Filed 11/7/14 P. v. James CA1/3
Posted 11/7/14 as A140460; reposted under correct docket number, no change to text
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A140463
v.
SHAZZREEA JAMES,                                                         (Solano County
                                                                         Super. Ct. No. FCR290879)
         Defendant and Appellant.


         Defendant appeals her first degree burglary conviction. Her attorney has asked this
court for an independent review of the record pursuant to People v. Wende (1979) 25
Cal.3d 436. Defendant was informed of her right to file a supplemental brief, which she
has not done. Upon independent review of the record, we conclude no arguable issues are
presented for review and affirm the judgment.
                                                     Background
         Defendant was charged with one felony count of first degree burglary with a non-
accomplice present. (Pen. Code, § 459.) Prior to trial, she moved pursuant to Penal Code
section 1538.5, subdivision (f) to suppress evidence, including wire cutters, found in her
possession at the time of her arrest. Following a hearing her motion was denied.
         During voir dire, defendant made two Batson/Wheeler1 motions. In denying both
motions, the court found that defendant had not made a prima facie showing of


1
    Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258.


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discriminatory exclusion and that, in any event, the prosecutor’s reasonable explanations
for excluding the potential jurors were race neutral and genuine.
       At trial, the victim testified that he heard a noise downstairs in his home and when
he went to investigate he discovered defendant in his living room. He pointed his gun at
her and ordered her to get on the floor while he dialed 911. The victim allowed defendant
to leave the house after she told him that the victim’s niece was waiting outside and that
it was his niece that told her to come into the house. The victim followed defendant
outside but did not see his niece. When defendant began to run, the victim followed her
until he heard police sirens. Shortly thereafter, officers located and arrested defendant.
In response to police questioning, defendant acknowledged having been in the victim’s
house but refused to explain why she was there, claiming that she did not want to get
anyone else in trouble. In the recording of the 9-1-1 call that was played for the jury,
defendant can be heard saying “Please don’t shoot me. Your niece, your niece told me to
come in here” and she “told me to come here. She’s right here, she’s right out there.”
       The jury found defendant guilty as charged. Prior to sentencing, defendant filed a
motion for a new trial based on the alleged misconduct of Juror No. 2. The motion
alleged that Juror No. 2 failed to indicate on his questionnaire and in response to
questioning during voir dire that he had been the defendant in a prior domestic violence
case and that a warrant had been issued for his arrest in another county. In opposition to
the motion, the prosecution submitted the juror’s declaration in which he explained that
“after my success[ful] completion of the deferred entry of judgment, the case was
expunged and was treated as if it never happened.” He also claimed that he did not bring
up his prior criminal case with the other jurors. The trial court denied the motion finding
that there was no “ill intent or misconduct” by the prospective juror and that even if there
was misconduct it was not prejudicial. Defendant was sentenced to four years in state
prison. Defendant timely filed a notice of appeal.
                                        Discussion
       Pursuant to Anders v. California (1967) 386 U.S. 738, 744, appellate counsel has
identified the following possible, but not arguable, issues to assist us in conducting our


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Wende review: 1. “Was the appellant prejudiced by Juror No. 2’s misconduct where Juror
No. 2 made materially false statements on the juror questionnaire and during voir dire
and Juror No. 2 was selected to be the jury foreperson?” 2. “Was the appellant, who is
African-American, prejudiced when the prosecutor used two of his six peremptory
challenges to exclude jurors that were persons of color?”
       We find no prejudice with respect to Juror No. 2’s failure to reveal his prior
experiences with the criminal justice system. His failure to reveal the information
apparently was inadvertent and understandable. Even if the juror was guilty of
misconduct, which raised a presumption of prejudice, such prejudice was rebutted in this
case. (In re Hitchings (1993) 6 Cal.4th 97, 119 [“This presumption . . . ‘ “may be rebutted
by an affirmative evidentiary showing that prejudice does not exist or by a reviewing
court's examination of the entire record to determine whether there is a reasonable
probability of actual harm to the complaining party [resulting from the
misconduct].” ’ ”].) The trial court concluded there was no actual harm in this case. We
see no basis to question such a finding. Defendant did not share his experiences with the
other jurors. He stated in his declaration that he had no bias against defendant, which in
all events was not a likely consequence of the prior proceedings against him.
       We find no error in the court’s denial of defendant’s Batson/Wheeler motion. It is
defendant’s burden to make as complete a record as possible when attempting to establish
a prima facie case in support of her Batson/Wheeler motion. (People v. Farnam (2002) 28
Cal.4th 107, 135; People v. Morris (2003) 107 Cal.App.4th 402, 409.) Defendant failed
to make such a record in this case, and the limited record before us fails to give rise to an
inference of discrimination. The record establishes only that defendant is African-
American and that the two excused jurors were part of a minority group, possibly
African-American. The record also establishes, albeit ambiguously, that there were “still
African-Americans remaining” either in the venire or on the jury panel when the motion
was made. In addition, the explanations given for excusing each of the jurors were both
reasonable and race neutral. The first potential juror was excused because she was a
“social services program assistant” and the prosecutor believed she would be


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“sympathetic towards other people.” The second was excused because he believed his
uncle had been “wrongly accused of [a] crime or mistreated by the criminal justice
system.”
       The court did not err in denying defendant’s motion to suppress. The evidence was
seized following her lawful detention and arrest.
       Defendant was adequately represented by trial throughout the proceedings and the
sentence imposed was in all respects lawful.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                       Disposition
       The judgment is affirmed.



                                                    _________________________
                                                    Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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