People v. Wilson CA2/8 ( 2021 )

Filed 6/4/21 P. v. Wilson CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300876
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA466320)
v.
MARKEE WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Maame Ewusi-Mensah Frimpong, Judge.
Affirmed.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A jury found Markee Wilson guilty of selling cocaine.
Wilson attacks his jury selection and the sufficiency of the
evidence of the sale. He also raises evidentiary issues. We
affirm.
Undesignated statutory citations are to the Penal Code.
I
An amended information charged Wilson with selling
cocaine base (Health & Saf. Code, § 11352, subd. (a)) on August
25, 2017 (count 1) and on June 13, 2017 (count 2). The
information alleged Wilson committed the offenses for a gang (§
186.22, subd. (b)(1)(A)).
During jury selection, Wilson made a Batson/Wheeler
motion, which the court denied. (See Batson v. Kentucky (1986)
476 U.S. 79, 88 (Batson); People v. Wheeler (1978) 22 Cal.3d 258,
276–277 (Wheeler).) We recount details about jury selection and
this motion later in the opinion.
In 2016, the Los Angeles Police Department and the
Federal Bureau of Investigations formed a joint task force to
investigate a gang called the Rollin’ 40s. The focus of this
investigation was a shopping complex that gang members
frequented. The task force used informants who bought drugs.
Wilson’s case stemmed from this investigation.
The jury heard five days of trial testimony. A detective,
two police officers, two criminalists, and an informant testified
for the prosecution. Wilson, a private investigator, and a gang
expert testified for the defense.
The detective, Daniel Hernandez, testified about the
process of documenting controlled drug buys. The informant
would wear a microphone to provide audio to Hernandez. The
2
informant also wore a separate audio/video recorder that
Hernandez did not view live. During the August buy, a
surveillance team relayed radio information to Hernandez about
what was happening.
The prosecution played the audio/video recording from the
August buy for the jury during Hernandez’s and the informant’s
testimony. The court admitted this video in evidence.
During the August buy, Wilson was in the passenger’s seat
of the car of one Mitchell Taylor, who sat in the driver’s seat. The
informant testified he approached the car and bought cocaine
from Wilson. The informant first gave his money, $20, to Taylor.
The informant saw Taylor pass the money to Wilson. The
informant went to the passenger side, where Wilson gave him
$10 worth of cocaine. Wilson did not have the full $20 worth of
cocaine and he called someone else over to bring more cocaine.
The prosecution did not present audio/video recording of
the alleged June buy. Hernandez said this video was lost.
Wilson testified he joined the Rollin’ 40s gang when he was
16 or 17 years old. He said he worked at a pet store in the
shopping complex. Wilson admitted selling drugs in the past but
denied selling drugs at the times in question.
The jury found Wilson guilty of count 1, the August sale,
and found the gang allegation true. It acquitted Wilson of count
2.
The court sentenced Wilson to three years in state prison
for count 1. It struck the punishment for the gang enhancement.
II
Wilson, a black man, challenges the trial court’s denial of
his Batson/Wheeler motion. Specifically, he says the prosecutor’s
reasons for excusing three jurors were pretextual and the trial
3
court erred by finding otherwise. He is incorrect under current
law.
A
We recount the relevant portions of voir dire.
The court and counsel questioned 40 prospective jurors.
Wilson’s challenge focuses on prospective Jurors No. 3, 7, and 23,
all African American men. (For simplicity, we eliminate the word
“prospective” when we refer to these jurors for the remainder of
the opinion. We use “African American” because trial counsel
and the court used this designation.)
The court questioned jurors for one day. The next day,
defense counsel and the prosecution questioned jurors for about
30 minutes each.
Juror No. 3 raised his hand when the court asked whether
any jurors or “anyone close to you” believed controlled substances
such as cocaine base should be legalized. The prosecutor
questioned Juror No. 3 about this belief the next day. Juror No. 3
believed all drugs, “all the way up to heroin” should be legalized.
The prosecutor asked whether Juror No. 3 could follow the law
despite this belief. He responded, “I think so.” The prosecutor
said, “You seemed a little hesitant” and asked him to explain his
thinking. He replied, “It would depend—I was just thinking
about it is not just finding fact. You have to think about that
individual who is going to be punished for that.” The prosecutor
explained the court would instruct the jury not to consider
punishment when reaching its verdict and asked whether Juror
No. 3 would follow that instruction. He said, “I will try to, yes.”
In a separate line of questioning, the prosecutor offered a
hypothetical. “Johnny Appleseed is on trial for stealing just one
grape. I’m sure all of us have done it. We go to the grocery store.
4
We want to make sure the fruit is ripe. So we pick a little grape
or a little cherry and take a little bite of it. Technically, it is a
theft. Infraction, but theft. [¶] Now let’s say that Johnny
Appleseed is brought into court and is on trial for stealing just
that one grape. Witnesses come in and testify. There’s video
surveillance. You see Johnny Appleseed going into the grape
aisle and taking one grape and eating it and leaving the store
without paying. [¶] Under those facts . . . do you have any issues
returning a verdict of guilty?” Juror No. 3 would not convict the
hypothetical grape pilferer.
Juror No. 7 raised his hand when the court asked whether
any jurors were familiar with the Rollin’ 40s street gang. Juror
No. 7 did not personally know any gang members.
Juror No. 7 responded affirmatively to three of defense
counsel’s questions about gangs: (1) whether gangs are created
because of society; (2) whether people who join gangs have a
choice, and (3) whether people join gangs for protection.
Defense counsel asked Juror No. 7 to explain his belief
gangs were created because of society. Juror No. 7 replied, “I
think there are a lot of factors that contribute to the formation of
gangs, including—it goes back in history from probably the ’60s,
’70s, when the drug epidemic started to really become prevalent.
But even before that, the gangs originated as a way to be a part
of your community. It wasn’t always—it always didn’t have this
negative aspect to it. And when the drug epidemic came in is
when it started to switch a little bit. More violence took place
within and in between gangs. [¶] But originally I do believe that
gangs were formed more for up lifting communities. They were
really about people bonding together. Obviously, the way that
the U.S. was formed, certain people were marginalized, and this
5
was the only way they felt they could uplift each other to kind of
form those types of groups.”
The next day, the prosecution questioned Juror No. 7 twice
relating to these responses. First, the prosecutor mentioned that
some jurors believed society causes people to join gangs. Then
she said, “you’re going to be asked to be the factfinders in this
case and only determine what happened. [¶] Can everyone do
that?” She asked Juror No. 7 individually and he responded
“Yes.” Second, the prosecutor listed Juror No. 7 and other jurors
who said they were familiar with the Rollin’ 40s gang and asked
whether they knew any members of that gang. Juror No. 7 did
not respond, meaning he did know any members of that gang.
Juror No. 23 was a case manager for a re-entry program for
men who have been involved in the criminal justice system.
Juror No. 23’s aunt was murdered in 2001 and his brother
was shot and paralyzed in 2002. He was not satisfied with the
efforts of law enforcement, who failed to find the perpetrators.
Juror No. 23’s mother and a number of other women in his family
were victims of domestic abuse. He was not satisfied with the
efforts of law enforcement in those incidents, either. He
estimated 30 close family members, including his mother, father,
and siblings, had been “charged, investigated, and incarcerated
for numerous different types of crimes.” He thought the legal
system did not treat his parents fairly in “some cases” and did not
treat his siblings fairly in “most cases.”
The parties stipulated to excuse five jurors for cause.
The prosecutor unsuccessfully challenged three jurors—
Jurors No. 1, 3, and 4—for cause based on their negative
response to the grape hypothetical. According to the prosecutor,
this response meant they could not follow the law when a small
6
quantity was at issue, which was important because Wilson’s
case involved a small amount of drugs. The court rejected the
for-cause challenge and said the grape hypothetical did not have
much import. “I’m not even really sure if counsel is correct, that
that would be a crime to steal one grape. So I think the jurors
may have gotten lost in the hypothetical.” The court also
explained these three jurors had either said they could follow the
law in other exchanges during voir dire or did not say anything
else to prove the jurors could not follow the law or be fair. Thus
the court determined the grape hypothetical alone did not
support a for-cause challenge against them.
The parties moved to peremptory challenges. The
prosecution used its second, third, and sixth challenges to excuse
Jurors No. 3, 7, and 23, respectively.
After the prosecutor asked to excuse Juror No. 23, the
defense made a Batson/Wheeler motion. Juror No. 23 was the
last African American man left in the venire. The defense had
previously excused a fourth African American man.
The court found the defense made a prima facie showing
and requested the prosecutor’s justification.
The prosecutor said Juror No. 3 “was one of the jurors that
I gave the grape hypothetical to about drugs and whether or not
he could still follow the law even if it was a [de minimis] amount,
which is why I also excused Juror No. 1. [¶] I intend to also
excuse Juror No. 4.”
Juror No. 7 “was talking a lot about gangs and social
problems. And I felt that his belief about [why] members would
join gangs, that they don’t have a choice or they need protection
would—he would be bias[ed] in this case.”
7
Juror No. 23’s “social work” background “is generally what
I don’t like on my . . . juries.” The prosecutor explained she had
excused Juror No. 19 for the same reason.
The court asked defense counsel if he had anything further
to add. He responded only, “Your honor, the one thing [the three
prospective jurors] could provide is an understanding that maybe
other nonwhites—nonwhite[] jurors will not know. I think they
would be great jurors.”
The court asked counsel for a moment and there was a
pause in the proceedings. Then the court denied the
Batson/Wheeler motion, offering the following reasons. “[W]ith
respect to Juror No. 3, the views on legalization of drugs and his
response to the grape hypothetical, the court finds that to be
genuine and not pretextual.” “. . . Juror No. 7 was one of the
jurors who indicated that society creates gangs and people maybe
don’t have a choice to join gangs. The court finds that’s a genuine
reason and not pretextual, especially in this circumstance.”
“[T]he court recalls that [Juror No. 23] specifically stated that he
works on re-entry programs and talked extensively about that,
the court finds that’s a genuine reason and not a pretextual
reason.”
The court did not report the racial composition of the
seated jury. (See People v. Lenix (2008) 44 Cal.4th 602, 610, fn. 6
[if a party has made a Batson/Wheeler motion, “it is helpful for
the record to reflect the ultimate composition of the jury”]
(Lenix).)
B
The state and federal constitutions prohibit counsel from
using peremptory challenges to exclude jurors based on race,
gender, or other protected characteristics. (Wheeler, supra, 22
8
Cal.3d at pp. 276–277; Batson, supra, 476 U.S. at pp. 88–89.)
The Constitution forbids striking a juror for a discriminatory
purpose. (Snyder v. Louisiana (2008) 552 U.S. 472, 478.)
Courts apply the well-established three-step Batson inquiry
to motions alleging discriminatory use of peremptory challenges.
This procedure also applies to state constitutional claims. (Lenix,
supra, 44 Cal.4th at pp. 612–613.)
First, the defendant must make a prima facie showing that
the totality of the facts raises an inference of discriminatory
purpose. Second, the burden shifts to the prosecutor to rebut a
prima facie showing by giving an adequate nondiscriminatory
explanation for the challenges. Third, if the prosecutor has
tendered a neutral explanation, the court must decide whether
the defendant has proven racial discrimination. (Johnson v.
California (2005) 545 U.S. 162, 168.)
We presume prosecutors exercise peremptory challenges
constitutionally and the defendant bears the burden of rebutting
that presumption. (People v. Johnson (2015) 61 Cal.4th 734,
755.) A prosecutor’s justification, moreover, “need not support a
challenge for cause, and even a ‘trivial’ reason, if genuine and
neutral, will suffice.” (People v. Arias (1996) 13 Cal.4th 92, 136
(Arias).) For the defendant to prevail, it must be more likely
than not that the prosecutor had an improper motivation for the
challenge. (People v. Mai (2013) 57 Cal.4th 986, 1059 (Mai).)
We are concerned here with the third step. Central to the
trial court’s evaluation at this step is the credibility of the
prosecutor’s explanation. The court may consider the
circumstances of the case; contemporaneous observations of voir
dire, including the prosecutor’s demeanor; the reasonability of the
step two explanation; and the judge’s own legal experience and
9
knowledge of trial techniques. (People v. Gutierrez (2017) 2
Cal.5th 1150, 1158–1159 (Gutierrez).)
When assessing the viability of the prosecution’s
justifications for a peremptory challenge, trial courts and
reviewing courts must examine only those reasons the
prosecution actually expressed. (Gutierrez, supra, 2 Cal.5th at p.
1167; Miller-El v. Dretke (2005) 545 U.S. 231, 251–252 (Miller-El)
[explaining prosecutors must state their reasons as best as they
can and “stand or fall” on the plausibility of those reasons].)
We review the trial court’s determination of a prosecutor’s
justification for exercising peremptory challenges with “great
restraint.” (Arias, supra, 13 Cal.4th at p. 136.) If the trial court
makes a sincere and reasoned effort to evaluate the prosecution’s
justifications, its conclusions are entitled to deference on appeal
when they are supported by substantial evidence. (People v.
Johnson, supra, 61 Cal.4th at p. 755.) We give great deference to
the trial court’s ability to distinguish between bona fide reasons
and sham excuses. (Ibid.)
Wilson raises comparative juror analysis on appeal, so we
review this area of the Batson/Wheeler framework. This analysis
compares challenged prospective jurors with similarly situated
but unchallenged prospective jurors who are not members of the
challenged prospective juror’s protected group. (Gutierrez, supra,
2 Cal.5th at p. 1173; and see Miller-El, supra, 545 U.S. at p. 241.)
This analysis may be probative of purposeful discrimination.
(Miller-El, at p. 241.) We must undertake comparative juror
analysis even if the defendant raises it for the first time on
appeal, so long as the record is adequate to permit the
comparisons. (Gutierrez, at p. 1174.) There are, however,
10
“inherent limitations” to doing so on a “cold appellate record.”
(Lenix, supra, 44 Cal.4th at p. 622.)
Some of the “inherent limitations” are apparent here. For
example, the record does not disclose the race of most members of
the seated jury and it does not disclose the gender of some
members. The record does disclose, however, that none of the
seated jurors were African American men. We perform the
comparative analysis with its limits in mind.
Comparative juror analysis is more than an exercise in
identifying any conceivable distinction between prospective
jurors. “Rather, because the ultimate question before us concerns
the prosecutor’s motivations in exercising the challenge in
question, we must ask whether there were any material
differences among the jurors—that is, differences, other than
race, that we can reasonably infer motivated the prosecutor’s
pattern of challenges.” (People v. O’Malley (2016) 62 Cal.4th 944,
977 (O’Malley).) “[D]ifferences among the jurors generally will be
more probative if they closely relate to reasons the prosecutor has
stated for a peremptory challenge.” (People v. Miles (2020) 9
Cal.5th 513, 544 (Miles).)
Contrary to Wilson’s assertion, because he has raised the
issue of comparative juror analysis for the first time on appeal,
we may consider grounds the prosecution did not articulate at
trial when comparing jurors. The Supreme Court has
consistently weighed in on this issue: “when conducting
comparative juror analysis for the first time on appeal, we need
not turn a blind eye to reasons the record discloses for not
challenging other jurors.” (Miles, supra, 9 Cal.5th at p. 543;
accord O’Malley, supra, 62 Cal.4th at p. 977; People v. Chism
(2014) 58 Cal.4th 1266, 1319 (Chism); People v. Jones (2011) 51
11
Cal.4th 346, 365–366.) The prevailing logic is that if the
defendant had raised the comparative juror issue at trial, the
prosecutor could have offered more specific reasoning for keeping
one juror and not another. As to our comparative juror analysis,
we will consider grounds the prosecution did not articulate at
trial.
C
Substantial evidence supports the trial court’s ruling that
the prosecutor provided genuine and not pretextual reasons for
challenging the three jurors. We take each juror in turn.
1
Substantial evidence supports the trial court’s finding
regarding the prosecutor’s reasoning for challenging Juror No. 3.
The prosecutor had explained her belief the grape hypothetical
provided valuable information about jurors’ ability to follow the
law even when a small quantity was at issue. This was relevant
to Wilson’s case. The prosecutor first offered this ground as a for-
cause challenge, which tends to show she believed it was
important. The fact the court denied the for-cause challenge is
not dispositive. (Arias, supra, 13 Cal.4th at p. 136 [justification
need not support a challenge for cause].) This evidence supports
the genuine nature of the prosecution’s explanation.
The prosecutor’s treatment of Juror No. 1 is also proof the
prosecutor’s reasoning was genuine. The prosecutor used her
first peremptory challenge against Juror No. 1, who was not an
African American man and who gave the same response to the
hypothetical as Juror No. 3.
The trial court improperly relied on a ground the
prosecution did not state—Juror No. 3’s opinion about legalizing
12
drugs—but the grape hypothetical alone provides sufficient
support and we affirm on this ground.
For the first time on appeal, Wilson raises a comparative
juror analysis of Jurors No. 3 and 9, but the comparison does not
change the result. Wilson says the prosecutor’s reasoning about
the grape hypothetical was pretext because the prosecutor did not
excuse Juror No. 9, who responded the same way about this
hypothetical. For this comparative juror analysis, we may
consider other unstated grounds. Juror No. 3’s views on drugs
materially distinguish him from Juror No. 9. Juror No. 3
believed cocaine and other drugs should be legalized, a view
Juror No. 9 did not share. The prosecutor could validly find this
opinion pertinent to a case alleging cocaine sales. Juror No. 3’s
equivocal statements about “think[ing]” he could follow the law
and “try[ing]” not to consider the punishment do not invalidate
the prosecution’s concern. The comparison of Juror No. 3 and
Juror No. 9 does not show the prosecution had an improper
motive.
2
Substantial evidence also supports the trial court’s finding
regarding the prosecutor’s reasoning for challenging Juror No. 7.
This prospective juror had heard of Wilson’s gang, believed
people joined gangs for protection, and believed society created
gangs. Regarding the creation of gangs, Juror No. 7 said, “gangs
originated as a way to be a part of your community . . . . [G]angs
were formed more for up lifting communities. They were really
about people bonding together.” Additionally, he said forming
gangs was the “only way [marginalized groups] felt they could
uplift each other.” Wilson’s case included gang allegations and
prospective jurors’ views about how gangs formed and why people
13
join them could affect their decisions about the allegations. The
trial court could find the prosecution’s reasoning about these
gang responses genuine.
We note that one of the prosecutor’s grounds for striking
Juror No. 7 conflicts with the record. Given the circumstances,
we do not consider that ground as a compelling reason for the
peremptory challenge, nor as proof of discrimination. The ground
was Juror No. 7’s response to defense counsel’s question about
whether people who join gangs have a choice. Juror No. 7 said
yes, which meant he believed people who join gangs do have a
choice. The prosecutor incorrectly said this response had the
opposite meaning and cited it to demonstrate Juror No. 7 might
be biased in favor of gang members.
Our Supreme Court has addressed the issue of mistakes in
prosecutor’s step two explanations. “[A] genuine ‘mistake’ is a
race-neutral reason.” (People v. Williams (1997) 16 Cal.4th 153,
189.) Although “an isolated mistake or misstatement that the
trial court recognizes as such is generally insufficient to
demonstrate discriminatory intent [citation], it is another matter
altogether when . . . the record of voir dire provides no support for
the prosecutor’s stated reasons for exercising a peremptory
challenge and the trial court has failed to probe the issue.”
(People v. Silva (2001) 25 Cal.4th 345, 385.) When a prosecutor
posits multiple reasons for a peremptory challenge and some are
implausible or unsupported, this can, in some circumstances,
“fatally impair the prosecutor’s credibility.” (People v. Smith
(2018) 4 Cal.5th 1134, 1157–1158.) A prosecutor’s mistake might
not provide a compelling reason for a peremptory challenge, but
neither does the mistake alone necessarily establish the
14
prosecutor’s stated reasons were pretextual. (See O’Malley,
supra, 62 Cal.4th at p. 980.)
Here, the trial court did not notice the discrepancy and did
not probe this issue. After the prosecution offered its reasons, the
court asked defense counsel if he had anything further to add.
He did not mention this issue. Defense counsel’s silence is not
dispositive but it is significant, for three reasons. First, defense
counsel himself asked the question at issue, making him well-
positioned to identify the discrepancy. Second, “[i]f defense
counsel had noted [the discrepancy], the prosecutor could have
explained herself, and the court could have made a reasoned
ruling that we could review.” (People v. Hardy (2018) 5 Cal.5th
56, 81 (Hardy).) And third, the defendant has the ultimate
burden of persuasion regarding the prosecutor’s motivation.
(O’Malley, supra, 62 Cal.4th at p. 974.)
Our review acknowledges the prosecutor’s incorrect ground
and we find it does not provide a compelling reason for the
peremptory challenge, nor does it prove discrimination.
Wilson says one of the prosecutor’s grounds for excusing
Juror No. 7 was a response he gave about racism and his
experience of racism, but we do not think the prosecutor was
referencing that response. The prosecutor’s reason for
challenging Juror No. 7 included the juror’s discussion of “gangs
and social problems.” The prosecutor did not say more about
“social problems,” and neither the trial court nor defense counsel
probed the matter. On appeal, Wilson says “social problems” was
a distinct ground that must refer to Juror No. 7’s response about
experiencing racism in society. The Respondent’s brief does not
address “social problems” separately from the gang reasoning.
We think the most natural reading of this ground is that “gangs
15
and social problems” referred to the response we have quoted in
which Juror No. 7 explained why he believed society created
gangs. Therefore we do not consider Juror No. 7’s experience
with racism as a ground upon which the prosecution relied and
we do not use it to support or discredit the prosecution’s
reasoning.
We turn now to comparative juror analysis. Wilson
correctly notes that other jurors from the venire of 40 jurors
responded similarly to some of the gang questions. Fourteen
other prospective jurors responded affirmatively to the question
of whether society produces gangs. Five of them ultimately
served on the jury. Seventeen other prospective jurors responded
affirmatively to the question about whether people join gangs for
protection. Five of them ultimately served on the jury and two of
them served as alternate jurors. The comparison falters,
however, because only Juror No. 7 expounded about the uplifting
nature of gangs’ origins. The prosecution could fairly and
genuinely see this as a meaningful distinguishing factor.
Additionally, unlike Juror No. 7, none of the seated jurors were
familiar with Wilson’s gang.
Wilson downplays the import of Juror No. 7’s statement
about the origin of gangs, but the statement provides context
about this prospective juror’s beliefs. Wilson asserts the
statement was merely about the history of gang formation and
Juror No. 7’s beliefs about gangs were “entirely impartial.” Juror
No. 7 offered a lengthy explanation about gang formation that
twice referred to their uplifting origins. If a person expressed the
belief a leader who became a murderous dictator was initially
great and uplifting, it would be fair to infer the person might
have a mixed or benign attitude about this dictator. The
16
prosecution could reasonably believe Juror No. 7’s statement
reflected a positive view of gangs, historically, and therefore a
mixed or benign view of present-day gangs that came from these
origins. As we have explained, no other juror expressed Juror
No. 7’s view about the uplifting origins of gangs. The comparison
of Juror No. 7 and seated jurors does not reveal the prosecution
had an improper motive.
3
Substantial evidence also supports the trial court’s finding
about the prosecutor’s challenge of Juror No. 23. The prosecutor
said she typically did not like to have people with Juror No. 23’s
occupation, social work, on her juries. Under current law,
prosecutors may challenge potential jurors whose occupation the
prosecutor subjectively believes will not render them the “best
type of juror” for the case. (People v. Reynoso (2003) 31 Cal.4th
903, 925 (Reynoso).)
The prosecutor’s treatment of Juror No. 19 also tends to
show the prosecutor’s reasoning was genuine. The prosecutor
used her penultimate peremptory strike before the
Batson/Wheeler motion to remove Juror No. 19, a social worker
who was not an African American man. The court could find the
prosecutor’s occupation-based reasoning genuine.
Wilson offers an unavailing comparative juror analysis. He
says the prosecution’s acceptance of Juror No. 17, a
psychotherapist working in community mental health, means the
prosecution’s reasoning was pretextual. Assuming
psychotherapists and social workers are comparable, we may
consider other grounds because Wilson raises this comparison for
the first time on appeal. The prosecution points to Juror No. 23’s
family’s contacts with the legal system, his opinion that law
17
enforcement treated his siblings unfairly, and his dissatisfaction
with police efforts in cases involving his aunt and brother. Under
current law, negative experience with law enforcement or
distrust in the legal system are valid bases for a peremptory
challenge. (E.g., People v. Winbush (2017) 2 Cal.5th 402, 436,
439.) Wilson does not identify any evidence Juror No. 17 shared
Juror No. 23’s experiences and views in this area. We have
reviewed the record of voir dire, which does not reveal this
evidence. Thus these grounds materially distinguish Juror No.
23 from Juror No. 17, and Wilson’s comparative argument fails.
D
Our analysis applies current law. We are aware this law
will change.
Judges have not been unanimous in their support for the
Batson/Wheeler framework. (E.g., Miles, supra, 9 Cal.5th at pp.
606–617 (dis. opn. of Liu, J.); People v. Armstrong (2019) 6
Cal.5th 735, 800–816 (dis. opn. of Liu, J., joined by Cuéllar, J.
and Perluss, J. (sitting by appointment)); People v. Johnson
(2019) 8 Cal.5th 475, 528–547 (dis. opns. of Liu, J. and Cuéllar,
J); People v. Rhoades (2019) 8 Cal.5th 393, 456–470 (dis. opn. of
Liu, J.); Hardy, supra, 5 Cal.5th at pp. 107–125 (dis. opn. of Liu,
J.); People v. Reed (2018) 4 Cal.5th 989, 1019–1031 (dis. opns. of
Liu, J. and Kruger, J.); Chism, supra, 58 Cal.4th at pp. 1338–
1353 (conc. & dis. opn. of Liu, J., dissenting as to Batson/Wheeler
portion of maj. opn.); People v. Williams (2013) 56 Cal.4th 630,
698–728 (dis. opns. of Werdegar, J. and Liu, J.); People v. Jones,
supra, 51 Cal.4th at pp. 382–385 (dis. opn. of Werdegar, J., joined
by Moreno, J.); Reynoso, supra, 31 Cal.4th at pp. 929–945 (dis.
opn. of Kennard, J., joined by Werdegar, J. and Moreno, J., and
dis. opn. of Moreno, J., joined by Kennard, J. and Werdegar, J.);
18
People v. Johnson (2003) 30 Cal.4th 1302, 1329–1341 (dis. opn. of
Kennard, J., joined by Werdegar, J.), judg. revd. on
Batson/Wheeler grounds by U.S. Supreme Ct. in Johnson v.
California, supra, 545 U.S. 162); People v. Boyette (2002) 29
Cal.4th 381, 468–472 (dis. opn. of Kennard, J.); People v. Ayala
(2000) 24 Cal.4th 243, 291–300 (dis. opn. of George, C.J., joined
by Kennard, J.); People v. Jones (1997) 15 Cal.4th 119, 204–205
(dis. opn. of Mosk, J.), maj. opn. overruled on grounds unrelated
to Batson/Wheeler in People v. Hill (1998) 17 Cal.4th 800; People
v. Cummings (1993) 4 Cal.4th 1233, 1343–1344 (dis. opn. of
Mosk, J.), maj. opn. abrogated on grounds unrelated to
Batson/Wheeler in People v. Merritt (2017) 2 Cal.5th 819; People
v. Johnson (1989) 47 Cal.3d 1194, 1254–1295 (dis. opn. of Mosk,
J., joined by Broussard, J.), maj. opn. overruled by Gutierrez,
supra, 2 Cal.5th 1150 on grounds related to Batson/Wheeler
analysis.)
In each case in the last citation, the majority opinion
affirmed denials of Batson/Wheeler motions. Given the near
uniformity of affirmances, critics have questioned whether these
procedures offer proper vigilance. (E.g., People v. Harris (2013)
57 Cal.4th 804, 884–885 & appendix (conc. opn. of Liu, J.)
[describing the current framework, including the deferential
third step review, and noting, as of 2013, the Supreme Court
found Batson/Wheeler error in just one of 102 cases].)
There has been controversy over justifications courts accept
as race-neutral. (E.g., People v. Triplett (2020) 48 Cal.App.5th
655, 692 (statement of Liu, J.) [“our case law rewards parties who
excuse minority jurors based on ostensibly race-neutral
justifications that mirror the racial faultlines in society. This
approach is not dictated by high court precedent, and it is
19
untenable if our justice system is to garner the trust of all groups
in our communities and to provide equal justice under law.”];
People v. Bryant (2019) 40 Cal.App.5th 525, 546 (conc. opn. of
Humes, P.J.) (Bryant) [“Many justifications that have been
categorically approved by courts as neutral under [the Batson]
standard are hardly so.”].) In Bryant, Presiding Justice Humes
pointed to our state jurisprudence upholding peremptory
challenges on the basis of a prospective juror’s negative
experience with law enforcement, skepticism about the fairness
of the legal system, and belief that that system is unfair to
particular racial groups. (Bryant, at p. 546.) “In light of the
undeniable evidence that some minority groups—particularly
black men—have been overpoliced and subjected to harsher
sentences,” it hardly seems race neutral to allow prosecutors to
strike jurors categorically based on contact with or negative
opinions about law enforcement or the judicial system. (Ibid.)
Critics have called for action. (E.g., Miles, supra, 9 Cal.5th
at p. 617 (dis. opn. of Liu, J.) [asking the Supreme Court to
rethink the Batson framework “to fulfill the constitutional
mandate of eliminating racial discrimination in jury selection”];
(Bryant, supra, 40 Cal.App.5th at pp. 548–549 (conc. opn. of
Humes, P.J.) [encouraging the Legislature, the Supreme Court,
and the Judicial Council to act to reduce actual and perceived
bias in jury selection].)
In 2020, the Legislature passed Assembly Bill 3070, which
enacts changes concerning peremptory challenges. (Stats. 2020,
ch. 318, §§ 1–3.) The changes are codified in Code of Civil
Procedure section 231.7. Effective for jury trials in which jury
selection begins on or after January 1, 2022, the law does not
20
apply to Wilson’s 2019 trial. (See Code Civ. Proc., § 231.7, subd.
(i).)
The law will change the Batson/Wheeler procedures in ways
relevant to Wilson’s case. The new law changes the standard of
appellate review. Appellate courts will review express factual
findings for substantial evidence but will otherwise independently
review the denial of an objection. (Code Civ. Proc., § 231.7, subd.
(j).)
Certain reasons for peremptory strikes will be
presumptively invalid, although the presumptions are rebuttable.
These presumptively invalid reasons include distrust of or having
a negative experience with law enforcement and employment in a
field “that serves a population disproportionately comprised of”
people of a certain race, gender, or other protected category.
(Code Civ. Proc., § 231.7, subd. (e)(1) & (10).)
Additionally, under the new law, we will consider only
reasons the prosecutor actually gives to explain the use of a
peremptory challenge or failure to use a peremptory challenge on
a similarly situated juror, “regardless of whether the moving
party made a comparative analysis argument in the trial court.”
(Code Civ. Proc., § 231.7, subd. (j).)
In sum, we affirm the denial of Wilson’s Batson/Wheeler
motion while noting impending changes will affect future
analyses.
III
Sufficient evidence supports Wilson’s conviction for selling
a controlled substance.
We evaluate claims regarding sufficiency of evidence by
reviewing the record in the light most favorable to the judgment
below. We determine whether a reasonable trier of fact could
21
find the defendant guilty beyond a reasonable doubt. We
presume in support of the judgment all facts the jury could
reasonably deduce from the evidence. (People v. Osband (1996)
13 Cal.4th 622, 690.)
The jury, not the reviewing court, determines witness
credibility and resolves conflicts and inconsistencies in testimony.
(People v. Young (2005) 34 Cal.4th 1149, 1181.)
Wilson’s conviction was for selling a controlled substance.
(Health & Saf. Code, § 11352, subd. (a).) The Supreme Court has
defined the elements of this crime as: “intentionally sold
(transferred to another for cash) a restricted dangerous drug with
knowledge of its character.” (People v. Daniels (1975) 14 Cal.3d
857, 861; see also CALCRIM No. 2300 [selling means
“exchanging a controlled substance for money, services, or
anything of value.”].)
Wilson incorrectly says the evidence is insufficient to
establish he completed a drug sale. His argument is about
whether there was evidence to show Taylor gave the informant’s
money to Wilson.
The informant’s testimony and the video suffice. An
undercover agent’s testimony that he purchased drugs from a
defendant in a controlled buy can be enough, standing alone, to
sustain a conviction. (People v. Salas (1975) 51 Cal.App.3d 151,
154.) The informant testified Taylor took the money, handed it to
Wilson, and told the informant to go to the other side of the car
where Wilson sat. In addition to the informant’s testimony, the
video showed the informant going to the car and handing the
money to Taylor, who shifted toward Wilson. A reasonable juror
could infer from the video that Taylor gave the money to Wilson.
22
Wilson attacks the credibility of the informant and Officer
Hernandez, but the jury was entitled to find them credible as to
the August sale.
The informant’s testimony and the video constituted
substantial evidence.
IV
Wilson challenges two portions of Hernandez’s testimony,
but he forfeited these challenges by failing to object properly at
trial.
We review a trial court’s ruling on the admissibility of
evidence for abuse of discretion. (People v. Benavides (2005) 35
Cal.4th 69, 90.)
A
Wilson’s first forfeited issue is about Hernandez’s
testimony about the video. Wilson says Hernandez should not
have been allowed to testify about what happened in the video.
Wilson challenges three statements. These statements are in the
order in which Hernandez made them at trial.
1) Taylor took the money from the informant and “handed it
to Mr. Wilson and then told our informant to go around the
vehicle to meet with Mr. Wilson so he could get the
narcotics, which he just paid money for.” Wilson did not
object.
2) Hernandez got information about the buy from three
sources: listening live to the informant, talking to the
informant afterwards, and the video. Hernandez said these
sources were “consistent.” (Wilson does not challenge on
appeal the next sentence of testimony, “At this point, he’s
calling over another male, which you see in the video,
asking for a dime.” Wilson objected at trial for lack of
23
foundation and the trial court directed the prosecution to
lay a foundation for “that second portion.”)
3) The informant gave the money to Taylor, “[a]nd then [the
informant] was told to go around, which was not only heard
live but also corroborated by the video again. And then the
actions of Mr. Wilson handing narcotics—or at least what
the officer having that direct line of sight . . . .” Defense
counsel raised a hearsay objection at that time, which the
court sustained.
Wilson’s central argument is about Hernandez saying
Taylor handed the money to Wilson. Hernandez did not witness
the buy and therefore did not personally see Taylor hand money
to Wilson. On cross-examination, Hernandez explained the video
showed Taylor get the money from the informant and move his
arm toward Wilson. Hernandez said he made a “very good
educated guess” that Taylor handed the money to Wilson.
Defense counsel asked whether the video showed Wilson reaching
for the money and Hernandez said, “No. I think—I think the
video turns. So, no.” Wilson asserts Hernandez’s testimony
invaded the province of the jury because Hernandez was no
better situated than the jury to determine whether the video
showed Taylor handing the money to Wilson.
While Wilson mentions three different statements by
Hernandez, his argument primarily applies to Hernandez’s first
statement that Taylor handed the money to Wilson. Wilson did
not object to this statement. Wilson forfeited these claims by
failing to make a specific and timely objection in the trial court.
(Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20
(Demetrulias).)
24
Wilson claims he did not forfeit this issue because the court
overruled his initial objections based on the same line of
questioning. He cites two “initial objections” but neither of those
objections rendered objections to Hernandez’s testimony about
Taylor handing money to Wilson futile.
The first overruled objection was about a different line of
questioning and the court’s ruling on it was proper. The video
depicted four buys. The third one involved Wilson. The
prosecutor played the video and asked Hernandez to tell her to
stop the video when there was a controlled buy. Hernandez told
her to stop and said, “Right there is fine. This is the second
controlled narcotics purchase. And, again, we’re getting live
information from our surveillance team of who our informant is
meeting with every time.” Wilson raised a hearsay objection,
which the court properly overruled. Hernandez had not offered
any out of court statement; there was no hearsay.
The second overruled objection Wilson cites came after
Hernandez made the first statement. That ruling cannot support
his argument that an earlier objection would have been futile.
Wilson forfeited this claim.
B
Wilson’s second forfeited issue is about Hernandez’s gang
testimony.
Wilson challenges six statements. He says much of this
testimony was irrelevant, it was more prejudicial than probative,
and it was improper opinion testimony. These statements are in
the order in which Hernandez made them at trial.
1) The prosecution asked Hernandez about the
condition of the neighborhood before the task force
investigation. Hernandez said, “the easiest way to
25
explain [it] was fear.” People were scared and
intimidated by large groups of gang members
wearing gang-affiliated colors and hats. The gangs
affected the community’s freedom to do things like go
shopping without being afraid. Wilson did not object.
2) The Rollin’ 40s had a “violent reputation. They’re
known as a retaliatory criminal street gang.” Wilson
did not object.
3) The prosecution asked Hernandez whether drug sales
affected the community. Hernandez described two
incidents in the area. Once, a rival gang shot
multiple members of the Rollin’ 40s. Hernandez
helped capture one of the shooters. In another
incident, people fought in the street. Someone who
was not part of the gang left and returned with a
machete. “And, luckily, I was there and I was able to
stop something bad from happening.” Hernandez
arrested that person for assault with a deadly
weapon. Wilson did not object.
4) The prosecution asked how the community felt after
the task force investigation. Hernandez said people
are more excited about certain businesses.
Community members said they are “ ‘not [] scared to
go into the area,’ and things like that.” Wilson did
not object.
5) After Hernandez said the crime rate in the area
decreased, the prosecution asked how much it
decreased. “I want to say over 10 percent, but I don’t
recall the number.” Wilson objected on hearsay
grounds. The court overruled the objection on that
26
ground but said foundation would be a proper
ground. The court told the prosecutor to lay a
foundation.
6) Hernandez disputed Wilson’s claim about having a
job at a pet store in the shopping complex. The
prosecutor asked why gang members would want to
give the appearance of being employed at a certain
location. Hernandez replied that he is an expert on a
different gang in the area. He saw a pattern of
members of that gang telling store owners the gang
members were going to work in their stores and
provide security. If an owner refused, younger gang
members would “steal, vandalize, cause trouble for
that owner.” After that, the owner might put the
gang member on payroll or pay the gang member
cash, depending on the gang member’s willingness to
act on threats, the owner’s relationship with law
enforcement, and the owner’s level of fear.
Hernandez had seen this pattern “again and again”
in other gangs, as well. Wilson did not object.
Wilson forfeited these claims by failing to make a specific
and timely objection in the trial court. (Demetrulias, supra, 39
Cal.4th at p. 20.) On appeal, he says he “objected several times to
the majority of this testimony.” The record does not support this
contention. Of the six statements he challenges, he objected to
just one, the fifth statement. Wilson failed to object to the
majority of the statements he challenges.
As to the fifth statement, the court properly denied the
objection because the ground Wilson stated, hearsay, did not
apply. The court aided Wilson by suggesting the ground of lack of
27
foundation and telling the prosecution to elicit a foundation. This
was not an abuse of discretion.
Wilson did make two objections to Hernandez’s gang
testimony before the statements he challenges on appeal, but this
does not prove objections would have been futile. The first
objection was a foundation objection when Hernandez began to
talk about what the area was like before the investigation. The
court told the prosecution to lay a foundation, and Hernandez
testified about his work in the area and the hundreds of times he
had been there. The same thing happened when Wilson raised a
foundation objection after the prosecution asked how the Rollin’
40s affected the community. This does not prove objections would
have been futile.
Fatal to Wilson’s appellate claims is his failure to object on
the grounds he offers on appeal: relevancy, prejudice greatly
outweighing probative value, and improper opinion testimony. In
the relevant instances where he did object, he never raised these
grounds.
Wilson has forfeited his claims about Hernandez’s
testimony.
V
Wilson has not demonstrated his counsel was ineffective for
failing to object to portions of Hernandez’s testimony.
Wilson offers two arguments. He says his counsel should
have objected to Hernandez’s testimony about the video on the
basis of improper opinion testimony. He also says his counsel
should have objected to Hernandez’s gang testimony, the six
statements we laid out in section IV, on the basis of being more
prejudicial than probative.
28
A defendant has the burden of proving ineffective
assistance of counsel. (People v. Delgado (2017) 2 Cal.5th 544,
559.) To establish ineffectiveness, a defendant must show
counsel’s performance fell below an objective standard of
reasonableness and, but for counsel’s error, it is reasonably
probable there would have been a different result. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688.)
We defer to counsel’s reasonable tactical decisions and
presume counsel acted within the wide range of reasonable
professional assistance. (Mai, supra, 57 Cal.4th at p. 1009.)
Failure to object rarely establishes ineffective legal
representation. (People v. Avena (1996) 13 Cal.4th 394, 421.) On
direct appeal, if the record does not show the reason for counsel’s
challenged actions or omissions, we affirm the conviction unless
there could be no satisfactory explanation. (People v. Anderson
(2001) 25 Cal.4th 543, 569.)
It is not reasonably probable there would have been a
different result had trial counsel objected. As to Hernandez’s
testimony about the video, the jury viewed the video themselves
and defense counsel questioned Hernandez extensively about
what the video showed and did not show. Hernandez ultimately
agreed the video did not show Wilson reaching for the money and
Hernandez said he was making an “educated guess” that Taylor
handed Wilson the money. The jury heard the informant’s
testimony about Taylor handing Wilson the money and viewed
the video. The jury could reasonably rely on the informant’s
testimony about the August sale and, or perhaps instead, could
reasonably make the same educated inference as Hernandez
about what happened to the money. It is not reasonably probable
29
the jury would have come to a different conclusion absent
Hernandez’s testimony.
The same is true of the gang testimony. The court struck
the punishment for Wilson’s gang enhancement, and Wilson does
not challenge the jury’s true finding for the gang enhancement on
appeal. Given the testimony of the informant and the
corroborating video, it is not reasonably probable, absent the
gang statements Wilson challenges, that the jury would have
found he did not make the August sale.
VI
There is no cumulative error.
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
.
30