People v. Cardenas-Jacobo CA1/2 ( 2024 )

Filed 2/27/24 P. v. Cardenas-Jacobo CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A165644
v.
LUIS JESUS CARDENAS-JACOBO, (San Mateo County
Super. Ct. No. 21-SF-
Defendant and Appellant.
013873-A)
Luis Jesus Cardenas-Jacobo (defendant) appeals from convictions of
first degree burglary and other offenses. He contends his convictions must be
reversed and the case remanded for a new trial because the trial court’s
denial of his objection to the prosecutor’s use of a peremptory challenge was
erroneous under Code of Civil Procedure section 231.7. We find he failed to
preserve his claims for appeal and affirm the judgment.
BACKGROUND
The facts underlying defendant’s offenses, for the most part, are not
relevant to the sole issue on appeal. Suffice to say the charges arose from an
entry into, and taking of personal property from, the parking garage of an
apartment complex. A police officer familiar with the garage and apartments
viewed a surveillance video and recognized defendant from prior interactions
as the person in the video. One of the stolen items was found in defendant’s
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garage, less than a mile from the apartment complex. The other stolen item
was found at a Holiday Inn about one block from the apartment complex.
Defendant was charged by information filed on February 1, 2022, with
felony first degree burglary (Pen. Code, § 460, subd. (a)) (count 1); felony
grand theft of personal property (id., § 487, subd. (a)) (count 2); misdemeanor
possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 3); and
misdemeanor possession of a controlled substance (id., § 11377, subd. (a))
(count 4). Count 1 alleged that the offense was a serious felony (Pen. Code,
§ 1192.7, subd. (c)) and a violent felony (id., § 667.5, subd. (c)(21) [another
person, other than an accomplice, present in residence]) and was committed
while defendant was released from custody on bail or his own recognizance
(id., § 12022.1), and three prior convictions (id., § 1203, subd. (e)(4)) were
alleged as to both felony counts.
Defendant entered no contest pleas to the two misdemeanor counts and
the court granted his unopposed motions to bifurcate the Penal Code
section 12022.1 allegation and prior conviction allegations from trial. He
waived jury trial on these allegations.
A jury found defendant guilty of first degree burglary and found the
Penal Code section 667.5 allegation true; the jury found him not guilty of
grand theft but guilty of the lesser included offense of petty theft (Pen. Code,
§ 484). The court then found the bifurcated Penal Code section 12022.1 and
prior conviction allegations true.
After denying a defense motion for a new trial, the trial court struck
the Penal Code section 667.5 finding for purposes of sentencing, then
sentenced defendant to the middle term of four years for the burglary and a
concurrent six-month term for the three misdemeanors and ordered
defendant to pay restitution and various fines and fees.
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Defendant filed a timely notice of appeal.
DISCUSSION
I.
Code of Civil Procedure Section 231.7
“ ‘Before January 1, 2022, trial courts examined peremptory challenges
under the three-step inquiry established by Batson v. Kentucky (1986)
476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. Recognizing the
limitations of the Batson/Wheeler inquiry, the Legislature enacted Assembly
Bill No. 3070 (2019-2020 Reg. Sess.) to add Code of Civil Procedure
section 231.7,[1] which creates new procedures for identifying unlawful
discrimination in the use of peremptory challenges.’ (People v. Jaime (2023)
91 Cal.App.5th 941, 943, fn. omitted (Jaime).)”2 (People v. Ortiz (2023)
96 Cal.App.5th 768, 791.) The Legislature found that “peremptory challenges
are frequently used in criminal cases to exclude potential jurors from serving
based on their race, ethnicity, gender, gender identity, sexual orientation,
national origin, or religious affiliation, or perceived membership in any of
those groups” and “the existing procedure for determining whether a
peremptory challenge was exercised on the basis of a legally impermissible
reason has failed to eliminate that discrimination.” (Stats. 2020, ch. 318, § 1,
1 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2 Under the Batson/Wheeler analysis, “First, the defendant must make
a prima facie case by showing facts sufficient to support an inference of
discriminatory purpose. (Johnson v. California (2005) 545 U.S. 162, 168.)
Second, if the defendant makes a prima facie showing, the burden shifts to
the prosecutor to offer a permissible, nondiscriminatory explanation for the
strike. (Ibid.) Third, if the prosecutor offers a nondiscriminatory
explanation, the trial court must decide whether that explanation is genuine,
or whether impermissible discrimination in fact motivated the strike. (Ibid.)”
(People v. Battle (2021) 11 Cal.5th 749, 772.)
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subd. (b).) The Legislature stated its intent “to put into place an effective
procedure for eliminating the unfair exclusion of potential jurors based on
race, ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or perceived membership in any of those groups, through
the exercise of peremptory challenges” and for the new law to “be broadly
construed to further the purpose of eliminating the use of group stereotypes
and discrimination, whether based on conscious or unconscious bias, in the
exercise of peremptory challenges.” (Id., subds. (a), (c).)
Section 231.7, subdivision (a), prohibits use of a peremptory challenge
“to remove a prospective juror on the basis of the prospective juror’s race,
ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or the perceived membership of the prospective juror in
any of those groups.” Unlike Batson/Wheeler analysis, which focuses on
“ ‘ “the subjective genuineness of the race-neutral reasons given for the
peremptory challenge, not on the objective reasonableness of those
reasons” ’ ” (People v. Miles (2020) 9 Cal.5th 513, 539) and ultimately asks
whether the opponent of the peremptory challenge has shown purposeful
discrimination (People v. Riccardi (2012) 54 Cal.4th 758, 786, overruled on
other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216), section 231.7
uses an objective standard and provides that the court “need not find
purposeful discrimination to sustain the objection” to a peremptory challenge.
(§ 231.7, subd. (d)(1).) “Under section 231.7, the party objecting to the
peremptory challenge is no longer required to make a prima facie showing of
racial discrimination. Instead, ‘upon objection to the exercise of a peremptory
challenge pursuant to [section 231.7],’ the party exercising the peremptory
challenge must state the reasons for exercising the challenge. (§ 231.7,
subd. (c).) Also, certain reasons for a peremptory challenge are
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presumptively invalid under section 231.7 unless rebutted by clear and
convincing evidence that they are unrelated to the prospective juror’s
perceived membership in a protected group and that the reasons bear on the
juror’s ability to be fair and impartial. (§ 231.7, subd. (e).)” (Jaime, supra,
91 Cal.App.5th at p. 943.)
In deciding whether to sustain an objection under section 231.7, the
trial court “shall evaluate the reasons given to justify the peremptory
challenge in light of the totality of the circumstances.” (§ 231.7, subd. (d)(1).)
The court “shall consider only the reasons actually given and shall not
speculate on, or assume the existence of, other possible justifications for the
use of the peremptory challenge.” (Ibid.) “If the court determines there is a
substantial likelihood that an objectively reasonable person would view race,
ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or perceived membership in any of those groups, as a
factor in the use of the peremptory challenge, then the objection shall be
sustained.” (Ibid.) “[A] ‘substantial likelihood’ means more than a mere
possibility but less than a standard of more likely than not” (§ 231.7,
subd. (d)(2)(B)) and “an objectively reasonable person is aware that
unconscious bias, in addition to purposeful discrimination, [has] resulted in
the unfair exclusion of potential jurors in the State of California.” (Id.,
subd. (d)(2)(A).)
Section 231.7 directs appellate courts to review the denial of an
objection under section 231.7 “de novo, with the trial court’s express factual
findings reviewed for substantial evidence.” (§ 231.7, subd. (j).) “The
appellate court shall not impute to the trial court any findings, including
findings of a prospective juror’s demeanor, that the trial court did not
expressly state on the record. The reviewing court shall consider only
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reasons actually given under subdivision (c) and shall not speculate as to or
consider reasons that were not given to explain either the party’s use of the
peremptory challenge or the party’s failure to challenge similarly situated
jurors who are not members of the same cognizable group as the challenged
juror . . . .” (Ibid.) If it is determined that an objection was erroneously
denied, “that error shall be deemed prejudicial, the judgment shall be
reversed, and the case remanded for a new trial.” (Ibid.)
II.
The Peremptory Challenge and the Trial Court’s Ruling
During voir dire, the prosecutor asked several of the prospective jurors
whether they would feel comfortable identifying the Golden Gate Bridge from
a photograph or postcard of the Bay Area. When prospective juror J.D. was
asked this question, he responded “yes,” and the following colloquy ensued:
“[Prosecutor]: Yeah? Would you feel comfortable pointing out the
Golden Gate Bridge in an aerial picture of the Bay Area?
“[J.D.]: The top of the hills and on the side.
“[Prosecutor]: Okay. And sorry, I don’t mean to embarrass you if I’m
communicating in a way that is difficult for you to understand.
“[J.D.]: Yeah, a little bit. My English is not—broken English.”
The prosecutor continued with a series of questions about whether J.D.
had been able to understand the proceedings, to which he responded in the
affirmative, then asked if he had any language difficulties that he thought
would “prohibit [him] from being an effective juror” in the case. J.D. replied
that he understood “parts,” but that “new words” were hard to understand.
He again answered “yes” when asked if he understood what the judge and
attorneys were saying and if he would be able to understand witnesses.
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Subsequently, the prosecutor exercised her sixth peremptory challenge
to excuse prospective juror J.D. and defense counsel made “a Batson/Wheeler
motion.” The trial court deferred hearing the motion until the next break,
the defense exercised its sixth peremptory challenge, and the jury and
alternates were sworn.
Outside the presence of the jury, defense counsel stated that the
prosecutor’s challenge to J.D. removed the last Hispanic from the jury, the
prosecutor’s previous challenge having also removed a Hispanic prospective
juror (J.C.).3 Defense counsel questioned the validity of the challenge,
arguing that defendant is Hispanic, a defendant is entitled to a jury that is a
cross-section of the community, San Mateo county is over 30 percent
Hispanic, and defendant was left with “no peer or juror representative of [his]
race.”
The prosecutor responded, first, that J.C. (the previously excused juror)
did not “appear to be Hispanic” but rather Filipino, and she challenged him
because “he expressed earlier during voir dire that he would feel sympathetic
towards a defendant and would feel guilty for finding him guilty.” The
prosecutor then explained that she challenged J.D. because of his response to
the hypothetical put to him during voir dire: “My hypothetical to him about
the Golden Gate Bridge and whether or not he would feel confident in
identifying the Golden Gate Bridge in a photograph, and he said no. [¶] I
We follow the practice of the parties and trial court in characterizing
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these jurors as Hispanic, in keeping with the California Supreme Court’s
recognition of “Hispanic individuals” as “ ‘members of a cognizable class for
purposes of Batson/Wheeler motions’ ” (People v. Ramirez (2022)
13 Cal.5th 997, 1087), although we are aware of data indicating that “the
Hispanic and Latino labels are not universally embraced by the population
that has been labeled, even as they are widely used.” (Lopez et al., Pew
Research Center, Who is Hispanic? (Sept. 15, 2022).)
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think that . . . the key issue in this case is being able to identify the
defendant through surveillance footage. And the People are obviously
seeking jurors who would feel comfortable making that decision.” The
prosecutor stated that none of her other peremptory challenges were to
Hispanics and noted that the defense had challenged two prospective jurors
with Hispanic surnames and the two alternates who remained on the jury,
without objection, were Hispanic.
The court denied the “Batson-Wheeler motion,” finding that the
prosecutor’s reasons “were not racially motivated” and “there were good
reasons to . . . use a peremptory challenge on these jurors.” The court noted
that each side had used six peremptory challenges, the ethnicity of two of the
jurors was “unknown to the Court” and “[c]ould be Hispanic origin,” and both
alternates “could also be of Hispanic origin.”
III.
Defendant Forfeited His Section 231.7 Claims by Failing to Raise
Them at Trial.
Defendant contends on this appeal that the prosecutor’s reasons for
excusing J.D. were presumptively invalid under section 231.7,
subdivisions (e)(13), (e)(7) and (g)(1)(C), and the trial court failed to consider
the “totality of the circumstances” as required by section 231.7,
subdivision (d)(1), or find the presumption of invalidity overcome by clear and
convincing evidence as required by section 231.7, subdivision (e). He argues
the trial court’s finding that the reasons were not racially motivated was not
supported by substantial evidence and failed to comply with section 231.7.
Defendant did not make any of these arguments in the trial court:
Defense counsel argued the peremptory challenge to J.D. was invalid under
Batson/Wheeler because it removed the last Hispanic juror from the panel
and, after the prosecutor stated her reasons for the challenge, added only
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that the prosecutor’s reference to the defense having challenged Hispanic
jurors was irrelevant.
“In general, the failure to articulate an objection to a peremptory
challenge forfeits the issue on appeal.” (Jaime, supra, 91 Cal.App.5th at
p. 946; People v. Mills (2010) 48 Cal.4th 158, 170 [“A party must make a
timely and specific objection to the manner in which a trial court conducts
jury selection or the matter is forfeited for appeal”].) In Jaime, as here, the
defense objected to the prosecutor’s exercise of a peremptory challenge under
Batson/Wheeler without mentioning section 231.7 and did not correct the
trial court’s error in applying Batson/Wheeler to determine the issue.
(Jaime, at p. 946.) The Jaime court concluded, however, that the trial court
would have overruled a specific section 231.7 objection if the defense had
raised one, because the record showed that the trial court continued to
analyze the issue under Batson/Wheeler even after the prosecutor informed
the court that the law had changed, and her prior argument was based on
“ ‘the previous standard of law.’ ” (Ibid.) Jaime therefore applied the futility
exception to the forfeiture rule. (Id. at pp. 946-947.) Defendant does not
argue any basis for finding a specific section 231.7 objection would have been
futile in the present case.
Defendant maintains that in the present case, unlike Jaime, “it is
apparent the trial court and the parties understood the motion was required
to be considered in light of the new statutory requirements set forth in
section 231.7.” Neither section 231.7 nor the statutory language describing
the standards to be applied were mentioned by the parties or the trial court.
In defendant’s view, the court’s and parties’ awareness of the statute’s
application is demonstrated by the fact that neither the court nor the
prosecutor discussed whether defense counsel had established a prima facie
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case. A prima facie case is the first step required under Batson/Wheeler
analysis and is not required under section 231.7. (§ 231.7, subd. (c).) But the
absence of reference to whether the defense had made a prima facie case does
not necessarily indicate anyone was aware of or applying section 231.7, as
courts analyzing a Batson/Wheeler issue sometimes skip to analysis of the
third stage—evaluating the prosecutor’s reasons—where the prosecutor offers
reasons for the challenges. (See People v. Riccardi, supra, 54 Cal.4th at
pp. 786-787; People v. Lenix (2008) 44 Cal.4th 602, 610-611, 613, fn. 8.)
Defendant’s reliance on defense counsel’s statement that she did not think
the prosecutor’s reasons were sufficient “as far as the law requires” is
similarly not dispositive: Counsel did not suggest her reference to “the law”
was to section 231.7 rather than the law established under Batson/Wheeler.
Given the absence of any reference to section 231.7 or its language, we find
no basis for defendant’s assertion that the court and parties knew the new
statute governed the proceeding.4
Defendant argues he could not forfeit his claim that the trial court
erred in denying his objection in light of the requirements of section 231.7
because, as of January 1, 2022, as a matter of law, trial courts are required to
assess an objection to a peremptory challenge under section 231.7. The
conclusion of defendant’s argument does not follow from its premise: We
agree that the trial court was required to apply section 231.7 in this case
(§ 231.7, subd. (i)), but this does not excuse defendant from his failure to
object to the trial court’s error. Defendant did not mention the existence of
section 231.7, let alone argue the prosecutor’s reasons were invalid under
4 Section 231.7 became effective over a year before this trial began in
March 2022 (Stats. 2020, ch. 318, eff. Jan. 1, 2021) but did not apply to jury
trials in which jury selection began before January 1, 2022. (§ 231.7,
subd. (i).) There is no question that it should have been applied in this case.
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specific statutory provisions or object to the court applying an incorrect
standard to determine the validity of those reasons.
Defendant ignores the fact that “the purpose of the forfeiture rule is to
encourage parties to bring errors to the attention of the trial court, so that
they may be corrected.” (Jaime, supra, 91 Cal.App.5th at p. 946.) The
rationale for application of the rule is evident here. The errors defendant
now asserts could have been avoided or corrected if he had brought them to
the trial court’s attention and involve factual issues requiring resolution in
the trial court.
Defendant’s primary argument illustrates the point. The prosecutor
stated that she challenged J.D. because of his response to the Golden Gate
Bridge hypothetical. Defendant argues this response was presumptively
invalid under section 231.7, subdivision (e)(13), and not rebutted by clear and
convincing evidence. Section 231.7, subdivision (e)(13), makes presumptively
invalid “[a]ny justification that is similarly applicable to a questioned
prospective juror or jurors, who are not members of the same cognizable
group as the challenged prospective juror, but were not the subject of a
peremptory challenge by that party.”
The prosecutor told the court that J.D. said “no” when asked if he could
identify the Golden Gate Bridge, which was of concern because of the need for
jurors to identify the defendant in surveillance video footage. Defendant
argues the prosecutor was factually incorrect—J.D. in fact responded “yes”—
and her reason triggered section 231.7, subdivision (e)(13), because the
prosecutor continued to question J.D. on this point but asked no additional
questions of two non-Hispanic jurors who also answered “yes” to the
hypothetical and were seated on the jury.
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Defense counsel neither pointed out the prosecutor’s mistake in stating
that J.D. said “no” nor suggested that the prosecutor questioned J.D.
differently from non-Hispanic jurors. Even assuming the trial court was
aware that it needed to analyze defendant’s objection to the peremptory
challenge under section 231.7, the applicability of subdivision (e)(13) to the
facts was not so obvious that the trial court could be expected to recognize it
absent any input from the defense. First, if the defense had corrected the
prosecutor’s assertion that J.D. answered “no,” the essential predicate to
application of this subdivision would have been that J.D., like the other
jurors, answered “yes” to the question whether he could identify the Golden
Gate Bridge. Based on the prosecutor’s (erroneous) representation that J.D.
said “no,” the court did not have reason to address this question. Moreover,
if, as the People suggest, something about J.D.’s response gave reason to
question the reliability of his initial “yes,” and if the trial court had credited
that assertion,5 the trial court might have concluded J.D.’s response was not
the same as those of the two jurors who unequivocally said “yes” to the
5 The People, in the context of an argument pertaining to
Batson/Wheeler analysis, maintain that the prosecutor would not have asked
the follow-up questions she asked J.D. unless the prosecutor “perceived the
juror’s response as indicating his doubtfulness,” and that J.D.’s “logically
unresponsive” reply “confirmed [the prosecutor’s] suspicion.” An assumption
does not substitute for clear and convincing evidence, and we cannot
determine from the transcript whether the assumption is justified by the
underlying facts, but the trial court could have evaluated the situation if
defense counsel had pointed out that the prosecutor was mistaken about
J.D.’s response and that questioning him differently from the other jurors
implicated section 231.7, subdivision (e)(13).
We do not address the People’s arguments that the trial court’s decision
was proper under Batson/Wheeler because defendant has not claimed
otherwise and has challenged the decision solely on the basis that the trial
court failed to apply section 231.7.
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hypothetical. And even if the court concluded that J.D. initially said “yes,” it
still would have needed to determine whether the prosecutor was able to
rebut the presumption of invalidity with clear and convincing evidence that
“an objectively reasonable person would view the rationale as unrelated to”
J.D.’s race or ethnicity (§ 231.7, subd. (e))—i.e., that the prosecutor’s
challenge was solely due to concerns about J.D.’s comfort making the sort of
identification required in this case. In short, had defense counsel alerted the
court to the prosecutor’s factual mistake and raised the section 231.7,
subdivision (e)(13) issue, the trial court could have made the necessary
factual determinations.
Defendant’s arguments regarding section 231.7, subdivisions (e)(7) and
(g)(1)(C), address reasons that might be inferred from the colloquy between
the prosecutor and J.D.—the former if the prosecutor’s questioning is seen as
indicating concern with J.D.’s English language abilities and the latter if J.D.
is seen as giving confusing answers. Because they were not in fact offered by
the prosecutor as reasons for challenging J.D., these provisions would not be
relevant to our review of the trial court’s decision: Section 231.7 requires the
trial court to “consider only the reasons actually given” and “not speculate on,
or assume the existence of, other possible justifications for the use of the
peremptory challenge” (§ 231.7, subd. (d)(1)), and we too are required to
“consider only reasons actually given” and “not speculate as to or consider
reasons that were not given to explain” the use of the peremptory challenge
(§ 231.7, subd. (j).) In any event, these subdivisions of section 231.7 further
illustrate the role of the forfeiture rule in this context, as they depend on
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factual determinations the trial court could have made if alerted to their
potential applicability.6
DISPOSITION
The judgment is affirmed.
6 Section 231.7, subdivision (e)(7), makes “[n]ot being a native English
speaker” a presumptively invalid reason for a peremptory challenge.
Defendant suggests that the prosecutor’s questions to J.D. “appeared to be
more directed at his English language abilities” and argues that the fact
English was not J.D.’s native language “would not have been a valid basis for
a peremptory challenge.” Concern with a prospective juror’s English
language abilities is not necessarily discrimination against a non-native
English speaker; a prosecutor’s “concern for a juror’s ability to understand”
may be a proper basis for a peremptory challenge. (People v. Ortiz, supra,
96 Cal.App.5th at p. 805 [under pre-section 231.7 precedent, prosecutor’s
“ ‘concern for a juror’s ability to understand’ ” is proper basis for challenge if
supported by record].) Had the issue been raised, the trial court would have
had to make the factual determinations necessary to decide whether
section 231, subdivision (e)(7), applied and, if so, whether the prosecutor
rebutted the presumption of invalidity with clear and convincing evidence, for
example, that despite J.D.’s assertions to the contrary, the prospective juror
did not sufficiently understand English.
Section 231.7, subdivision (g)(1)(C), provides that one of the reasons for
peremptory challenges that has “historically been associated with improper
discrimination” is that “[t]he prospective juror provided unintelligent or
confused answers.” This reason is presumptively invalid “unless the trial
court is able to confirm that the asserted behavior occurred, based on the
court’s own observations or the observations of counsel for the objecting
party.” (§ 231.7, subd. (g)(2).) Had the issue been raised, the trial court’s
observations would have determined whether any presumption of invalidity
applied.
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STEWART, P. J.
We concur.
MILLER, J.
MAYFIELD, J. *
People v. Cardenas-Jacobo (A165644)
* Judge of the Mendocino Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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