Filed 6/16/14 P. v. Broxton CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C069245

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F02291)

         v.

JOHN BROXTON,

                   Defendant and Appellant.




         Defendant John Broxton was convicted of three counts of second degree robbery
and sentenced to a state prison term of 17 years 8 months. In this appeal, he contends (1)
the trial court erred when it denied his Batson/Wheeler1 motion on the ground he failed to
establish a prima facie inference of discriminatory purpose; (2) insufficient evidence




1     Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).

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supports one of his robbery convictions; and (3) a live lineup identification process
violated his due process rights. We disagree and affirm the judgment.
                                          FACTS
       Robbery of Richard Conner
       As Richard Conner pulled into a Jimboy’s Tacos parking lot to drop off two
women passengers, three young Black men approached his car. They were dressed in
dark clothing. Conner noticed another man in a white sweatshirt standing about 20 or 30
feet away. The men opened his passenger side car doors, ordered the women to leave,
and robbed Conner. One of the men showed Conner that he had a gun and said that “he
hadn’t used [the gun] yet, [but] he’d like to try it out.” Conner was told he would be shot
if he looked at anybody. One of them also told Conner he would be shot if he did not
give them the correct PIN for his ATM card. Conner did not recall seeing the man in the
white sweatshirt after his ATM card was taken.
       Conner called his bank upon arriving home and learned his ATM card had been
used at a credit union within a mile of Jimboy’s. Surveillance photos taken at the credit
union showed a man in a white or light sweatshirt similar to the one Conner saw the man
wearing who stood nearby during the robbery. The parties stipulated defendant was the
person in the photos that used Conner’s ATM card.
       Robbery of Zachary Basten and Andrew Santellan
       About one month after the Conner robbery, Zachary Basten and Andrew Santellan
drove through the same Jimboy’s drive-through. A man sitting on the curb asked Basten
to use his phone. Basten declined, but he agreed to help jumpstart the man’s car. The
man, later identified as codefendant Mark Newsome, got into the back of Basten’s truck
and directed them to a nearby apartment complex. When they arrived, Newsome
whistled, and three or four people ran towards them. They were all Black males wearing
dark, hooded clothing, and they had handguns. Defendant was one of them. One of the
men tapped on the passenger window with a gun. He opened the door, reached into

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Santellan’s pocket, and took his cell phone. He told Santellan to sit on a nearby fire
hydrant.
       Newsome pointed a gun at Basten and robbed him. Newsome threatened to kill
Basten if he gave him an incorrect PIN for his ATM card. After Basten gave him the
PIN, Newsome gave the ATM card to defendant, who immediately left with another man.
About 20 minutes later, defendant and the other man returned and asked why they could
get only $200 out of Basten’s account. Defendant’s handgun dangled at his side and
moved with his hand as he talked.
       Basten called his bank the next day, and he learned his ATM had been used at a
Powermart 30 yards from the Jimboy’s. Pictures taken from the store’s surveillance
video showed a man who “very closely depicted” defendant.
       Three weeks later, Basten identified defendant in a live lineup. He also identified
him at trial.
                                      DISCUSSION
                                              I
                             Denial of Batson/Wheeler Motion
       Defendant, who is Black, raised a Batson/Wheeler objection after the prosecutor
used his peremptory challenges to excuse two Black jurors from the venire. Defense
counsel argued the excused jurors had not shown a predisposition to be pro-defense
jurors and, in his opinion, appeared to be pro-prosecution. The trial court found
defendant had not made a prima facie case of discrimination because two other Black
jurors remained in the venire. After making this finding, the court said it felt the two
excused jurors were fair jurors who had offered no responses in its view to support
exclusion, and that one of the jurors may have been pro-prosecution.
       The court gave the prosecutor a chance to place his reasons on the record. The
prosecutor stated he was concerned with family involvement in the criminal justice
system. The concern arose the day before with a White juror, but it was something he

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considered with all prospective jurors. Both excused jurors had relatives who had
previously been convicted of serious crimes; one, a nephew convicted of second degree
murder, the other, a brother convicted of attempted murder. The prosecutor believed no
remaining jurors had family members who had been through the trial or penal systems.
The court did not change its ruling.
       Defendant claims the court erred. He contends he established a prima facie case
of an inference of racial bias. He also claims California law, which allows the appellate
court to review the entire record for evidence to support the trial court’s denial of a
Batson/Wheeler motion, is contrary to federal authority that allegedly limits the court to
reviewing only the prosecutor’s reasons for excusing the jurors. We disagree with both
of his contentions.
       “The applicable law is settled. ‘Under Wheeler, “ ‘[a] prosecutor’s use of
peremptory challenges to strike prospective jurors on the basis of group bias -- that is,
bias against “members of an identifiable group distinguished on racial, religious, ethnic,
or similar grounds” -- violates the right of a criminal defendant to trial by a jury drawn
from a representative cross-section of the community under article I, section 16 of the
state Constitution. [Citations.]’ ” [Citation.] Such a practice also violates the
defendant’s right to equal protection under the Fourteenth Amendment. [Citations.]
       “ ‘In ruling on a motion challenging the exercise of peremptory strikes, the trial
court follows a three-step procedure. “First, the defendant must make out a prima facie
case ‘by showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima
facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by
offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then decide . . . whether the
opponent of the strike has proved purposeful racial discrimination.’ [Citation.]”
([Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129] (Johnson)], fn.

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omitted.)’ (People v. Streeter (2012) 54 Cal.4th 205, 221 [].) The United States Supreme
Court did not intend a movant’s burden at the first, prima facie, stage ‘to be so onerous
that a defendant would have to persuade the judge -- on the basis of all the facts, some of
which are impossible for the defendant to know with certainty -- that the challenge was
more likely than not the product of purposeful discrimination. Instead, a defendant
satisfies the requirements of Batson's first step by producing evidence sufficient to permit
the trial judge to draw an inference that discrimination has occurred.’ (Johnson, supra,
545 U.S. at p. 170.)” (People v. Harris (2013) 57 Cal.4th 804, 833 (Harris).)
       “Although a prima facie showing may be made from any evidence in the record,
we have noted ‘certain types of evidence that will be relevant for this purpose. Thus the
party may show that [opposing counsel] has struck most or all of the members of the
identified group from the venire, or has used a disproportionate number of . . .
peremptories against the group. [The moving party] may also demonstrate that the jurors
in question share only this one characteristic -- their membership in the group -- and that
in all other respects they are as heterogeneous as the community as a whole. Next, the
showing may be supplemented when appropriate by such circumstances as the failure of
[opposing counsel] to engage these same jurors in more than desultory voir dire, or
indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member
of the excluded group in order to complain of a violation of the representative cross-
section rule; yet if [the defendant] is, and especially if in addition [the] alleged victim is a
member of the group to which the majority of the remaining jurors belong, these facts
may also be called to the court's attention.’ (Wheeler, supra, 22 Cal.3d at pp. 280-281,
fn. omitted.)” (Harris, supra, 57 Cal.4th at pp. 834-835.)
       We review the record independently to determine if defendant’s evidence raised
an inference the prosecutor excused the jurors on account of race. (Harris, supra, 57
Cal.4th at p. 834.)



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       Defendant’s evidence did not raise an inference of group bias. The release of two
Black jurors, with nothing more, while two more Black jurors remain in the venire, is
insufficient evidence to support an inference of discriminatory intent. Defendant did not
contend the prosecutor, for example, had used a disproportionate number of peremptories
against Blacks, or had failed to engage the excused jurors in meaningful voir dire. He
also could not show the excused jurors were, except for their race, as heterogeneous as
the venire. They had family members who had been convicted of very serious crimes.
This was a race-neutral reason for excusing the jurors. It is true that “ ‘ “the exclusion of
a single prospective juror may be the product of an improper group bias. As a practical
matter, however, the challenge of one or two jurors can rarely suggest a pattern of
impermissible exclusion.” ’ [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 343,
original italics, fn. omitted.) So it is here.
       Defendant criticizes the practice under California law of reviewing the entire
record to find substantial evidence that supports the trial court’s ruling, claiming it
violates federal law. Our Supreme Court, however, requires a reviewing court to limit its
review to the genuineness of the prosecutor’s reasons when it is reviewing the second and
third steps of the Batson/Wheeler analysis, after the defendant has established a prima
facie case of discriminatory intent. (People v. Jones (2013) 57 Cal.4th 899, 917.) The
first step is a question of law, which justifies our review of the entire record to find
support for the trial court’s determination as to whether a prima facie case exists. (People
v. Taylor (2010) 48 Cal.4th 574, 614.) We are bound to comply with the high court’s
rulings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       The trial court did not err in denying defendant’s Batson/Wheeler motion.
                                                 II
            Sufficiency of Evidence Supporting Conviction of Robbing Conner
       Defendant contends there is insufficient evidence to convict him of aiding and
abetting the robbery of Conner. Conner did not see him facilitate the robbery, and there

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is no evidence defendant arrived with the other perpetrators or met up with them again
after he used Conner’s ATM card. We disagree with his contention.
       “Whether a person has aided and abetted in the commission of a crime is a
question of fact, and on appeal all conflicts in the evidence and attendant reasonable
inferences are resolved in favor of the judgment. Among the factors which may be
considered in determining aiding and abetting are: presence at the crime scene,
companionship, and conduct before and after the offense.” (In re Juan G. (2003) 112
Cal.App.4th 1, 5, fns. omitted.)
       There is sufficient evidence supporting defendant’s conviction. Defendant was
waiting in the same parking lot as the other men, and was only 20 or 30 feet away from
where they robbed Conner. Conner was told he would be shot if he looked at anyone,
suggesting defendant was standing back so as to avoid identification. Defendant was
present in the lot only until Conner’s ATM card was taken. Minutes later, a surveillance
camera photographed defendant using that same card at a nearby credit union. This
evidence indicates defendant was not a bystander to the robbery, but in fact participated
in its commission. The evidence sufficiently supports defendant’s conviction of robbing
Conner.
                                               III
                                   Validity of the Live Lineup
       Defendant contends the process by which Basten identified him at the live lineup
was unduly suggestive. Defendant did not object to Basten’s identification of him at the
lineup or at trial until he made an oral motion for new trial. Raising an error for the first
time in a motion for new trial is insufficient to preserve the issue for appeal. (People v.
Dykes (2009) 46 Cal.4th 731, 794.) Having thus forfeited the issue, defendant contends
he suffered ineffective assistance of counsel due to his attorney’s failure to object. We
conclude he did not, because any objection would have been futile. Counsel’s failure to



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make a futile or unmeritorious objection is not ineffective assistance. (People v.
Anderson (2001) 25 Cal.4th 543, 587.)
       The facts of the identification are these: About three weeks after his robbery,
Basten viewed a live lineup. He did not recall being shown a picture of defendant before
the lineup, but the officiating detective claimed he showed Basten a picture of defendant
from the Powermart surveillance video before the lineup. Also, during the lineup,
defendant, who is five feet seven inches tall, was asked to stand on a box so that the
suspects’ heads were all at the same level. Basten did not know defendant was standing
on a box. None of the suspects’ feet were visible to Basten.
       Basten viewed the lineup, and he identified defendant as the person who took his
ATM card and obtained the money with it. At trial, Basten stated he had estimated
defendant was roughly six feet tall. After defendant stood up, Basten estimated his height
was between five feet eight inches and five feet ten inches. Basten did not doubt his
identifications made during the lineup and in the courtroom of defendant as the
perpetrator.
       Defendant contends counsel should have objected to the lineup identification
because the lineup was unduly suggestive and unreliable under the totality of the
circumstances. He claims it was unduly suggestive because the detective showed Basten
defendant’s photo from the surveillance video before the lineup, and because defendant
was placed on a box to raise his height to match the other persons in the lineup. He
contends it was unreliable because Basten, at the time of the robbery, had little time to
see defendant, it was dark, and there were three to four Black males obscuring their faces
with hoods.
       We disagree. An objection to the identification would not reasonably have been
sustained. “In order to determine whether the admission of identification evidence
violates a defendant’s right to due process of law, we consider (1) whether the
identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether

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the identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
identification. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
          The lineup was neither unduly suggestive nor unreliable, and thus an objection
would not have been well taken. Permitting a witness to view a surveillance photograph
of the crime prior to the lineup does not necessarily render the lineup unduly suggestive.
(See People v. Johnson (2010) 183 Cal.App.4th 253, 273 [prior showing of robbery
surveillance video did not taint photo lineup].) The actual photo shown to Basten is not
included in the record, so we are unable to determine whether it may have been unduly
suggestive. Also, eliminating individual factors in the lineup such as height to prevent a
suspect from standing out from the others does not render the lineup unduly suggestive
(People v. DeSantis (1992) 2 Cal.4th 1198, 1223-1224), particularly where, as here, the
box on which defendant stood was not visible.
          Even if the lineup was unduly suggestive, Batson’s identification of defendant was
not unreliable. Basten had sufficient opportunity to observe defendant. During the
robbery, defendant had stood five to 10 yards away, and Basten was able to see his face
and identify him as one of the men who left the lot with his ATM card and later returned.
Basten paid attention to defendant’s actions, he was certain about his identification when
he viewed the lineup, and only a short period of time elapsed from the crime to the
lineup.
          Because an objection by counsel to the identification under these circumstances
would not reasonably have been sustained, defendant did not suffer ineffective assistance
of counsel.



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                                 DISPOSITION
     The judgment is affirmed.



                                               NICHOLSON   , Acting P. J.



We concur:



     ROBIE              , J.



     BUTZ               , J.




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