3
After the prosecutor excused Juror 8, defense counsel made a Batson/Wheeler
motion seeking justification for the prosecution's peremptory challenges to Jurors 7 and
8. At the time of the motion, there was one African-American on the jury and another
next up to replace Juror 8.
When the court offered the prosecutor an opportunity to comment, the prosecutor
first asked whether the court was making a prima facie finding of racial discrimination.
The court responded, "Well, I don't know if there is or isn't, but I do know your last pre-
empt, before Juror 8, was not a person who was a minority but the one before that was; so
we have [an African-American] individual who was excused, and a person who is not
[African-American], another [African-American] individual. Although [one African-
American] has been on there for a long time, and another [African-American] who
15
is―would take the spot. So that in mind, I would make a finding at least to the point of
requir[ing] a reason why." (Italics added.)
The prosecutor then explained he had no problem with the African-American
already on the jury. "I think he's just fine. I think every time he was answering a
question, he answered the question articulately. He answered the questions intelligently.
Everything that he said in court made perfect sense. I didn't have any difficulty
communicating with him."
Conversely, regarding Juror 7, the prosecutor explained, "[He] was a very quiet
person. He mumbled. He would not answer my question very clearly. He specifically
said [in response to questions from defense counsel], 'If I had my doubts, I would vote
"not guilty," ' which is not the standard. You can have doubts, it just has to be beyond a
reasonable doubt. And I didn't feel that when I probed to try to get more information out
of him, that he was speaking clearly, that he was articulating his thoughts, that he was
reserved in his answers."
The prosecutor had the same impression of Juror 8. The prosecutor explained,
"She seemed confused when I was asking her whether or not she would decide the issue
of whether or not the defendant is a good person or a bad person or whether or not that
would play any role in her deliberations, and I had to clarify it several times before she
said, 'Oh, no, it wouldn't play a role.' But the very first answer she gave was, 'He's a good
person,' which clearly she doesn't have any evidence about that. That's not a proper
consideration.
16
"Additionally, she is the only person who is up there who is single and has a child.
While that's not a criteria by itself, it's one more factor that I considered. She's going into
cosmetology. I just did not get a good feeling that she would be the person who would
actually articulately represent the viewpoints in a jury deliberation room, whereas I do get
that feeling from [the African-American already on the jury] and I get that feeling from
[the African-American who would be next up to replace Juror 8]. I have no desire to kick
either one of them."
Defense counsel disagreed with the prosecutor's assessment. She argued the two
jurors answered the questions posed to them, their answers were not inarticulate, they
were both students, and they did not answer the questions any differently than the non-
African-American jurors still sitting on the jury.
After hearing the prosecutor's explanations and defense counsel's arguments, the
In this case, defense counsel knew before trial Graham's mother and her caregiver
had recanted their statements to the investigating officer. Defense counsel also knew the
officer would be testifying to their prior statements. Defense counsel learned of the audio
recording of the statements before the investigating officer testified. The court granted
defense counsel a brief continuance to prepare for the officer's cross-examination. Both
23
Graham's mother and the caregiver testified they lied to the officer and offered a facially
plausible explanation for why they did so: Graham's mother to get Graham out of her
home and the caregiver because she was threatened with the loss of her job and home.
The investigating officer admitted he failed to book the audio recording into evidence and
the court instructed the jury it could draw an adverse inference from the delayed
discovery. Although Graham states generally the delay adversely affected defense
counsel's preparations, he does not specifically explain what his counsel would have done
differently absent the delay. Accordingly, he has not demonstrated the delay prejudiced
him. (See Verdugo, supra, 50 Cal.4th at pp. 281-282.)
III
The court's sentence in case No. SWF1301022 included a three-year term for a
great bodily injury enhancement. However, Graham's guilty plea in this case did not
include an admission to the truth of a great bodily injury enhancement allegation.
Graham contends, the People concede, and we agree we must modify the sentence
to strike the term for the great bodily injury enhancement. This portion of the sentence
was unauthorized because it could not be legally imposed (People v. Anderson (2010) 50
Cal.4th 19, 26), and we have the power to correct an unauthorized sentence at any time.
(§ 1260; People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)
IV
When the court orally pronounced the sentence in case No. RIF1200136, the court
did not pronounce an award of presentence custody credit. Nonetheless, the court stated
it would impose all terms suggested and recommended in the probation report. The
24
probation report recommended the court award 508 days of presentence custody credit,
consisting of 442 days of actual custody credit and 66 days of conduct credit, and the
minute order from the sentencing hearing indicates the court awarded presentence
custody credit in these amounts. However, the abstract of judgment filed November 18,
2014, mistakenly states the court awarded only 422 days of actual custody credit.
Graham contends and the People agree we should direct the court to correct this
clerical error. While we have the power to order such a correction (People v. Mitchell
(2001) 26 Cal.4th 181, 185), we need not exercise our power in this instance as the record
shows the court already corrected the error in an abstract of judgment filed December 29,
2014, following the receipt of a letter from the Department of Corrections and
Rehabilitation.
DISPOSITION
In case Nos. SWF1303458 and RIF1200136, the judgments are affirmed. In case
No. SWF1301022, the judgment is modified to strike the three-year sentence for the great
bodily injury enhancement. The trial court is directed to amend the abstract of judgment
to reflect this modification and to forward a copy of the amended abstract to the
25
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
26
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions and sentences, finding no merit in his claims regarding the prosecutor's use of peremptory challenges, the denial of a mistrial, or the sentencing enhancements. The court directed a modification to the judgment in one case to correct a sentencing error but found no further corrections were required.
Issues
Did the prosecutor violate the defendant's constitutional rights through the discriminatory use of peremptory challenges?
Did the trial court err in failing to grant a mistrial following the prosecutor's untimely disclosure of evidence?
Must the sentence for the great bodily injury enhancement be stricken due to the defendant's guilty plea?
Did the trial court err in its calculation of presentence custody credits?
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“We are unpersuaded by Graham's remaining contentions and affirm the judgments.”