Filed 4/21/16 P. v. Graham CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069280
Plaintiff and Respondent,
v. (Super. Ct. Nos. RIF1200136,
SWF1301022 & SWF1303458)
SANKONA LOVELELTEMAL GRAHAM,
Defendant and Appellant.
APPEALS from judgments of the Superior Court of Riverside County, Albert J.
Wojcik, Judge. Affirmed as modified.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P.
Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
This appeal involves three separate criminal cases. In case No. RIF1200136,
Sankona Loveleltemal Graham pleaded guilty to having unlawful sexual intercourse with
a minor (Pen. Code, § 261.5, subd. (c))1 and admitted an allegation he inflicted great
bodily injury during the commission of the crime (§ 12022.7, subd. (a)). In case No.
SWF1301022, Graham pleaded guilty to committing assault with a deadly weapon
(§ 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
court denied defense counsel's motion. The court found, "[T]he peremptory challenges
were exercised by [the prosecutor] on a neutral basis reasonably relevant to his case and
with such other jurors, and, specifically, was not based upon a group or race bias. The
reasons stated by [the prosecutor], [defense] counsel may not agree with the reasons, but I
think are valid reasons; and there are some justification behind them, to some extent."
B
"Both the state and federal Constitutions prohibit the use of peremptory strikes to
remove prospective jurors on the basis of group bias. (Batson, supra, 476 U.S. at p. 89;
Wheeler, supra, 22 Cal.3d at pp. 276-277.) The now familiar Batson/Wheeler inquiry
consists of three distinct steps. First, the opponent of the strike must make out a prima
17
facie case by showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose in the exercise of peremptory challenges. Second, if the prima
facie case has been made, the burden shifts to the proponent of the strike to explain
adequately the basis for excusing the juror by offering permissible, nondiscriminatory
justifications. Third, if the party has offered a nondiscriminatory reason, the trial court
must decide whether the opponent of the strike has proved the ultimate question of
purposeful discrimination." (People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).)
Here, the court at least implicitly found Graham had established a prima facie case
of racial discrimination. We, therefore, proceed to the third step of the Batson/Wheeler
inquiry and analyze whether the court properly accepted the prosecutor's race neutral
reasons. (Scott, supra, 61 Cal.4th at p. 387, fn. 1; People v. Hensley (2014) 59 Cal.4th
788, 802 (Hensley); People v. Sattiewhite (2014) 59 Cal.4th 446, 469; People v. Mai
(2013) 57 Cal.4th 986, 1049-1050.)
We focus our inquiry " 'on the subjective genuineness of the race-neutral reasons
given for the peremptory challenge, not on the objective reasonableness of those
reasons.' " (People v. Chism (2014) 58 Cal.4th 1266, 1317.) "A peremptory challenge
may be based on employment [citation], and ' "hunches[,]" and even "arbitrary" exclusion
is permissible, so long as the reasons are not based on impermissible group bias'
[citation]. The basis for a challenge may range from 'the virtually certain to the highly
speculative' [citation] and 'even a "trivial" reason, if genuine and neutral, will suffice.' "
(Id. at p. 1316.)
18
Our " ' "[r]eview of a trial court's denial of a [Batson/Wheeler] motion is
deferential, examining only whether substantial evidence supports its conclusions.
[Citation.] 'We review a trial court's determination regarding the sufficiency of a
prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' "
[Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court's ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and
reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions
are entitled to deference on appeal.' " ' [Citation.] 'When the prosecutor's stated reasons
are both inherently plausible and supported by the record, the trial court need not
question the prosecutor or make detailed findings.' " (Hensley, supra, 59 Cal.4th at
pp. 802-803.)
Here, the prosecutor stated reasons for challenging Juror 7 were his reservedness,
his tendency to mumble his responses, and his difficulty clearly articulating his thoughts.
These reasons are race-neutral, inherently plausible and, to the extent they can be
assessed by reviewing transcripts, supported by the record. In his first exchange with the
prosecutor, Juror 7 admitted to being nervous for no reason and, in both exchanges, he
appeared to have trouble understanding and coherently responding to the prosecutor's
questions.
The prosecutor stated reasons for challenging Juror 8 were her difficulty in
understanding and clearly responding to questions, her status as a single parent, her status
as a cosmetology student, and his general sense she would not be able to articulately
19
represent her views in the jury room. As with the prosecutor's stated reasons for
challenging Juror 7, these reasons are race-neutral, inherently plausible, and supported by
the record. Particularly supportive were Juror 8's responses to questions about the
reasonableness of the prosecutor's claim of being a professional football player and
whether a sidewalk could be used as a deadly weapon as these responses reflect a
tendency to conform her views to perceived expectations rather than the exercise of her
independent judgment. (People v. DeHoyos (2013) 57 Cal.4th 79, 109 (DeHoyos) [a
juror's responses and demeanor suggesting an inability to independently reach a judgment
on the issues is a permissible race-neutral ground for a peremptory challenge].)
A comparative juror analysis does not aid Graham's position because the record
fails to show that any seated or alternate juror possessed the same combination of
characteristics prompting the prosecution's challenges to Juror 7 and Juror 8. "In order
for a comparison to be probative, jurors need not be identical in all respects [citation], but
they must be materially similar in the respects significant to the prosecutor's stated basis
for the challenge." (DeHoyos, supra, 57 Cal.4th at p. 107; People v. Harris (2013) 57
Cal.4th 804, 836-837.) Accordingly, we conclude there is substantial evidence to support
the court's decision to deny Graham's Batson/Wheeler motion.
II
A
The evening between the caregiver's testimony and the investigating officer's
testimony, the prosecutor learned for the first time there was an audio recording of the
investigating officer's interview with the caregiver. The prosecutor immediately notified
20
defense counsel of the recording and he provided her with a copy of it the following
morning. After listening to the recording, defense counsel moved for a mistrial, arguing
the late disclosure of the recording prejudiced her ability to adequately prepare Graham's
defense. As support for her position, she noted the recording contained a substantial
amount of new information, including not just the caregiver's statements to the
investigating officer, but also Graham's mother's statements to the investigating officer.
Had the recording been available to her earlier, she asserted she would have had her
investigator question the witnesses about their prior inconsistent statements and possibly
altered her trial tactics based on their responses.
The prosecutor pointed out the witnesses' prior inconsistent statements were
already going to come into evidence through the investigating officer's testimony.
Nonetheless, he recognized there had been a discovery violation, and he argued the
appropriate remedy for it was a continuance to allow defense counsel to process the new
information.
The court agreed with the prosecution. The court denied defense counsel's request
for a mistrial, but granted her a brief continuance of approximately a half day to process
the new information. The audio recording was subsequently played for the jury during
the testimony of the investigating officer. Defense counsel later recalled the caregiver as
a witness, who testified she had lied to the investigating officer at the behest of Graham's
mother.
The court also instructed the jury with the following tailored version of CALJIC
No. 2.28: "The prosecution and the defense are required to disclose to each other before
21
trial the evidence each intend[s] to present at trial so as to promote the ascertainment of
the truth, save court time and avoid any surprise which may arise during the course of the
trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to
subpoena necessary witnesses or produce evidence which may exist to rebut the non-
complying party's evidence.
"Disclosure[s] of evidence are required to be made at least 30 days in advance of
trial. Any new evidence discovered within 30 days of trial must be disclosed
immediately. In this case, the People failed to timely disclose the following evidence:
Audio of interviews with [the caregiver and Graham's mother].
"Although the People's failure to timely disclose evidence was without lawful
justification, the Court has, under the law, permitted the production of this evidence
during the trial. [¶] If you find that the delayed disclosure was by the prosecution, and
relates to a fact of importance rather than something trivial, and does not relate to a
subject matter already established by other credible evidence, you may consider that
delayed disclosure in determining the believability or weight to be given to that particular
evidence."
B
Graham contends the court's failure to grant his request for a mistrial deprived him
of his constitutional right to due process of law. We are unpersuaded by this contention.
"Section 1054.1 (the reciprocal-discovery statute) 'independently requires the
prosecution to disclose to the defense . . . certain categories of evidence "in the
possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in
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the possession of the investigating agencies." ' [Citation.] Evidence subject to disclosure
includes '[s]tatements of all defendants' (§ 1054.1, subd. (b)), '[a]ll relevant real evidence
seized or obtained as a part of the investigation of the offenses charged' (id., subd. (c)),
any '[r]elevant written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial, including any reports or
statements of experts' (id., subd. (f)), and '[a]ny exculpatory evidence' (id., subd. (e)).
'Absent good cause, such evidence must be disclosed at least 30 days before trial, or
immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)' [Citation.]
"Upon a showing both that the defense complied with the informal discovery
procedures provided by the statute, and that the prosecutor has not complied with section
1054.1, a trial court 'may make any order necessary to enforce the provisions' of the
statute, 'including, but not limited to, immediate disclosure, . . . continuance of the matter,
or any other lawful order.' (§ 1054.5, subd. (b).) The court may also 'advise the jury of
any failure or refusal to disclose and of any untimely disclosure.' (Ibid.) A violation of
section 1054.1 is subject to the harmless-error standard set forth in . . . Watson[, supra,]
46 Cal.2d [at page] 836." (People v. Verdugo (2010) 50 Cal.4th 263, 279-280
(Verdugo).)
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
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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
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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
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Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
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