People v. Clark CA2/2 ( 2016 )

Filed 6/22/16 P. v. Clark CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B263500
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA398207)
v.
JONATHAN JOVAN CLARK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Stephan
A. Marcus, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jonathan Jovan Clark (defendant) contends that the prosecution’s
peremptory challenges of two African-American prospective jurors were motivated by
group bias, and that the trial court improperly overruled his Wheeler/Batson objections
made on that ground.1 Defendant also contends that his sentence enhancement violated
principles of double jeopardy. We find no merit to defendant’s contentions, and affirm
the judgment.
BACKGROUND2
Procedural history
In a three-count information, defendant was charged in count 1 with the murder of
Sergio Madrigal, in violation of Penal Code section 187, subdivision (a),3 and in counts 2
and 3, with second degree robbery, in violation of section 211. The information alleged
that the murder was committed while defendant was engaged in the commission of a
robbery within the meaning of section 190.2, subdivision (a)(17). As to all three counts,
it was alleged pursuant to section 12022.53, subdivision (d), that defendant personally
and intentionally discharged a firearm, causing great bodily injury and death to the
victim, and that he personally used and intentionally discharged a firearm within the
meaning of section 12022.53, subdivisions (b) and (c).
A jury found defendant guilty of all three counts as charged, and found true all of
the special allegations. Defendant waived his right to counsel and was permitted to
represent himself in posttrial proceedings. Defendant brought a motion for new trial,
which the trial court denied. On March 27, 2015, the court sentenced defendant to life in
prison without the possibility of parole as to count 1, plus an additional 25 years to life
pursuant to section 12022.53, subdivision (d). The court imposed the upper term of five
1 See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), and Batson v. Kentucky
(1986) 476 U.S. 79 (Batson).
2 As this appeal does not present any issues related to the trial evidence, but only to
pretrial and posttrial proceedings, we do not summarize the evidence presented.
3 All further statutory references are to the Penal Code, unless otherwise indicated.
2
years as to count 2, plus 25 years to life pursuant to section 12022.53, subdivision (d),
and stayed the term pursuant to section 654. As to count 3, the court imposed the upper
term of five years, plus 25 years to life pursuant to section 12022.53, subdivision (d), to
run consecutively to the sentence on count 1. The trial court also imposed mandatory
fines and fees, and direct victim restitution. Defendant was given 1,024 actual days of
custody credit.
Defendant filed a timely notice of appeal from the judgment.
Relevant peremptory challenges
Prospective Juror No. 4
Juror No. 4 stated that she was married, lived in Los Angeles, was an Army
veteran, and a retired clerk for the United States Post Office. She worked as a
subcontractor for a company under contract with the Transportation Security
Administration (TSA). Her husband was unemployed, and her sister-in-law worked for
the Los Angeles Airport Police. She had one son, who was disabled and unemployed,
and two daughters, one who worked as a cosmetologist and the other as a foster parent.
Juror No. 4 had been the victim in three crimes in the past: three stolen cars and an
assault. Her mother and sister had been crime victims as well. Juror No. 4 had served on
a civil jury and on a criminal jury about 20 years before. The criminal case was not
similar to the instant case, both juries reached verdicts, and she understood the reasonable
doubt standard of proof. Juror No. 4 stated that she watched crime shows on television,
both real life shows and shows that were “just . . . entertainment.” The several “CSI”
shows she watched were entertainment, and she said that she would follow the law rather
than what she saw in those shows.
When the prosecution exercised a peremptory challenge against Juror No. 4,
defense counsel interposed a Wheeler/Batson objection and noted for the record that
defendant and Juror No. 4 were both African-American. The court found that defendant
had failed to make a prima facie case to support the objection, but allowed the prosecutor
to state her reasons for the challenge. The prosecutor replied that Juror No. 4 worked for
a contractor for the TSA, and she had concerns about postal workers, TSA employees,
3
and those who worked with the TSA.4 The prosecutor also expressed concern that Juror
No. 4 watched a number of the CSI shows and other law enforcement shows, and seemed
to think some of them were real.5 The court found a peremptory challenge against one
African-American did not alone demonstrate a prima facie case of group bias, and that if
a prima facie case had been made, it would find the prosecution’s reasons to be race
neutral and not based on a cognizable class.
Defense counsel argued that Juror No. 4 “seemed fair and impartial,” that she was
not employed directly by the TSA, and that most of the prospective jurors indicated that
they watched CSI-type television shows.
Defense counsel observed there were no remaining African-American jurors in the
jury box, and three remained in the audience. The court noted that prospective Juror No.
7 (No. 2045) was an African-American probation officer whom he intended to excuse
due to his late arrival, but offered to have him stay if defense counsel preferred. Defense
counsel acknowledged that Juror No. 7 had missed 45 minutes of voir dire, but he
preferred to have him stay.6 The court overruled the Wheeler/Batson objection,
reiterating that the defense had not demonstrated a prima facie case, while also finding
that the prosecutor’s reasons appeared to be race neutral.
4 The prosecutor added, “Similarly, I have a sort of bias against engineers, for
similar reasons, sort of cutting in possibly a different direction.” Juror No. 4 did not say
she or anyone she knew was an engineer.
5 The prosecutor was concerned with what she termed the “CSI effect.” (See
generally, Robinson v. State (Md.Ct.App. 2014) 84 A.3d 69, 74-77.)
6 Juror No. 7 remained, but was soon challenged by the prosecutor, without
objection by defense counsel.
4
Prospective Juror No. 147
In response to the court’s questioning, Juror No. 14 stated that he was married
with one son, employed as an aircraft machinist, and lived in the South Bay. After he
was drafted, Juror No. 14 enlisted in the Navy, but because he could not swim well, he
left the service while still a recruit, and now swims well. He had served on two juries,
one civil and one criminal. The charges in the criminal case were similar to those in the
instant case, and the jury reached a verdict. The civil jury had deadlocked and did not
reach a verdict, despite genuine effort by the jurors. He understood the court’s
instruction that one witness, if believed, could be enough to prove a fact, and would be
able to follow that rule. Juror No. 14 stated that he had never required help from law
enforcement.
Neither the prosecutor nor defense counsel questioned Juror No. 14, and he moved
into the place of Juror No. 12 after another juror was excused. The prosecutor challenged
him, and the defense objected. The court found a prima facie case of group bias. The
prosecutor gave the court three reasons for the challenge. First, she explained that Juror
No. 14 had only one son, which she thought might cause him to identify with defendant’s
mother, who had just one surviving son. Second, he had sat on a civil jury which had
been unable to reach a verdict. The prosecutor was uncomfortable with jurors who had
served on hung juries, but more so when they were civil cases, as they do not require
unanimous verdicts. Third, his military service record gave her the impression that he
had been a “draft dodger,” because he had enlisted in the Navy to avoid the Army draft,
knowing he could not swim. His statement that he now could swim appeared to her to be
an open admission of his dishonesty, and she did not want to seat any juror with no
shame about his dishonesty.
7 Defendant refers to Juror No. 0213 in his briefs as Juror No. 12, whereas
respondent refers to him as Prospective Juror No. 0213. As he was Juror No. 14 while
questions were asked of him, having sat in the place of Juror No. 12 for only a moment,
we refer to him as Juror No. 14.
5
Defense counsel countered that he did not interpret Juror No. 14’s military
experience as suggesting he was a draft dodger, because he thought that the Navy could
have sent him to the Army. Counsel also argued that defendant’s mother had several
children, and the jury need not know that defendant was her only living son. The trial
court found it “problematic” that the prosecutor had not asked any questions of Juror No.
14, and that her draft dodger conclusion was a rather complicated analysis. However, the
court found the prosecutor’s reasons to be race neutral, and denied the motion.
The empaneled jury
During trial the court stated that that the empaneled jury included five Caucasian
jurors and three African-American jurors. Defense counsel believed one of the African-
American jurors might be Caucasian, but agreed that the juror could be African-
American.
DISCUSSION
I. Wheeler/Batson objection
A. Underlying legal principals
Defendant contends that the prosecutor improperly exercised two racially based
peremptory challenges against two African-American prospective jurors, and that the trial
court erred in overruling his Wheeler/Batson objections.
The use of peremptory challenges to remove prospective jurors solely on the basis
of a presumed group bias “violates both the equal protection clause of the United States
Constitution and the right to trial by a jury drawn from a representative cross-section of
the community under article I, section 16 of the California Constitution. [Citations.]”
(People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) In reviewing a Wheeler/Batson
objection, the trial court ordinarily engages in a three-stage inquiry: the first stage
requires the objecting party to make a prima facie showing of prohibited group bias; in
the second stage, reached only if the objecting party has successfully made a prima facie
showing, the burden shifts to the party who exercised the peremptory challenge to give a
nondiscriminatory reason; and in the third stage, the court determines whether the
objecting party has proven purposeful discrimination. (People v. Silva (2001) 25 Cal.4th
6
345, 384; Purkett v. Elem (1995) 514 U.S. 765, 767.) “The ultimate burden of persuasion
regarding [discriminatory] motivation rests with, and never shifts from, the opponent of
the strike. [Citation.] The three-step procedure also applies to state constitutional claims.
[Citations.]” (Lenix, supra, 44 Cal.4th at pp. 612-613.)
During the first stage, it is presumed that the prosecution uses its peremptory
challenges in a constitutional manner. (Wheeler, supra, 22 Cal.3d at pp. 278-281.) To
rebut that presumption and establish a prima facie case of discrimination, the moving
party is required to produce sufficient evidence to show that “‘the totality of the relevant
facts gives rise to an inference of discriminatory purpose.’ [Citation.]” (Johnson v.
California (2005) 545 U.S. 162, 168, 170; see also People v. Thomas (2012) 53 Cal.4th
771, 793-794.) Only after a prima facie showing is made will the burden shift to the
challenging party to articulate a race neutral reason for the challenge. (Batson, supra,476 U.S. at p. 94; Lenix, supra, 44 Cal.4th at pp. 612-613.)
During the second stage, the race neutral reasons for the challenge must be
“‘“clear and reasonably specific” [but] ‘need not support a challenge for cause, and even
a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror
may be excused based upon facial expressions, gestures, hunches, and even for arbitrary
or idiosyncratic reasons. [Citations.]” (Lenix, supra, 44 Cal.4th at p. 613, quoting
Batson, supra, 476 U.S. at p. 98, fn. 20.)
The inquiry enters the third stage once the trial court is satisfied that a race neutral
reason has been articulated; the burden then shifts back to the objecting party “to show
the prosecutor excused prospective jurors for discriminatory reasons [citation], not
merely that some of the nondiscriminatory reasons offered by the prosecutor are not
supported by the record. In assessing the prosecutor’s credibility, the trial court may, but
is not required to, give weight to the fact that he or she has offered some reasons that do
not withstand analysis.” (People v. Taylor (2009) 47 Cal.4th 850, 891 (Taylor).)
B. No prima facie showing as to Juror No. 4
Defendant argues that the trial court’s error can be demonstrated with a
comparative juror analysis, which would show that the reasons given by the prosecutor
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for her two challenges at issue were pretexts for racial bias. Respondent notes that a
comparative analysis is not appropriate to review Juror No. 4’s first-stage inquiry.
“Whatever use comparative juror analysis might have in a third-stage case for
determining whether a prosecutor’s proffered justifications for his strikes are pretextual,
it has little or no use where the analysis does not hinge on the prosecution’s actual
proffered rationales.” (People v. Bonilla (2007) 41 Cal.4th 313, 350 (Bonilla).)
As respondent further notes, the trial court’s invitation to the prosecutor to state
reasons does not now mandate a comparative analysis. (See People v. Taylor (2010) 48
Cal.4th 574, 616-617.) The California Supreme Court has “encouraged trial courts to ask
prosecutors to give explanations for contested peremptory challenges, even in the absence
of a prima facie showing. [Citation.] [I]f a court ultimately concludes that a prima facie
showing has not been made, the request for and provision of explanations does not
convert a first-stage Wheeler/Batson case into a third-stage case.” (People v. Howard
(2008) 42 Cal.4th 1000, 1020.)
Defendant contends that the trial court retroactively transformed the Juror No. 4
objection into a third-stage inquiry when the court found a prima facie case as to Juror
No. 14 on the ground that he was the second African-American prospective juror to be
challenged. Defendant infers this because the court stated: “[I]n the previous Wheeler
motion by the defense, . . . I didn’t think a prima facie case had been made, because it
basically revolved around a single juror; however, now that there are two African-
American jurors . . . , I do think there is a prima facie case.” Defendant’s inference is not
reasonable. There is nothing in the trial court’s statement that can be construed as a nunc
pro tunc modification of its earlier ruling that defendant had not made a prima facie
showing as to Juror No. 4. Further, the court asked only for the prosecutor’s reasons for
challenging Juror No. 14, and did not conduct a second-stage inquiry as to Juror No. 4.
We agree with respondent that defendant failed to make a prima facie showing as to Juror
No. 4.
Defendant argues that the trial court erred by improperly basing its ruling solely
on the fact that Juror No. 4 was the first African-American to be excused by the
8
prosecution. We disagree, as defendant’s stated reasons for objecting were simply that
Juror No. 4 was one of only five African-American prospective jurors, and that she
seemed to defense counsel to be fair and impartial.8
Under such circumstances, the trial court did not err. “‘“[T]he exclusion of a
single prospective juror may be the product of an improper group bias. As a practical
matter, however, the challenge of one or two jurors can rarely suggest a pattern of
impermissible exclusion.”’ [Citations.]” (Bonilla, supra, 41 Cal.4th at p. 343, fn.
omitted.) Further, a small “numerical showing alone . . . falls short of a prima facie
showing [citation] because the small number of African-Americans in the jury pool
makes ‘drawing an inference of discrimination from this fact alone impossible.’
[Citations.]” (People v. Harris (2013) 57 Cal.4th 804, 835.) Moreover, three remaining
African-American prospective jurors were ultimately accepted by the prosecution and
seated. Although this circumstance “is not conclusive, it is ‘an indication of the
prosecutor’s good faith in exercising his peremptories.’” (People v. Dement (2011) 53
Cal.4th 1, 20.)
In any event, even if we agreed that defendant’s objection became a third-stage
inquiry, we would not undertake a comparative juror analysis. A comparative juror
analysis requires the comparison of “the voir dire responses of the challenged prospective
jurors with those of similar jurors who were not members of the challenged jurors’ racial
group, whom the prosecutor did not challenge. [Citation.]” (People v. O’Malley (2016)
62 Cal.4th 944, 975 (O’Malley).) “If a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar nonblack who is permitted to serve,
that is evidence tending to prove purposeful discrimination to be considered at Batson’s
third step. [Citation.]” (Miller-El v. Dretke (2005) 545 U.S. 231, 241; see also Lenix,
supra, 44 Cal.4th at p. 621.)
8 Defense counsel observed that Juror No. 4 was the only African-American
prospective juror in the jury box, other than Juror No. 7, who was about to be excused for
cause, and only three remained in the audience. Defendant conceded that the excusal of
Juror No. 7 was justified.
9
Where, as here, the defendant did not request a comparative juror analysis in the
trial court, the reviewing court’s obligation to do conduct one arises only “when a
defendant relies on such evidence and the record is adequate to permit the comparisons.
[Citation.]” (People v. Williams (2013) 56 Cal.4th 630, 662, citing Lenix, supra, 44
Cal.4th at p. 607, italics added.) Even then, when no comparative analysis was made in
the trial court, appellate review is necessarily circumscribed, as the prosecutor did not
have the opportunity to provide reasons for retaining jurors who gave answers similar to
those who were challenged. (Lenix, supra, 44 Cal.4th at pp. 622-624.) “Defendants who
wait until appeal to argue comparative juror analysis must be mindful that such evidence
will be considered in view of the deference accorded the trial court’s ultimate finding of
no discriminatory intent. [Citation.]” (Id. at p. 624; see also Hernandez v. New York
(1991) 500 U.S. 352, 365.)9
A “‘comparative juror analysis on a cold appellate record has inherent limitations.’
[Citation.] In addition to the difficulty of assessing tone, expression and gesture from the
written transcript of voir dire, we attempt to keep in mind the fluid character of the jury
selection process and the complexity of the balance involved. ‘Two panelists might give
a similar answer on a given point. Yet the risk posed by one panelist might be offset by
other answers, behavior, attitudes or experiences that make one juror, on balance, more or
less desirable. These realities, and the complexity of human nature, make a formulaic
comparison of isolated responses an exceptionally poor medium to overturn a trial court’s
factual finding.’ [Citation.]” (Taylor, supra, 47 Cal.4th at p. 887.) Here, defendant
relies on such an exceptionally poor medium by comparing a few isolated responses,
making cursory references to unnamed prospective jurors, failing to mention their other
responses, what race they were, and except in the case of the alternates, whether they
were challenged or ultimately seated.
9 We reject defendant’s contention, made without citation to authority, that the
prosecutor’s reasons for challenging both jurors must be reviewed de novo. We
determine only whether substantial evidence supports the trial court’s conclusions.
(People v. Johnson (2015) 61 Cal.4th 734, 755.)
10
Defendant seeks to compare the prosecutor’s reasons relating to Juror No. 4’s
employment and television viewing with other jurors’ responses. Because the name of
defendant’s employer, a TSA contractor, was “Acquired Data Systems,” and the
prosecutor made a comment about engineers, defendant speculates that Juror No. 4’s
work involved the use of data systems. Defendant then observes that another (unnamed)
juror stated that he worked with data systems, while another (unnamed) juror worked as a
program technician, and a seated alternative juror worked in data base management.
Defendant also points out that a seated juror’s boyfriend worked for the TSA.
As to Juror No. 4’s television viewing, defendant notes that after the prosecutor
asked the prospective jurors collectively whether any of them watched crime shows such
as CSI or Law and Order, she said, “I see some heads nodding, hands going up,” and that
she later asked the panel whether anyone else would have different answers. Again,
defendant omits material details, specifically, that Juror No. 4 thought that some crime
shows represented reality, and the prosecutor’s stated concern about a “CSI effect.”
Defendant also neglects to mention that by asking for different answers, the prosecutor
was referring to questions asked of Juror Nos. 1 and 4 about whether they thought DNA
evidence or a video of the crime was required for proof beyond a reasonable doubt. The
jurors were not asked about their belief that the shows represented reality. In any event,
not only is defendant’s comparison strained, he does not cite any evidence as to who the
hand-raising jurors were, whether they thought some crime shows represented reality, or
whether they were ultimately challenged or seated.
In sum, defendant has found a few isolated similarities in juror responses, which
are without comparable context, as he has not adequately referred to other information,
such as behavior, attitudes, or experiences of unchallenged jurors that might have
demonstrated that race was the only material distinguishing feature of Juror No. 4.
Further, defendant did not ensure that the record was adequate to permit a comparison,
such as by questioning jurors who gave one or two similar answers about their attitudes
or experiences, in order to determine whether they were otherwise comparable to Juror
No. 4. Under such circumstances, and because defendant did not make a prima facie
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showing as to Juror No. 4, we are not obligated to undertake such a comparison, and
indeed, find it infeasible on this record. (See Lenix, supra, 44 Cal.4th at p. 607.)
C. Juror No. 14
Despite the heading: “Comparative juror analysis demonstrates that the race-
neutral reasons stated by the prosecutor were a pretext for discrimination,” defendant
fails to compare Juror No. 14 to any other juror.
Regarding the prosecutor’s third stated reason for excluding Juror No. 14, the
inability to reach a verdict while serving on a civil jury, defendant almost draws a
comparison with unspecified jurors. Defendant believes that if the prosecutor had asked
other jurors with jury experience, one or more of them might have reported serving on a
hung jury. Regarding the other two reasons given by the prosecutor, defendant merely
finds them “ridiculous.” We thus construe defendant’s arguments with regard to Juror
No. 14, not as a comparative analysis, but rather as a contention that he met his third-
stage burden at the Wheeler/Batson hearing to show the prosecutor excused Juror No. 14
for discriminatory reasons. (See Taylor, supra, 47 Cal.4th at p. 891.)
The sole question in an appeal challenging the trial court’s third-stage ruling “is
whether the trial court correctly ruled that the defense did not satisfy its burden of
demonstrating discriminatory motivation.” (O’Malley, supra, 62 Cal.4th at p. 975.) “‘At
this stage, “implausible or fantastic justifications may (and probably will) be found to be
pretexts for purposeful discrimination.” [Citation.] In that instance the issue comes
down to whether the trial court finds the prosecutor’s race-neutral explanations to be
credible.’. . . [Citations.]” (People v. Johnson, supra, 61 Cal.4th at p. 755, quoting
Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339, and Purkett v. Elem, supra, 514 U.S.
at p. 768.) “‘Credibility can be measured by, among other factors, the prosecutor’s
demeanor; by how reasonable, or how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing
credibility, the court draws upon its contemporaneous observations of the voir dire. It
may also rely on the court’s own experiences as a lawyer and bench officer in the
12
community, and even the common practices of the advocate and the office that employs
him or her. [Citation.]” (Lenix, supra, 44 Cal 4th at p. 613, fn. omitted.)
“‘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 . . . . All that matters is that the prosecutor’s
reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the
sense of being nondiscriminatory.’ [Citation.]” (O’Malley, supra, 62 Cal.4th at p. 975.)
“‘[We] give great deference to the trial court’s ability to distinguish bona fide reasons
from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned
effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled
to deference on appeal. [Citation.]’ [Citation.]” (Lenix, supra, 44 Cal 4th at p. 614, fn.
omitted.)
Defendant contends that the prosecutor’s failure to ask questions of Juror No. 14
demonstrates that all her reasons to challenge him were pretextual. This is not a case
where no questions were asked of the challenged juror, indeed the trial court did much of
the voir dire and questioned Juror No. 14 as much as the other jurors. When defendant
objected to the challenge the court noted that the prosecutor failed to ask additional
questions of Juror No. 14, and found it problematic, but nevertheless believed that the
reasons given were nondiscriminatory. This demonstrates that the court made a sincere
and reasoned effort to evaluate the justifications offered, and we thus review the trial
court’s conclusions with deference. (See Lenix, supra, 44 Cal 4th at p. 614.)
Defendant criticizes the prosecutor’s reason for challenging Juror No. 14 in part
because he was unable to reach a verdict while serving on a civil jury. “Of course, the
circumstance that a prospective juror has previously sat on a hung jury is a legitimate,
race-neutral neutral reason for exercising a strike. [Citations.]” (People v. Manibusan
(2013) 58 Cal.4th 40, 78.)
The two reasons that defendant challenges were: (1) that Juror No. 14 had only
one son, and thus might identify with defendant’s mother, who had only one surviving
son; and (2) that he avoided military service by joining the Navy, then failed to learn to
13
swim until after his early discharge, suggesting dishonesty. Defendant takes issue with
the first reason because defendant’s mother also had two other children. As those
children were daughters, we do not follow defendant’s logic. Neither of these
justifications was implausible or fantastic, and defendant’s opinion that the prospective
jurors were acceptable “miscasts the inquiry.” (People v. Hensley (2014) 59 Cal.4th 788,
803.) Unlike this court, the trial court was able to observe the prosecutor’s demeanor as
she gave explanations, as well as the juror’s demeanor when he spoke about his son and
when he claimed he was unable to swim as a draft-eligible young man but could swim
just fine now. We thus defer to the court’s finding that the prosecutor’s concern about
Juror No. 14’s parental empathy and his appearance of dishonesty were sincere and
racially neutral reasons for the challenge. (See Lenix, supra, 44 Cal.4th at p. 614.)
We conclude that substantial evidence supports the trial court’s ruling. Further,
the jury ultimately included at least two, and possibly three African-American jurors.
“Although not conclusive, the fact that the jury included a member of the group allegedly
discriminated against ‘is an indication of good faith in exercising peremptories.’
[Citation.]” (People v. Johnson, supra, 61 Cal.4th at p. 760.)
II. Double Jeopardy
Defendant contends that the firearm enhancement of 25 years to life under section
12022.53, subdivision (d), violates principles of double jeopardy, as the same fact was
also used to find murder in the first degree. Defendant concedes that California Supreme
Court authority has rejected a similar argument in People v. Izaguirre (2007) 42 Cal.4th
126, 130-134, and People v. Sloan (2007) 42 Cal.4th 110, 115-124. Defendant disagrees,
but acknowledges that this court is bound by the decisions of the California Supreme
Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As
defendant has raised the issue solely for the express purpose of preserving it for later
review, and we must follow our high court’s decisions, we reject defendant’s contention
without further discussion.
14
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
15