P. v. Washington

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Filed 12/19/06 P. v. Washington CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DANTE YMAINE WASHINGTON,
Defendant and Appellant.
A109989
(Solano County
Super. Ct. No. 212976)
I. INTRODUCTION
Dante Washington was convicted by a jury of evading an officer with willful
disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a) [count
one]), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a) [count
two]), carjacking (Pen. Code, § 215, subd. (a) [count three]), and assault with a deadly
weapon, to wit, an automobile (Pen. Code, § 245, subd. (a)(1) [count four]). The jury
also found true allegations that Washington personally used a firearm when he unlawfully
took a vehicle and committed the carjacking. Washington was sentenced to an aggregate
term of 19 years in prison.
On appeal, Washington contends (1) the carjacking charge should have been
dismissed because this alleged offense was committed in a different county, (2) the
prosecutor used peremptory challenges to exclude African-Americans from the jury in
violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), (3) the trial court
committed prejudicial error by admitting evidence of an uncharged crime and (4) he is
entitled to a new sentencing hearing. We reject these claims and, therefore, affirm.

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II. STATEMENT OF FACTS
A. Events of December 31, 2003
On the afternoon of December 31, 2003, Maceo Wiggins was driving his father’s
black 1994 BMW. At some time between 4:00 and 4:30 p.m., Wiggins parked in a
residential area in Berkeley near the corner of Seventh and Hearst Streets. Holding a cup
of coffee, Wiggins exited the car and locked it. While standing on the sidewalk near the
car, Wiggins noticed a man cross the street and walk toward him. As he approached, the
man grabbed Wiggins and pointed a gun at his face, only a few inches from his head.
The man said, “Give me the keys, nigga.” Wiggins, who was shocked and scared,
handed over the keys and then complied with the man’s order to turn over his wallet.
The man then unlocked the BMW, got inside and drove away. Wiggins called 911 on his
cell phone, gave a detailed description of the carjacker, and reported he was driving up
University Avenue.
Berkeley Police Officer Van Huynh was patrolling in West Berkeley when he
heard a radio report that Wiggins had been carjacked. Huynh was a few miles from
University Avenue when he spotted and began to follow a black BMW proceeding
toward an on-ramp to Interstate 80. The license plate of the vehicle matched that of the
car that had just been carjacked and Huynh was able to see the driver who also matched
the description of the carjacker. Once on the freeway, the driver of the BMW accelerated
and swerved and weaved around traffic. Huynh, who was driving a marked police
cruiser, activated his emergency lights and siren. As the BMW approached the junction
for Interstate 580, the driver was weaving through traffic at about 85 miles per hour. He
swerved abruptly onto the 580, headed toward Richmond, driving recklessly at
approximately 120 miles per hour.
The BMW stayed on Interstate 580 for approximately four miles during which
time the driver used the right shoulder of the highway to pass vehicles and appeared to
begin to exit at several off-ramps but would then swerve back into traffic. Finally, the
BMW driver exited the freeway at Harbor Way, driving approximately 100 miles per

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hour and then braking hard. Officer Huynh followed the car off the freeway but lost sight
of it after the driver made a series of quick turns.
B. The January 2, 2004, Incident
On the afternoon of January 2, 2004, Highway Patrol Officer Kerri Alleman
noticed a black BMW make an unsafe lane change while driving westbound on Interstate
80 in Fairfield. Alleman, who was in uniform and driving a white patrol car, maneuvered
behind the BMW and activated her red spotlight and her red and blue LED lights. When
the driver of the BMW declined to pull over and stop, Alleman activated her regular siren
and her very high-pitched on-and-off siren. Still the car did not stop. Nor did the driver
stop when a second Highway Patrol officer pulled in behind Alleman and activated his
lights and siren. As the BMW passed Highway 37 a Highway Patrol helicopter reported
that it was overhead. A third Highway Patrol officer joined the pursuit in Vallejo.
Erratically and without signaling, the BMW driver cut back and forth across the
freeway and reached speeds in excess of 100 miles per hour. Other drivers were forced
to brake and swerve to avoid the BMW. The BMW almost hit several cars, repeatedly
forced vehicles out of their lanes and drove on the shoulder of the highway at
dangerously high speeds. As the car approached Georgia Street, it appeared as though
the driver was going to exit. Instead, he drove on the shoulder at about 85 to 90 miles per
hour, swerved back onto the roadway, lost control and crashed into the center divide just
west of the Interstate 780 interchange. Another car was damaged and sat in the center
divide of the highway.
Washington emerged from the BMW and began walking eastbound in the
westbound center divide away from the BMW. Highway Patrol officers drew their guns
and instructed Washington to stop and put his hands in the air. Washington raised his
hands but kept asking things like “What did I do? What’s wrong? Why are you doing
this to me? I just got in an accident.” Washington kept walking notwithstanding that an
officer who was facing him repeatedly yelled at him to stop and get on the ground. It
appeared Washington was inching closer to the center divider, which was only about
three feet high, and might try to flee. At that point, the officer holstered his weapon and

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he and another officer ran up to Washington, forced him to the ground and handcuffed
him.
C. Police Investigation
Washington told police that, although he may have been driving fast, he did not
realize that the Highway Patrol officers were following him and he was not trying to flee
from them. Washington stated he did not commit a carjacking and he did not have a gun.
He claimed he did not steal the BMW and did not know it had been stolen. Washington
told police that he bought the BMW for cash and that the registration and pink slip, which
were in the car, proved that the car was his. Washington refused to provide the name of
the person who allegedly sold him the car. He also gave inconsistent information about
when he purchased the car.
On January 5, 2004, Maceo Wiggins selected Washington’s picture from a photo
lineup, identifying him as the man who had committed the carjacking on December 31,
2003.1
On January 6, 2004, police searched the homes of Washington’s mother and sister.
They did not find any property that had been taken from Wiggins or any clothing that
matched the description of the carjacker’s clothes. The police did find a .25 caliber bullet
in the home of Washington’s sister, Tameka Washington. Tameka told police that the
bullet was not hers and that she did not know whose it was. Tameka said that
Washington stayed with her on occasion and that he had access to her home. She told
police that Washington had no money and no job and that, when she asked Washington
how he obtained the BMW, he responded that it was none of her business.
D. The Gun Evidence
Wiggins testified at trial that there was no doubt in his mind that the gun
Washington pointed at him on December 31, 2003, was real. He described it as “not a
huge gun, about maybe six-inches long, silver or nickel-plated, automatic handgun. It
wasn’t a revolver, moderate to small caliber. It wasn’t anything big like a .45 or a 9-
1 Wiggins also identified Washington at trial.

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millimeter handgun.” Wiggins thought that the gun was a .25 caliber pistol or maybe a
.38 but not larger than that. He was sure that the gun was an automatic weapon and not a
revolver. Wiggins testified that the gun fit comfortably into Washington’s hand, and did
not extend more than an inch or two beyond his fingers.2
The prosecution presented evidence that, on December 30, 2003, Washington was
seen with a handgun matching the description of the gun that Wiggins had provided. On
the afternoon of December 30, at around 4:00 p.m., two 15-year-old boys and their friend
were walking down the street in Berkeley not far from where Wiggins was carjacked the
next day. A man approached them and pointed a gun at one of the friends. Both
teenagers identified Washington as the man who they saw with a gun on December 30.
At trial, one boy, who was certain the gun was real, described Washington’s gun as a
small, silver automatic weapon with curved edges. He said the gun fit in Washington’s
hand and extended only about an inch or two beyond his fingers. The other boy, who
also believed the gun was real, described it as small and silver.
III. DISCUSSION
A. Motion to Dismiss Carjacking Charge
Prior to trial, Washington filed a motion to dismiss the carjacking charge on the
ground that Solano County did not have jurisdiction to hear the charge because the acts
supporting it occurred outside the county. Initially, the court ruled that the events relating
to the carjacking were not sufficiently interconnected to the events in Solano County and
that the “proper county for the carjacking would be Alameda County.” However, after
reconsidering the matter and reviewing the pertinent authority, the court changed its
original ruling and denied Washington’s motion.
Washington contends his motion to dismiss should have been granted because the
only proper venue for the carjacking charge was Alameda, the county where the alleged
offense occurred. We disagree. “Although under [Penal Code] section 777 the county in
2 Wiggins had obtained knowledge about guns from the Boy Scouts, from reading
about weapons and from having handled handguns before.

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which a felony was committed is, in the absence of another statute, the locale designated
as the place for trial, in California numerous statutes—applicable to particular crimes or
in specified circumstances—long have authorized the trial of a criminal proceeding in a
county other than the county in which the offense itself occurred.” (People v. Simon
(2001) 25 Cal.4th 1082, 1094.) In the present case, Penal Code section 786, subdivision
(a) (section 786(a)) authorized the trial of the carjacking charge in Solano County.
Section 786(a) states: “When property taken in one jurisdictional territory by
burglary, carjacking, robbery, theft, or embezzlement has been brought into another, or
when property is received in one jurisdictional territory with the knowledge that it has
been stolen or embezzled, and the property was stolen or embezzled in another
jurisdictional territory, the jurisdiction of the offense is in any competent court within
either jurisdictional territory, or any contiguous jurisdictional territory if the arrest is
made within the contiguous territory, the prosecution secures on the record the
defendant’s knowing, voluntary, and intelligent waiver of the right of vicinage, and the
defendant is charged with one or more property crimes in the arresting territory.” (Italics
added.)
The italicized language above applies squarely to the facts presented here and
expressly authorized the trial of the carjacking charge in Solano County. Washington
does not share our straightforward reading of this statute. Instead, he maintains that
section 786(a) authorizes the trial of a carjacking charge in a county other than the county
where the crime was committed only if the defendant waives his right of vicinage, 3 which
Washington did not do in this case. In other words, Washington interprets the language
in the later part of section 786(a) requiring a waiver of vicinage rights as applying to the
3 “The right to a jury of the vicinage is distinct from venue: vicinage refers to the
geographical area from which the jury is summoned whereas venue is the place of trial.
[Citation.] However, ‘[a]s a practical matter, vicinage usually follows venue.’ [Citation.]
In California, the boundaries of vicinage are conterminous with the boundaries of the
county. [Citation.] Although the vicinage right is assertable by a defendant in a criminal
trial, it also protects the right of the offended community to pass judgment in criminal
matters. [Citation.]” (People v. Tamble (1992) 5 Cal.App.4th 815, 819-820 (Tamble).)

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entire statute and not just to the prosecution of offenses in a “contiguous jurisdictional
territory.” This proposed interpretation of section 786(a) was rejected in Tamble, supra,
5 Cal.App.4th 815.
Tamble held that a defendant accused of committing burglary and theft in San Luis
Obispo and of taking stolen property into Santa Barbara could properly be prosecuted for
the burglary and theft in Santa Barbara County pursuant to section 786(a). (Tamble,
supra, 5 Cal.App.4th at pp. 818-821.) In reaching this decision, the court rejected the
defendant’s argument that section 786(a) required that he waive his right to vicinage.
The court based its holding on a thorough analysis of the history and purpose of section
786(a) which we only briefly summarize here.
Before it was amended in 1990, section 786(a) stated: “When property taken in
one jurisdictional territory by burglary, robbery, theft or embezzlement has been brought
into another, or when property is received in one jurisdictional territory with the
knowledge that it has been stolen or embezzled and such property was stolen or
embezzled in another jurisdictional territory, the jurisdiction of the offense is in any
competent court within either jurisdictional territory.” (See Tamble, supra, 5 Cal.App.4th
at p. 818.) The 1990 amendment added language which expanded the trial court’s venue
for these property crimes into contiguous jurisdictions and the condition that the
defendant waive the right of vicinage.4 Construing the new language in light of the
legislative purpose of both the statute and the amendment, the Tamble court concluded
that the Legislature did not intend to require a waiver of vicinage in a jurisdictional
territory in which such a wavier was not required prior to the amendment. (Id. at pp. 818,
820-821.)
4 The 1990 amendment inserted “ ‘or any contiguous jurisdictional territory if the
arrest is made within the contiguous territory, the prosecution secures on the record the
defendant’s knowing, voluntary, and intelligent, waiver of the right of vicinage and the
defendant is charged with one or more property crimes in the arresting territory.’ ” A
nonsubstantive change was also made. (See Historical and Statutory Notes, 50 West’s
Ann. Pen. Code (2006 supp.) foll. § 786, p. 38.)

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Since Tamble was decided, section 786(a) was amended again in 1993 to add
carjacking to the list of offenses subject to this statute. (Historical and Statutory Notes,
50 West’s Ann. Pen. Code (2006 supp.) foll. § 786, p. 38.) However, the Tamble court’s
analysis and interpretation of the language relating to a waiver of vicinage remains sound
and convinces us that Washington was not required to waive his vicinage rights before he
could be tried for the carjacking in Solano County, the jurisdictional territory into which
the defendant allegedly took the property he acquired by committing the carjacking.
Although Washington does not question the Tamble court’s reasoning, he attempts
to distinguish this case by arguing that the crime at issue here, carjacking, is substantively
different from robbery, the crime at issue in Tamble, because carjacking “is complete at
the time and place of the taking, relates to that location, and does not involve transitory
considerations.” This argument misses the mark. Nothing in the language of section
786(a) or in the Tamble opinion supports Washington’s proposal that the waiver
requirement be applied to certain types of offenses listed in the statute but not to others.
The sound interpretation of this statute, as explained in Tamble, is that a waiver of the
right of vicinage is required when a defendant is prosecuted in a contiguous jurisdictional
territory for any of the offense specified in the statute.
Washington argues that, even if a waiver of vicinage was not required, the trial
court abused its discretion by changing its original ruling and finding that Solano County
was the proper venue for this trial. According to Washington, the trial court changed its
ruling in order to facilitate the prosecutor’s nefarious plan to deprive Washington of a
jury of his peers by having the case against him tried in a county with a significantly
smaller African-American population. Because we find nothing in the record before us to
support this accusation, we summarily reject it.
B. The Wheeler Motion
1. Background
During jury selection, the prosecutor used a peremptory challenge to excuse a
prospective alternate juror and defense counsel responded with a request to make a
motion. The trial court acknowledged the request and indicated the matter would be

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addressed later. After jury selection was complete, the court excused the jury and met
with counsel. Defense counsel argued that the prosecutor violated Wheeler, supra, 22
Cal.3d 258, because at least three of the six peremptory challenges that the prosecutor
exercised were used to excuse African-Americans and, in defense counsel’s view, there
was no valid basis for excluding those potential jurors relative to other non-African-
Americans who were left on the jury.
The court responded to the motion by expressing an intention to clarify the record.
It stated that the prosecutor had used four peremptories during selection of the main jury
panel and two more challenges when selecting the alternates. The court noted that one of
the alternates the prosecutor excused was Raquel O., who was African-American, and
then stated: “And let me ask the People as to the reason for the peremptory on Raquel
[O.].”
The prosecutor replied that, before he was required to supply a reason, the
defendant had to make a prima facie showing that the prosecutor was removing potential
jurors because of their race or that he was targeting some specific group of people and
that such a showing had not been made. The prosecutor noted, among other things, there
were at least three African-American jurors on the jury panel and that some of the jurors
he had challenged were other races besides African-American.
The trial court stated that it “tend[ed] to agree” with the prosecutor that a prima
facie case had not been made. Defense counsel responded that half or more of the
persons the prosecutor excluded were African-American. The court countered that there
were reasons for the challenges and defense counsel disagreed. After further discussion,
the court stated: “Well, let me do this, my feeling is there hasn’t been a prima facie
showing. But to protect the record, let me ask [the prosecutor] why you knocked off
Raquel O. as an alternate?”
The prosecutor stated that he excused Raquel O. for two reasons, first, because she
said she was thinking about being a police officer, and second because she said she had
bad experiences with police. As to the second reason, the prosecutor noted that Raquel
O. shared that she had been pulled over in a neighborhood in which she lived and she

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could not understand why she was pulled over. The prosecutor went on to provide
reasons for excusing two African-American people from the main jury panel. The first
potential juror, Ms. J., was excused because she said she thought police reports she had
seen in the past were inaccurate. The prosecutor interpreted her comments as admitting
that she did not have faith in the way the police did their job. The other African-
American that the prosecutor excused, Mr. J., shared an experience when he was falsely
accused of a crime. The prosecutor said the situation was similar to the present case and
it struck him that this person “was not a good person to leave on this jury.”
At that point, the court made the following ruling: “Yeah, I think—you know, I
don’t see any Wheeler violation, whatsoever. But I did want to protect the record so that
it does show that the persons who were peremptories by the People, Simona [J.] for the
reasons just stated, Brandon [J.] for the reason stated, and Raquel O. So the record will
so reflect.”
2. Guiding Principles and Standard of Review
“[T]he use of peremptory challenges by a prosecutor to strike prospective jurors
on the basis of group membership violates the right of a criminal defendant to trial by a
jury drawn from a representative cross-section of the community under article 1, section
16 of the California Constitution.” (People v. Alvarez (1996) 14 Cal.4th 155, 192; see
also Wheeler, supra, 22 Cal.3d at p. 272.) Discrimination in the exercise of peremptory
challenges also violates the defendant’s federal constitutional rights to equal protection.
(Batson v. Kentucky (1986) 476 U.S. 79, 84-89.)
There is a presumption that a prosecutor uses his peremptory challenges in a
constitutional manner. (Wheeler, supra, 22 Cal.3d at p. 278; People v. Alvarez, supra, 14
Cal.4th at p. 193.) Therefore, a defendant who believes the prosecutor is using
peremptory challenges to strike prospective jurors on the ground of group bias alone
carries the burden of establishing a prima facie case of purposeful discrimination.
(People v. Arias (1996) 13 Cal.4th 92, 134-135; People v. Gutierrez (2002) 28 Cal.4th
1083, 1122; People v. Alvarez, supra, 14 Cal.4th at p. 193.)

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A three-step procedure applies “when a defendant objects at trial that the
prosecution exercised its peremptory challenges discriminatorily. ‘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.]’ ” (People v. Johnson (2006) 38 Cal.4th 1096, 1099 quoting
from Johnson v. California (2006) 545 U.S. ___[125 S. Ct. at p. 2416], fn. omitted.)
“When a trial court denies a Wheeler motion with a finding that the defendant
failed to establish a prima facie case of purposeful discrimination, we review the record
on appeal to determine whether there is substantial evidence to support the ruling.”
(People v. Griffin (2004) 33 Cal.4th 536, 555.)
If the defendant establishes a prima facie case, the burden shifts to the prosecution
to provide non-discriminatory reasons for the peremptory challenges in question. “The
prosecutor need only identify facially valid race-neutral reasons why the prospective
jurors were excused. [Citations.] The explanations need not justify a challenge for
cause. [Citation.] ‘Jurors may be excused based on “hunches” and even “arbitrary”
exclusion is permissible, so long as the reasons are not based on impermissible group
bias. [Citation.]’ ” (People v. Gutierrez, supra, 28 Cal.4th at p. 1122.) “The
determination whether substantial evidence exits to support the prosecutor’s assertion of
a nondiscriminatory purpose is a ‘purely factual question.’ ” (People v. Ervin (2000) 22
Cal.4th 48, 74-75.)
“The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective
genuineness of the race-neutral reasons given for the peremptory challenge, not on the
objective reasonableness of those reasons.” (People v. Reynoso (2003) 31 Cal.4th 903,
924.) “[T]he issue comes down to whether the trial court finds the prosecutor’s race-
neutral explanations to be credible.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 339.)

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“‘ ‘ “If the trial court makes a ‘sincere and reasoned effort’ to evaluate the
nondiscriminatory justifications offered, its conclusions are entitled to deference on
appeal. . . .” [Citation.]’ ” (People v. Ervin supra, 22 Cal.4th at p. 75.)
3. Analysis
Washington’s first contention is that the trial court erred by making an implicit
finding that Washington waived his Wheeler claim as to the main jury panel by failing to
object until the selection of alternates. We reject this contention because the court did not
make a finding that the Wheeler claim was waived. When first asked to respond to the
Wheeler motion, the prosecutor stated that he had never seen a case where the motion
was brought after the main jury was impaneled. The court responded “[y]eah, I don’t
know about that either.” Then, the prosecutor returned to his primary point which was
that the defendant had not made a prima facie case. The prosecutor did not limit his
argument to the alternate, and the court’s ruling that a prima facie case had not been
made expressly referenced the two African-Americans who had been excused by the
prosecutor from the main jury panel.
Washington next contends that the trial court inferentially found that Washington
did make a prima facie case under Wheeler as to the alternate juror, Raquel O. He
maintains that the court impliedly made this finding by asking the prosecutor why he
challenged Raquel O.
A reviewing court may infer that the trial court made an implied finding on the
prima facie issue when the court solicited explanations from the prosecutor without first
indicating its views on the prima facie issue. (People v. Johnson (1989) 47 Cal.3d 1194,
1217; People v. Fuentes (1991) 54 Cal.3d 707, 716-717.) However, a finding that a
prima facie case has been made should not be inferred when the circumstances negate
such an inference. (People v. Arias, supra, 13 Cal.4th at p. 135.) For example, if a trial
court expresses that it doubts a defendant has made a prima facie showing, its subsequent
request that the prosecutor provide an explanation will not be construed as an implied
finding that a prima facie case has been established. (Ibid.)

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The circumstances presented here negate any inference that the trial court made an
implied finding that Washington established a prima facie case. The court’s initial
inquiry as to why the prosecutor excused Raquel O. was part of its effort to “clarify” the
record and was made before there had been any discussion of the defense obligation to
make a prima facie showing. Once the court was reminded of that defense obligation, its
remarks consistently reflected the view that Washington did not make a prima facie case.
Washington also contends that he did make a prima facie showing of purposeful
discrimination in the trial court. In order to establish a prima facie case, “ ‘the totality of
the relevant facts’ ” must support an inference of discriminatory purpose. (Johnson v.
California, supra, 125 S.Ct. at p. 2416.) As noted above, we review the trial court’s
finding that Washington did not make a prima facie case under the substantial evidence
standard of review. (People v. Griffin, supra, 33 Cal.4th at p. 555.) We find substantial
evidence does support the trial court’s ruling.
The record shows that the only actual fact defense counsel identified to support its
Wheeler claim was that three of the six potential jurors and alternates that the prosecutor
excused were African-American. To attempt to strengthen this fact, defense counsel also
argued that the voir dire of these individuals did not disclose any race neutral
explanations for excusing them.
The sole fact that challenges were used to excuse prospective jurors of a particular
race is not sufficient, by itself, to state a prima facie case. (People v. Box (2000) 23
Cal.4th 1153, 1188-1189; People v. Davenport (1995) 11 Cal.4th 1171, 1201.) Indeed,
even the removal of all members of a cognizable group, which did not happen here, is
not, standing alone, dispositive on the question of whether a defendant has established a
prima facie case of discrimination. (People v. Young (2005) 34 Cal.4th 1149, 1173, fn.
7.) Further, although also not dispositive, we note that the jury that was selected in this
case included three African-American jurors. 5 This circumstance could properly be
5 The presence of one or two members of a cognizable group on the panel does
not preclude the defendant from establishing a prima facie case with respect to jurors who

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viewed by the trial court as a strong indication of the prosecutor’s good faith in
exercising his peremptories. (People v. Turner (1994) 8 Cal.4th 137, 168; People v.
Snow (1987) 44 Cal.3d 216, 225.) In addition, defense counsel’s argument to the trial
court that there were no race-neutral reasons for excusing the three African-American
potential jurors could properly have been rejected by the trial court. As noted above, all
three of these potential jurors had prior negative experiences with police that could have
been perceived as affecting their ability to fairly evaluate the evidence against
Washington.
Washington next contends that the removal of Raquel O. as an alternate juror
shows that the prosecutor’s proffered explanations were all pretextual. Initially, we note
that the sufficiency of the prosecutor’s reasons is not properly at issue on appeal since
Washington failed to make a prima facie showing in the trial court.6 In any event, we
disagree with Washington on this point as well.
According to Washington, Raquel O. was an “ideal” juror from the prosecution’s
perspective except for the fact that she was African-American. We disagree. The
prosecutor stated that he excused Raquel O. because she was thinking of becoming a
police officer and because she had problems with police in the past. These reasons,
which are consistent with the record of Raquel O.’s voir dire, 7 provide a racially neutral
were excluded. (See, e.g., People v. Motton (1985) 39 Cal.3d 596, 607-608; People v.
Hall (1989) 208 Cal.App.3d 34, 42-43.)
6 “When a trial court expressly rules that a prima facie case was not made, but
allows the prosecutor to state his or her justifications for the record, the issue of whether
a prima facie case was made is not moot. [Citations.] Rather, ‘when the appellate court
is presented with such a record, and concludes that the trial court properly determined
that no prima facie case was made, it need not review the adequacy of counsel’s
justifications for the peremptory challenges.’ ” (People v. Box, supra, 23 Cal.4th at p.
1188.)
7 During voir dire, Raquel O. stated that she was in the process of earning her
bachelor’s degree in criminal justice and was thinking about becoming a police officer
although she had not yet made that decision. Raquel O. stated that she did not believe her
interest in the police force would sway her decision making one way or another because

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explanation for exercising the peremptory challenge. The prosecutor was concerned that
this individual’s prior negative experience with police officers and her own interest in the
criminal justice system might cause her to question or to be overly critical of the
numerous law enforcement officers whose testimony was vital to the prosecution’s case.
C. The December 30 Incident
Washington next contends that the trial court committed prejudicial error by
admitting evidence relating to the December 30 incident in violation of Evidence Code
section 1101 (section 1101). Rulings under section 1101 are reviewed under the abuse of
discretion standard. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 (Ewoldt); People v.
Kipp (1998) 18 Cal.4th 349, 369.)
Section 1101, subdivision (a) (section 1101(a)) establishes a general rule
excluding “evidence of a person’s character or a trait of his or her character . . . when
offered to prove his or her conduct on a specified occasion.” However, this provision
expressly acknowledges there are exceptions to this rule which may make character
evidence admissible. Furthermore, section 1101, subdivision (b) (section 1101(b)),
clarifies that “this rule does not prohibit admission of evidence of uncharged misconduct
when such evidence is relevant to establish some fact other than the person’s character or
disposition.” (Ewoldt, supra, 7 Cal.4th at p. 393.) Specific examples of such facts are set
forth in section 1101(b). “The categories listed in section [1101(b)] are examples of facts
that legitimately may be proved by other-crimes evidence, but, . . ., the list is not
exclusive. [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 145-146; see also, 1
Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 75, p. 411.)
If a trial court has determined that evidence of a criminal defendant’s uncharged
conduct is not excluded by section 1101(a), it must then consider whether the evidence
should nevertheless be excluded pursuant to Evidence Code section 352. (People v.
she had both negative and positive experiences with police officers in the past. When
asked about her negative experiences, Raquel O. stated that when she was in high school
and had first obtained her driver’s license, she was stopped by police for no reason and
that happened a few times.

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Balcom (1994) 7 Cal.4th 414, 426.) The evidence must be excluded if the probative
value of the evidence is substantially outweighed by the probability that its admission
would “(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
In the present case, the trial court found that evidence of the December 30 incident
was admissible on two independent grounds that had been argued by the prosecutor.
First, the evidence was not character evidence at all because it was independently
relevant to the material disputed issue of whether Washington had a gun. Second, the
court ruled that, to the extent section 1101 applied, the evidence was admissible pursuant
to section 1101(b) as probative of identity, intent and means.
We agree with the trial court that the December 30 evidence was relevant to a
material issue in this case, namely the two gun use allegations relating to the charges of
carjacking and unlawful taking or driving of a vehicle. Whether Washington used a gun
to commit these offenses was a material disputed issue. When interviewed by police,
Washington not only denied that he stole the BMW, or knew that it was stolen, he also
denied having a gun. Washington’s defense at trial was that he was not the carjacker
because, among other things, he did not have a gun. Under these circumstances, evidence
that, on the day before and at approximately the same time of day that the carjacking was
committed, Washington was seen a few blocks away from the location where the
carjacking was committed with a gun that matched the description of the gun that
Wiggins provided was relevant to prove the two gun use allegations in this case.
Washington contends that the December 30 incident was not sufficiently similar to
the carjacking incident to be relevant to the issues of identity or intent. To support this
contention, Washington points out that “[e]vidence of uncharged crimes is admissible to
prove identity, common design or plan, or intent only if the charged and uncharged
crimes are sufficiently similar to suggest a rational inference of identity, common design,
or plan or intent.” (Citing Ewoldt, supra, 7 Cal.4th at pp. 402-403.) Washington then
concludes that evidence he displayed a gun on December 30 does not support a rational
inference that he intended to or did in fact commit a carjacking.

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In this case, evidence that an armed carjacking occurred was overwhelming and
undisputed, a fact defense counsel conceded during closing argument. However, defense
counsel did dispute that Washington was the individual who committed the carjacking.
Aside from attempting to discredit the quite strong evidence that Washington was
identified by Wiggins in both a photo line up and at trial, the only circumstance
supporting Washington’s defense was the absence of physical evidence of a gun.
Counsel argued that someone other than Washington, someone who did possess a gun,
committed the carjacking. Under these circumstances, evidence that Washington was
seen with a gun that matched the description of the carjacker’s gun, on the day before and
at the same time of day that the carjacking occurred, in the neighborhood where the
carjacking occurred did, in fact support a rational inference that Washington had and used
a gun to commit the carjacking on December 31.
Washington next contends that the December 30 evidence was not sufficiently
probative of a material issue to justify its admission under Evidence Code section 352
because it was cumulative of Wiggins’s testimony and was extremely inflammatory.
Again we disagree.
The probative value of this evidence was very high because Washington disputed
the gun use allegations and there was no physical evidence of a gun. Further, evidence of
the December 30 incident was not cumulative of Wiggins’s testimony; it was independent
proof that Washington possessed the gun that Wiggins described, that the gun was real,
and that Washington used it to commit the offenses charged in counts two and three.
Furthermore, this evidence was not particularly inflammatory in light of the other
evidence that was presented to this jury and the charges Washington faced.
D. Washington’s Sentence
Washington contends he is entitled to a new sentencing hearing because the trial
court relied on a variety of improper factors when calculating Washington’s sentence and
because the court’s comments during the hearing showed that it was biased against him.

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1. Background
As noted in our factual summary, Washington was sentenced to an aggregate term
of 19 years in prison. The trial court imposed an upper term sentence of nine years for
the carjacking and a consecutive ten-year term for the gun use enhancement relating to
that charge. The stated reason for this sentencing determination was that “the
aggravating factors outweigh those in mitigation.”
The court identified the following aggravating factors: (1) the victim was
particularly vulnerable, (2) the defendant was convicted of other crimes for which
consecutive sentences could have been imposed but for which concurrent sentences were
imposed, (3) the manner in which the crime was committed indicated planning,
sophistication or professionalism, (4) prior juvenile convictions were numerous and of
increasing seriousness, and (5) prior performance on probation was unsatisfactory. The
court found that no mitigating factors applied.
Washington was sentenced to three years for the assault and two years for evading
an officer. The court determined that both of these mid-term sentences were to run
concurrently with the base carjacking sentence. The court also imposed a three-year
upper term sentence for unlawful taking of a vehicle and a ten-year term for the gun use
finding relating to that offense, and then stayed those sentences pursuant to Penal Code
section 654.
2. Analysis
Washington contends that the trial court relied on two improper factors to support
the upper term sentence for carjacking, (1) the defendant’s lack of remorse, and (2) the
particular vulnerability of the victim.
As noted above, the trial court expressly identified the aggravating circumstances
supporting its sentencing decision and lack of remorse was not a factor that the court
identified. Despite this fact, Washington asks us to infer that lack of remorse was an
aggravating factor because, at one point during the hearing, the court observed that
Washington “doesn’t care about anybody except himself.” Such an inference is

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unwarranted and unreasonable since the court expressly listed the aggravating factors it
relied on to support the upper term sentence.
The victim’s particular vulnerability was an aggravating factor identified by the
trial court. We do not find substantial evidence in the record to support this finding. 8
(See People v. Downey (2000) 82 Cal.App.4th 899, 917 [trial court’s sentencing
determination is reviewed for substantial evidence].) However, the court could have
imposed the same sentence without this factor since a single factor in aggravation is
sufficient to support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th
622, 728.) “When a trial court has given both proper and improper reasons for a sentence
choice, a reviewing court will set aside the sentence only if it is reasonably probable that
the trial court would have chosen a lesser sentence had it known that some of its reasons
were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.) After reviewing the record
of the sentencing hearing, we are convinced that the trial court would have imposed the
upper term sentence had it realized that Wiggins was not a particularly vulnerable
witness.
Washington next contends that the trial court abused or failed to exercise its
discretion with respect to the sentence it imposed for unlawful taking of a vehicle and the
accompanying gun use finding. The record shows that the court initially expressed an
intention to impose a middle term sentence for this offense but was persuaded by the
prosecutor to impose an upper term in order to be consistent with the upper term sentence
for the carjacking.
Washington contends that there is no authority requiring that sentence choices be
“consistent,” and further posits that applying such a standard is “impermissible” because
it precludes a court from exercising its discretion by making an individualized sentencing
decision. We are not persuaded by this argument. The conviction for unlawfully taking a
8 The People’s observation that Wiggins was young (“only” 28 years old), alone,
and holding a cup of coffee does not supply us with the substantial evidence we would
need to affirm this finding.

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vehicle was supported by the same evidence that supported the carjacking conviction, the
same factors in aggravation applied to both, and there were no mitigating factors
applicable to either offense. Under these circumstances the trial court neither failed to
exercise its discretion nor abused that discretion by imposing an upper term sentence for
unlawfully taking a vehicle.
Finally, Washington contends he was denied his right to due process at the
sentencing hearing because the trial court was biased against him. Washington waived
this claim by failing to raise it in the lower court. (People v. Guerra (2006) 37 Cal.4th
1067, 1111; People v. Seaton (2001) 26 Cal.4th 598, 698.) In any event, we find
insufficient evidence to support Washington’s untimely claim of bias.
Washington relies primarily on two statements the trial court made at the
beginning of the hearing when it shared with counsel the sentence it was thinking of
imposing.9 The court stated that, after reviewing the probation report and hearing the
trial “I just think this conduct—I mean, we’re one step away from about the most violent
crime that you can have.” Shortly thereafter, the court stated that “I have a real difficult
time with this case . . . .” In Washington’s view, these comments manifest the trial
judge’s “provincial” attitude, an attitude Washington attributes to the fact that Solano is a
more “rural” county than Alameda. Washington further contends the trial judge’s
attitude precluded him from being impartial during sentencing. To illustrate his point,
Washington argues that carjacking is not one step away from the most violent crime there
is and surmises that the trial court’s contrary opinion resulted in too harsh a sentence.
Even when viewed out of context, the two comments about which Washington
complains do not show the trial judge was biased against Washington. Furthermore,
since all of the court’s sentencing decisions are adequately explained and amply
9 To buttress his judicial bias claim, Washington makes the unfounded accusation
that the trial court predetermined a severe sentence and then worked backward to try to
justify it. The record clearly demonstrates that the court gave an indicated sentence,
stated reasons for that sentence, and then invited comments from both counsel which it
took into consideration before announcing the actual sentence that was imposed.

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supported by the record, Washington’s subjective assessment of the trial court’s
“attitude” is simply irrelevant. We find no evidence in the record before us that the trial
court was bias against Washington.
IV. DISPOSITION
The judgment and sentence are affirmed.
_________________________
Haerle, J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.

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