Filed 10/3/13 P. v. Mandujano CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B243855

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. KA092999)
         v.

RIGOBERTO RAUL MANDUJANO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mike
Camacho, Judge. Affirmed.
         John Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels,
Supervising Deputy Attorney General, and Connie H. Kan, Deputy Attorney General, for
Plaintiff and Respondent.


                                  ________________________________
       Defendant and appellant Rigoberto Raul Mandujano was convicted by jury of the
willful, deliberate, and premeditated attempted murder of Michael Johnson. (Pen. Code,
§§ 664, 187.)1 The jury found true allegations that defendant used a firearm (§§ 12022.5,
subd. (a), 12022.53, subds. (b)-(d)) and personally inflicted great bodily injury on
Johnson (§ 12022.7, subd. (a)). The trial court sentenced defendant to 7 years to life for
the attempted murder, enhanced by 25 years to life for the firearm use under section
12022.53, subdivision (d).2
       In his timely appeal from the judgment, defendant contends: (1) the trial court
failed to properly evaluate whether the prosecutor had exercised peremptory challenges
for improper racial or ethnic purposes under Batson v. Kentucky (1986) 476 U.S. 79 and
People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler); and (2) the trial court abused
its discretion in denying defendant’s motion for mistrial after testimony indicating
defendant was believed to be a member of a street gang. We affirm. Defendant has
failed to demonstrate error under Batson/Wheeler, and denial of the motion for mistrial
was not prejudicial error.


                                           FACTS


       Johnson was asked by Rosie Duran, with whom he lived in an apartment along
with her family, to talk to a friend named Ismael, whose son had been inhaling dangerous
gases. Johnson walked one block to where Ismael lived, where he came in contact with
defendant and others. Defendant accused Johnson of having an affair with Nicholwaia
Butler, the wife of their recently deceased friend, which Johnson denied. Defendant
punched Johnson in the eye, after which a fight ensued with Johnson, a much larger man,



       1   All statutory references are to the Penal Code, unless otherwise stated.
       2 The trial court dismissed the great bodily injury allegation and a prior prison
term finding pursuant to section 1385. Sentencing on the additional firearm use findings
was stayed under section 654.


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gaining the upper hand by placing defendant in a choke hold. The fight ended when
another man intervened. Johnson left the area, walking in the direction of his apartment.
         Johnson stopped along the way at Syllia Camacho’s apartment to ask for a
cigarette, telling her he had just fought with defendant, whom he called “Rigo.” After
leaving Camacho, Johnson unsuccessfully asked several others on the street for a
cigarette. Johnson sat on a car in the carport of his apartment for a few minutes, when
defendant and another man approached. Defendant asked if they still had a problem.
Johnson said yes, and defendant pulled out a gun and pointed it at Johnson. Johnson
backed away while telling defendant to put down the gun, but Johnson saw the flash of
the muzzle and fell to the ground. Defendant stood over him and fired two or three more
shots.
         Johnson called out to Duran and her boyfriend. He told them and a responding
police officer that defendant (whom he called either “Rigo” or “Regal”) had shot him.
Johnson was treated at the hospital for gunshot wounds.3 A bullet lodged in his neck was
deemed too dangerous to remove and was left in place. Another bullet passed through his
body, narrowly missing various vital organs. Johnson gave an account of the events to
police officers at the hospital, including an identification of defendant from a six-pack
photographic lineup.4
         On the night of the incident, Duran told an officer that she received a text message
from Camacho before the shooting, indicating defendant was going to try to kill Johnson.
         Camacho told an officer that Johnson had stopped by her apartment after the fight
and left, walking in the direction of his apartment. She saw defendant in the street,
asking someone where to find Johnson. She sent the text message to Duran because she




         3
         Johnson had consumed alcohol, marijuana, and methamphetamine prior to the
shooting.

         4
         Johnson did not identify defendant at the preliminary hearing but made an in-
court identification at trial.


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feared that defendant, who looked like a gang member, was going to kill Johnson.
Camacho recanted these statements at trial.
       In a statement also recanted at trial, Butler told an officer on the night of the
shooting that she had seen defendant stop his car in front of Johnson’s apartment. Butler
later identified a photograph of defendant.


                                       DISCUSSION


Asserted Batson/Wheeler Error


       Defendant argues the trial court failed to conduct a complete review of the
prosecutor’s pattern of improper use of peremptory challenges to excuse four Hispanic
jurors. The court examined only the basis for the challenge to the last juror, Juror No. 2,
despite defense counsel’s objection to the pattern of discriminatory challenges.
Defendant reasons the case must be remanded to allow the trial court to examine whether
the challenges to the three other jurors were proper under Batson/Wheeler. We disagree
and conclude the trial court properly addressed the issue presented to it by the objection.
       After extensive voir dire by the trial court and both counsel, and the exercise of
multiple peremptory challenges by both sides, the prosecution excused Juror No. 2. A
discussion was held at the bench at the request of defense counsel, who made “a
Batson/Wheeler motion. [The prosecution] has now kicked off four Hispanic people.
Three females, one male. She has released other people too. I think there is kind of a
consistent pattern biased against my client, who is Hispanic. I’m asking the court to
make an inquiry into her reasons as to why.”
       The trial court stated it was “looking for issues of specific bias” and asked the
prosecutor to “elaborate.” The prosecutor said she had only brought her notes on the last
juror to the bench and offered to get the notes on the other jurors. The court said it was
only asking about “the last one.” The prosecutor explained the juror admitted being
involved in numerous fights in school, and she did not want a juror who would say what


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motivates someone to retaliate since that is an issue in the case. The court agreed that is
an issue because the case involved a physical altercation that escalated to additional
violence. Based on these facts, the court denied the Batson/Wheeler motion.
       The standard for reviewing a Batson/Wheeler motion is well established. State
and federal constitutional authority imposes a three-step inquiry: “First, the trial court
must determine whether the defendant has made a prima facie showing that the
prosecutor exercised a peremptory challenge based on race. Second, if the showing is
made, the burden shifts to the prosecutor to demonstrate that the challenges were
exercised for a race-neutral reason. Third, the court determines whether the defendant
has proven purposeful discrimination. The ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins
(2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional
claims. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
       The trial court’s determination that the prosecution’s motive for the challenge was
nondiscriminatory presents a question of fact, which we review using the substantial
evidence standard. (Hernandez v. New York (1991) 500 U.S. 352, 364–365; Lenix, supra,
44 Cal.4th at pp. 613-614.) Assessing the credibility of a prosecutor’s race-neutral
explanations is uniquely a function of the trial court. The court can measure the
credibility of a proffered rationale by a number of factors, including the prosecutor’s
demeanor, the reasonableness of the explanations, and whether they have some basis in
accepted trial strategy. (Id. at pp. 614-616, citing Miller-El v. Cockrell (2003) 537 U.S.
322, 338-339.)
       Here, defense counsel objected on the basis that the peremptory challenge of Juror
No. 2 was part of a pattern of discriminatory challenges. The issue can be analyzed two
ways. First, by expressly limiting the inquiry to Juror No. 2, the trial court impliedly
determined there was no prima facie case that any of the other challenges were
discriminatory. The court directly asked the prosecutor to “elaborate” as to Juror No. 2
and accepted the explanation that the instant case involved retaliation following a fight.
Juror No. 2 had admitted engaging in fights while in school, and the prosecutor did not


                                              5
want a juror who might offer explanations for why someone might retaliate after a fight.
Defendant makes no argument that the court erred in accepting the prosecutor’s
explanation for the challenge
       Second, the trial court may have determined the premise of defendant’s motion—
that the challenge of Juror No. 2 was part of a pattern of improper challenges—was not
correct, as Juror No. 2 was excused for a valid reason. Once the premise of the motion
was shown to be incorrect, the court was under no obligation to inquire further of the
prosecutor. Defense counsel clearly understood this point, as he did not object that the
court had failed to make a ruling as to the validity of the three other challenges. In fact,
defense counsel never identified the three other jurors, so the court had no basis on which
to determine if they were Hispanic and excused on the basis of ethnicity.
       We further note that in defendant’s opening brief, he makes no attempt to identify
which jurors he believes were in dispute based on the motion, nor does he argue that the
prosecutor excused any juror for an improper purpose. Defendant has failed to sustain
his burden of demonstrating prejudicial error.


Denial of Mistrial Motion


       The prosecutor unsuccessfully moved prior to trial to admit evidence that
defendant was a gang member. The trial court excluded any mention of gang evidence.
However, an officer testified that Camacho had explained she sent a text message to
Duran indicating defendant was coming to kill Johnson because they had just fought and
defendant looked like a gang member. The court admonished the jury to only consider
the statement for the limited purpose of explaining why Camacho sent the text message.
The jury was told not to conclude that defendant was a gang member or that he has a
propensity to commit crimes. The court denied a motion by defendant to strike the
evidence, as well as defendant’s subsequent motion for mistrial. In its formal instructions
to the jury, the court specifically advised the jurors of the limited purpose of the
evidence.


                                              6
       Defendant now argues the trial court erred in various ways. First, defense counsel
had requested to approach the bench before the officer testified to Camacho’s belief that
defendant was a gang member, but the court had improperly denied the request. Second,
gang evidence is inherently prejudicial, it should not be admitted unless relevant to an
issue in dispute, and there was no evidence of gang activity or motive in this case. Third,
Camacho’s belief about defendant’s status as a gang member had minimal relevance in
the case. Fourth, the court’s admonition to the jury was insufficient to negate the
incurable harm of the testimony. And fifth, the court compounded the error by admitting
a photograph of defendant at the time of his arrest that revealed his tattoos.
       There is no necessity to address the merits of defendant’s various contentions, as
any error was nonprejudicial under both state and federal law. (People v. Watson (1956)
46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.) Camacho’s belief
that defendant looked like a gang member was no more than a brief statement of her
opinion in a lengthy trial. The tattoos were never identified to the jury as showing gang
affiliation or membership, and there was no reference to gang motivation during the
presentation of evidence or in argument to the jury. The jury was admonished both
during trial and in formal instructions5 of the limited purpose of the evidence. “We
presume that jurors comprehend and accept the court’s directions. [Citation.] We can, of
course, do nothing else. The crucial assumption underlying our constitutional system of
trial by jury is that jurors generally understand and faithfully follow instructions.’
(People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)” (People v. Homick (2012) 55
Cal.4th 816, 867.)



       5 Pursuant to CALCRIM No. 1403, the jury was instructed that defendant “has
been referred to as a gang member. This evidence was not admitted for the truth of the
matter asserted. In other words, it was not admitted to prove defendant is a gang
member. [¶] You may consider this evidence only for the limited purpose of explaining
what may have motivated a witness to refer to the defendant in such a manner. [¶] You
may not consider this evidence for any other purpose. You may not conclude from this
evidence that defendant is a person of bad character or that he has a disposition to commit
crime.”


                                              7
       Moreover, this was not a close case. There is no dispute in the evidence that
defendant fought with Johnson, and that Johnson prevailed in the fight, providing
defendant with a strong motive to retaliate. Camacho saw and heard defendant, which
alarmed her sufficiently to text Duran about the threat defendant posed to Johnson.
Butler saw defendant drive and stop at the location of Johnson’s apartment, where the
shooting occurred. Johnson saw defendant, face-to-face, at the time of the shooting.
Johnson promptly told Duran and an officer he had been shot by defendant. In the
hospital, Johnson identified defendant’s photograph as the shooter.
       Finally, the jury deliberations are consistent with the conclusion defendant did not
suffer prejudice from the gang reference or the photo. The jury did not return an
immediate verdict, indicating it was not biased as a result of the gang reference or photo
showing tattoos. To the contrary, the jury asked for a rereading of testimony of
statements defendant made to medical personnel regarding who shot him. The jury also
requested a transcript of an officer’s testimony regarding the night of the incident,
although it later cancelled the request. The jury began deliberations at 9:33 a.m. and did
not indicate it had reached a verdict until 4:17 p.m.
       Taking into account all of the circumstances, we are satisfied there is no
reasonable probability under state law, or reasonable possibility under federal
constitutional law, of a result more favorable to defendant had the challenged evidence
not been admitted.




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                                   DISPOSITION


      The judgment is affirmed.



             KRIEGLER, J.


We concur:


             MOSK, Acting P. J.



             KUMAR, J.*




*     Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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