People v. Jimenez ( 2024 )

Filed 1/3/24; certified for publication 2/2/24 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081267
Plaintiff and Respondent,
v. (Super. Ct. No. SCS319685)
ESTEBAN JIMENEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Maryann D’Addezio Kotler, Judge. Affirmed in part, reversed in part, and
remanded.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Robin Urbanski and Laura Baggett,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Appellant Esteban Jimenez of evading an officer while
driving recklessly (Veh. Code, § 2800.2, subd. (a)) and leaving the scene of an
accident (Veh. Code, § 20002, subd. (a)) and found true a prior strike
allegation. Jimenez appeals, arguing: (1) the prosecutor improperly exercised
a peremptory challenge as to a juror in violation of Code of Civil Procedure 1
section 231.7 and the state and federal constitutions; and (2) there was
insufficient evidence to convict Jimenez of a violation of Vehicle Code
section 20002, subdivision (a).
We conclude: (1) the prosecutor did not violate section 231.7 or
Jimenez’s constitutional rights by exercising the peremptory challenge, and
(2) the evidence was insufficient to establish that Jimenez violated Vehicle
Code section 20002, subdivision (a). Therefore, we affirm Jimenez’s
conviction under Vehicle Code, section 2800.2, subdivision (a) and the prior
strike allegation, and we reverse his conviction under Vehicle Code section
20002, subdivision (a).
I. PROCEDURAL BACKGROUND
On April 6, 2022, the People filed an information charging Jimenez
with evading an officer while driving recklessly (Veh. Code, § 2800.2,
subd. (a), count 1); leaving the scene of an accident, commonly referred to as
“hit and run” 2 (Veh. Code, § 20002, subd. (a), count 2); resisting an officer
(Pen. Code, § 148, subd. (a)(1), count 3); and two counts of possession of a
controlled substance (Health & Saf. Code, §§ 11377, subd. (a), 11350, subd.
(a), counts 4 and 5). The People additionally alleged that Jimenez had a prior
strike conviction (Pen. Code, §§ 667, subds. (b)–(i), 668, & 1170.12).
1 Further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
2 See People v. Dimacali (2019) 32 Cal.App.5th 822, 826 (Dimacali)
(describing an offense pursuant to Vehicle Code section 20002, subdivision (a)
as a “misdemeanor charge of leaving the scene of an accident causing only
property damage . . . commonly referred to as hit and run.”).
2
Jimenez pleaded not guilty to the charges and proceeded to trial. Prior
to trial, the court dismissed count 3 at the People’s request.
Following the close of evidence, the court dismissed counts 4 and 5 on
Jimenez’s motion. The jury found Jimenez guilty of counts 1 and 2 and found
true the prior strike allegation. The court later sentenced Jimenez to the
middle term on count 1, doubled for the strike for a total term of four years.
The court stayed the sentence for count 2 under Penal Code section 654.
On appeal, Jimenez argues that: (1) the court erred by finding no
violation of section 231.7 based on the prosecutor’s exercise of a peremptory
challenge as to Juror Number 8, which also violated his constitutional rights,
and (2) sufficient evidence did not exist to prove Jimenez guilty of leaving the
scene of an accident in violation of Vehicle Code section 20002, subdivision
(a). We discuss each of these contentions in turn.
II. PROSECUTOR’S EXERCISE OF PEREMPTORY CHALLENGE AS TO
JUROR NUMBER 8
We begin with a discussion of the provisions of section 231.7. We will
then discuss the facts as they unfolded during voir dire, and consider those
facts and the trial court findings under section 231.7 in light of those facts.
Finally, we turn to Jimenez’s claims of violations of his constitutional rights.
A. Section 231.7
The Legislature enacted section 231.7, effective in criminal trials
beginning January 1, 2022, to establish “a new process for identifying
unlawful bias in the use of peremptory challenges during jury selection”
because studies showed that the existing Batson/Wheeler analysis, discussed
below, was inadequate to prevent racial discrimination. (Assem. Com. on
Judiciary, Rep. on Assem. Bill No. 3070 (2019–2020 Reg. Sess.) as amended
May 4, 2020, p. 1.) Section 231.7, subdivision (a) prohibits the “use [of] a
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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” (“cognizable groups”). (Id. at
subds. (a), (i), & (k).) Discrimination in violation of this section need not be
purposeful, but may involve “unconscious bias,” which “includes implicit and
institutional biases.” (Id. at subds. (d)(1) & (d)(2)(C).)
Once the opposing party timely objects to the peremptory challenge, the
party seeking to exercise the peremptory challenge must state the reasons
justifying the challenge. (§ 231.7, subd. (c).) The trial court then evaluates
only the given reasons, without speculating on or assuming possible
justification, “in light of the totality of the circumstances” and must sustain
the objection if “there is a substantial likelihood that an objectively
reasonable person would view [actual or perceived membership in a
cognizable group] as a factor in the use of the peremptory challenge.” (Id. at
subd. (d)(1).) The statute defines “substantial likelihood” as “more than a
mere possibility but less than a standard of more likely than not.” (Id. at
subd. (d)(2)(B).) Section 231.7, subdivision (d)(3) provides a non-exhaustive
list of circumstances the court may consider in the analysis. The court must
“explain the reasons for its ruling on the record.” (Id. at subd. (d)(1).)
The statute dictates that certain reasons given by the challenging party
are presumed invalid. (§ 231.7, subd. (e).) Presumptively invalid reasons
include that the prospective juror at issue “[e]xpress[ed] a distrust of or ha[d]
a negative experience with law enforcement or the criminal legal system,” or
the juror “[e]xpress[ed] a belief that law enforcement officers engage in racial
profiling or that criminal laws have been enforced in a discriminatory
manner.” (Id. at subd. (e)(1)–(2).) To overcome the presumption, “the party
4
exercising the peremptory challenge [must] show by clear and convincing
evidence that an objectively reasonable person would view the rationale as
unrelated to a prospective juror’s [actual or perceived membership in a
cognizable group], and that the reasons articulated bear on the prospective
juror’s ability to be fair and impartial in the case.” (Id. at subd. (e).) Clear
and convincing evidence to overcome the presumption exists when the court
“determine[s] that it is highly probable that the reasons given for the exercise
of a peremptory challenge are unrelated to conscious or unconscious bias and
are instead specific to the juror and bear on that juror’s ability to be fair and
impartial in the case.” (Id. at subd. (f).)
Once the court has determined that the party seeking to exercise the
peremptory challenge has overcome the presumption of invalidity as to a
stated reason, the court may consider that stated reason in the section 231.7,
subdivision (d)(1) analysis as to whether it is substantially likely that a
reasonable person would consider that race was a factor in the challenge.
(People v. Ortiz (2023) 96 Cal.App.5th 768, 805 (Ortiz).)
B. Voir Dire Facts
Prospective Juror Number 8 was a Latina who worked as a school
secretary for a school district and had never served on a jury. During voir
dire, the defense attorney asked Juror Number 8 if she would follow the law
even if she disagreed with it, and she responded: “I will always follow the
law. I don’t break the law. However, I see sometimes the law is not—it’s
depending on the color of your skin.” She further explained, “I believe the
law was supposed to be blind, but I don’t think it’s blind. I think there’s—
color of a person or their status, economic status, is a consideration.” At that
time, she stated she could still be fair and follow the law.
5
The prosecutor later asked the prospective jurors if anyone would have
a problem evaluating the testimony of law enforcement officers. Juror
Number 4, a white woman who worked as a librarian for a public library,
volunteered, stating she believes that it is “common” for officers to have
“institutional” bias based on interactions between non-white patrons and law
enforcement she had witnessed. Because of these experiences, she could not
say “say 100 percent that it wouldn’t influence [her] decision.”
The prosecutor then turned to Juror Number 8 because she had
previously mentioned “a person’s race and how that affects law enforcement.”
He asked her if she would “have a difficult time being fair and considering
only the evidence that [is] presented” even if “there’s no evidence that’s
presented” regarding how race affects law enforcement. Juror Number 8
replied, “I think it would be difficult. I’m not saying I couldn’t do it. I also
think that I—I also think implicit bias is definitely a thing that I could do
without knowing I did it.” When the prosecutor again asked her whether “it
would be difficult” to give the testimony of the officers “a fair shake,” she
confirmed, “I like to think it wouldn’t be [difficult to be fair]. But I feel like it
could be one of those things where it’s, like, always in the back of my mind as
much as I try to set it aside.”
After the close of voir dire, the prosecution requested Juror Number 4
be excused for cause, and the defense objected; the court granted the
prosecution’s request. The prosecution also requested the court dismiss six
other jurors because they stated they could not be fair.
After dismissals for cause, the parties began peremptory challenges.
The prosecutor first exercised a peremptory challenge as to Juror Number 16,
a white male teacher who had not previously served on a jury, without
objection from the defense. Next, the prosecutor sought to dismiss Juror
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Number 8 using a peremptory challenge. Defense counsel objected under
section 231.7 because the prospective juror stated “during voir dire she
believes the law has been imposed differently depending on your skin color.”
Pursuant to the section 231.7 analysis, the prosecutor provided the
following reasons for exercising the peremptory challenge: (1) Juror Number
8’s beliefs about the racial bias of law enforcement officers, who would be the
only witnesses in the case; (2) Juror Number 8 was employed by a school
district, which he believed rendered her more likely to give second chances,
especially for actions such individuals may view as not “egregious”; and (3)
Juror Number 8 had not previously served on a jury. The prosecutor
conceded that his first stated reason was presumptively invalid. However, he
argued that clear and convincing evidence established that this reason was
unrelated to conscious or unconscious bias and instead “bear[s] on that juror’s
ability to be fair and impartial in the case. . . .”
In the section 231.7 analysis, the court began by examining the
subdivision (d)(3), factors to determine whether there was “a substantial
likelihood that an objectively reasonable person would view race, ethnicity,
gender, gender identity, sexual orientation, national origin, religious
affiliation, or perceived membership in any of those groups as a factor in the
use of peremptory challenge.” The court noted: (1) the defendant was of the
same perceived cognizable group as the excused juror (id. at (d)(3)(A)(i));
(2) there was no victim (id. at subd. (d)(3)(A)(ii)); (3) at least one of the
People’s witnesses was in the same cognizable group as the juror (id. at
subd. (d)(3)(A)(iii)); (4) race did not bear on the facts of the case (id. at
subd. (d)(3)(B)); (5) the prosecutor did not ask Juror Number 8 many
questions, but he did not ask her different questions from other jurors and
posed the same type of questions as he did to Juror Number 4 (id. at
7
subd. (d)(3)(C)); (6) the prosecutor had otherwise exercised a peremptory
challenge only as to a white male educator (id. at subd. (d)(3)(D)); (7) the
reasons did not appear disproportionately associated with membership in the
cognizable group (id. at subd. (d)(3)(E)); (8) the prosecutor’s reasoning was
supported by the record (id. at subd. (d)(3)(F)); and (9) there was no evidence
that the prosecution had a history of prior discriminatory use of peremptory
challenges (id. at subd. (d)(3)(G)).
The court concluded that the People had not violated section 231.7 in
exercising a peremptory challenge as to Juror Number 8:
“Whether the reason provided is presumptively invalid. I’ll
note that one of the reasons is presumptively invalid. And
whether the reason provided is among the list associated
with improper discrimination. The last reason is.
“On balance, however, I at this time am going to find as
follows. After evaluating the reasons given to justify the
peremptory challenge, in light of the totality of the
circumstances, the Court finds that there is not a
substantial likelihood that an objectively reasonable person
would view race, ethnicity, 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.
“The reasons for the ruling are that [the prosecutor] has, I
believe, sufficiently shown that the reasons for dismissing
this juror are his practice that he does not prefer jurors
that don’t have prior jury service and work in a system that
is prone to second chances, being somewhat forgiving. I do
think that he’s overcome the—shown by clear and
convincing evidence that race is not—the ethnicity and race
of Juror Number 8 was not the reason that he is asking to
have excused and that his exercise is unrelated to her race.
So those will be the Court’s findings.”
8
After the court’s ruling, the prosecutor later exercised additional
peremptory challenges as to two other school district employees, a substitute
teacher who had served on a jury and a retired school secretary who had not
served on a jury. The prosecutor did not challenge all apparently Latino
prospective jurors.
Defense counsel renewed his section 231.7 objection at the conclusion of
peremptory challenges, noting that one alternate was a teacher and the other
may work in a school. The court maintained her prior ruling, noting that the
prosecutor need not have an “exact formula” but was generally consistent: “he
has shown he has, indeed, excused other jurors who have teaching experience
or work in the school district.”
C. Standard of Review
Section 231.7 specifies standards for our review of the trial court’s
decision. We review the trial court’s denial of an objection under this statute
de novo and factual findings for substantial evidence. (§ 231.7, subd. (j).)
However, the statute further instructs us to consider only the reasons
actually given by the party exercising the peremptory challenge and to avoid
imputing findings on the trial court not expressly stated on the record. (Id. at
subd. (f).) Error by the trial court in denying an objection under this section
is deemed prejudicial and requires reversal. (Id. at subd. (j).)
D. Analysis under Section 231.7
1. Presumptive Invalidity
The People do not dispute the trial court’s finding that one reason the
prosecutor gave for exercising the peremptory challenge, Juror Number 8’s
belief that there is racial bias in law enforcement, was presumptively invalid.
The question becomes whether the court erred by finding the People
overcame the presumption of invalidity. We conclude the court did not err by
9
finding that there was clear and convincing evidence to show that an
objectively reasonable person would view the prosecutor’s presumptively
invalid reason to be related to the juror’s ability to be fair and impartial,
rather than to her membership in a cognizable group.
As required by section 231.7, subdivision (j), we consider only the
reason given by the People, that Juror Number 8 believed there is racial bias
in application of the law, and his argument that this reason “bear[s] on that
juror’s ability to be fair and impartial in the case.” We likewise limit our
review to the trial court findings, including that the prosecutor had overcome
the presumption of invalidity by clear and convincing evidence. The statute
does not limit our ability to consider undisputed facts in the record that are
relevant to the prosecutor’s reason or the court’s finding during our de novo
review.
One such undisputed fact in the record is Juror Number 8’s repeated
acknowledgement that she would have difficulty setting aside her bias
against law enforcement officers to fairly consider their testimony, despite
her initial statements she could be fair. When further questioned by the
prosecutor, Juror Number 8 stated that, because of her views on law
enforcement and race, she would have a difficult time fairly evaluating the
testimony of law enforcement witnesses and might have an “implicit bias”
against the officers without realizing. Even if she sought to be fair, she
stated her bias might be “always in the back of my mind as much as I try to
set it aside.” An objectively reasonable person would view the prosecutor’s
challenge of Juror Number 8 due to her feelings on law enforcement as
10
related to her ability to be fair based on her repeated acknowledgement that
she would have difficulty setting aside her bias and being fair. 3
Additionally, the prosecutor also sought to excuse Juror Number 4, a
white woman who had expressed similar feelings to Juror Number 8 and
similarly could not confirm these feelings would not influence her decision.
The prosecutor explained the similarities on the record: “So during my voir
dire I did address, I believe, specifically Juror Number 4, who was excused for
cause. During that questioning I did make reference and speak as well to
Juror Number 8, due to the fact they shared many of the same sentiments
regarding the criminal justice system, regarding law enforcement officers.”
The prosecutor’s excusing Juror Number 4 for cause, and comparison of her
views to Juror Number 8’s, further supports the objectively reasonable
conclusion that the prosecutor’s reference to this reason was related to Juror
Number 8’s ability to be fair, not to her cognizable group membership.
Because the prosecution overcame the presumption of invalidity as to
its first stated reason, we consider this reason as a valid reason, among the
other stated reasons, in the section 231.7, subdivision (d)(1) totality of the
circumstances analysis.
3 Although having views that impair a prospective juror’s ability to be
fair is typically related to a challenge for cause (see People v. Rhoades (2019)
8 Cal.5th 393, 435 (Rhoades)), by its terms, section 231.7, subdivision (e),
renders the ability to be fair and impartial relevant to the exercise of a
peremptory challenge for a presumptively invalid reason. The party seeking
to exercise a peremptory challenge can overcome the presumptive invalidity
of a reason only by establishing that the reason “bear[s] on” the individual’s
“ability to be fair and impartial in the case.” (§ 231.7, subd. (e).) Further, our
Supreme Court also recognized that a basis for cause can be the same as a
basis for a peremptory challenge. (See Rhoades, at p. 435.)
11
2. Totality of the Circumstances
On appeal, Jimenez argues the prosecutor violated section 231.7 based
on the following factors: (1) his and Juror Number 8’s membership in the
same cognizable group (§ 231.7, subd. (d)(3)(A)(i)); (2) the prosecutor’s failure
to question Juror Number 8 regarding any effects of her employment with a
school district (id. at subd. (d)(3)(C)(i) & (ii)); (3) the questions the prosecutor
asked Juror Number 8 were different from other jurors outside the cognizable
group (id. at subd. (d)(3)(C)(iii)); (4) the belief that racial minorities receive
different treatment under the law “might be disproportionately associated
with a” cognizable group (id. at subd. (d)(3)(E)); and (5) the prosecutor’s
explanation that educators are more likely to be given second chances is
“unsupported by the record” (id. at subd. (d)(3)(F)). We do not find these
arguments persuasive.
Although Juror Number 8 appeared to belong to the same cognizable
group as Jimenez, at least one of the People’s witnesses was also a member of
that group, a factor under section 231.7, subdivision (d)(3)(A)(iii). Together,
these factors are neutral.
While the prosecutor failed to question Juror Number 8 regarding any
effect of her employment as a school secretary on her ability to participate as
a juror, he likewise did not question the three other jurors regarding their
employment by a school district prior to exercising peremptory challenges of
them. At least one of them was not a member of Juror Number 8’s cognizable
group. Similarly, while there is no data on the record to support the
prosecutor’s belief that the educators are more likely to provide second
chances, there is evidence in the record that the prosecutor applied this belief
on a race neutral basis as to the main panel of jurors. Thus, this subsection
does not weigh in favor of the conclusion that an objectively reasonable
12
person would view Juror Number 8’s cognizable group as a factor in the use
of the peremptory challenge.
As previously discussed, the prosecutor did question Juror Number 8
regarding her ability to be fair based on her belief that law enforcement has a
racial bias. These questions were similar to those he asked of Juror Number
4, who did not appear to be a member of a cognizable group but expressed
similar views to Juror Number 8. Thus, this factor weighs against finding a
violation of section 231.7.
It is true that Juror Number 8’s belief that race affects how the law
applies “might be disproportionately associated with” a cognizable group.
(§ 231.7, subd. (d)(3)(E)). However, the Legislature placed this reason into
the category of presumptively invalid reasons because it was
disproportionately associated with protected groups. (See Legis. Counsel’s
Dig., Assem. Bill No. 3070 (2019–2020 Reg. Sess.), Summary Dig. p. 2.) And
we have already determined that, in this case, there was clear and convincing
evidence that this reason bore on Juror Number 8’s ability to be fair and
impartial. We need not consider this reason again here; as determined by the
court, the prosecution’s other two reasons do not implicate this factor, and
Jimenez does not argue otherwise.
We agree with Jimenez that the record does not support one of the
prosecutor’s reason for challenging Juror Number 8, i.e. she lacked prior jury
service. Unlike as to prospective jurors employed by school districts, the
prosecutor did not exercise peremptory challenges on multiple other jurors
who merely lacked jury service. The only non-school district employee the
prosecutor challenged had prior jury service.
Even disregarding the “lack of jury service” reason, in the totality of the
circumstances, we conclude that there is not a substantial likelihood that an
13
objectively reasonable person would view cognizable group membership as a
factor in the prosecutor’s peremptory challenge of Juror Number 8. Rather,
an objectively reasonable person would determine that the prosecutor
exercised the challenge because of Juror Number 8’s inability to be fair based
on her view of law enforcement racial bias and her employment by a school
district. He consistently sought to excuse or challenge prospective jurors who
expressed a potential inability to be fair. And, in addition to Juror Number 8,
the prosecutor used peremptory challenges on three prospective jurors who
worked for school districts, including at least one non-cognizable group
member and one secretary. Finally, the prosecutor did not seek to remove all
Latino prospective jurors.
The court did not err by concluding the prosecutor did not violate
section 231.7 in exercising a peremptory challenge of Juror Number 8.
E. Batson/Wheeler Analysis (Constitutional Challenges)
Jimenez additionally argues that the People’s peremptory challenge of
Juror Number 8 violated his rights under the United States and California
Constitutions. Although Jimenez did not raise the issue of constitutional
violations in the trial court, “[a] motion brought under [section 231.7] shall
also be deemed a sufficient presentation of claims asserting the
14
discriminatory exclusion of jurors in violation of the United States and
California Constitutions.” (§ 231.7, subd. (d)(1).) 4
Claims of unconstitutional challenges of prospective jurors are
governed by a framework established by Batson v. Kentucky (1986) 476 U.S.
79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). “Review of
a trial court’s denial of a Batson/Wheeler motion is deferential, examining
only whether substantial evidence supports its conclusions. [Citation.] ‘We
review a trial court’s determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges “ ‘with great restraint.’ ”
[Citation.] We presume that a prosecutor uses peremptory challenges in a
constitutional manner and 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.]’ ” (People v. Lenix (2008) 44 Cal.4th 602,
613–614.)
Under Batson/Wheeler jurisprudence, “ ‘[t]here ‘is a rebuttable
presumption that a peremptory challenge is being exercised properly, and the
4 Our colleagues in the Sixth District determined that the failure of a
section 231.7 claim necessarily dooms a constitutional claim: “Because
section 231.7 provides broader protection than that afforded under
Batson/Wheeler [citation], Ortiz’s failure to demonstrate error under section
231.7 necessarily leads us to conclude that there was no violation of his
constitutional rights when the prosecutor exercised a peremptory challenge
against S.H.” (Ortiz, supra, 96 Cal.App.5th at p. 808.) We decline to express
an opinion regarding whether in every case, a determination of
unconstitutional use of a peremptory challenge is precluded by a
determination that no section 231.7 violation exists. Instead, we limit our
holding to the conclusion that in this case, Jimenez has not established an
unconstitutional peremptory challenge under Batson/Wheeler.
15
burden is on the opposing party to demonstrate impermissible
discrimination.’ ” (People v. Armstrong (2019) 6 Cal.5th 735, 766
(Armstrong).)
Under a three-step process, a defendant must first “ ‘make out a prima
facie case “by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” ’ ” (Armstrong, supra, 6 Cal.5th at
p. 766.) In this step, the party opposing the peremptory challenge must
provide “ ‘ “evidence sufficient to permit the trial judge to draw an inference
that discrimination has occurred.” ’ ” (People v. Gutierrez (2017) 2 Cal.5th
1150, 1158 (Gutierrez).)
Because Jimenez relies on his section 231.7 claim to preserve his
constitutional peremptory challenge claim, the court did not address whether
Jimenez established a prima facie case of discrimination under
Batson/Wheeler. On appeal, Jimenez merely argues, “[a]ppellant established
a prima facie case with the prosecutor’s use of a peremptory challenge to
remove Juror Number Eight who was Hispanic.” The mere fact that Juror
Number 8 was Hispanic is insufficient to establish a prima facie case of
intentional discrimination, and Jimenez fails to point to any other evidence.
(People v. Christopher (1991) 1 Cal.App.4th 666, 672.) Further, from our
conclusion in the preceding section (that under the totality of the
circumstances, there was not a substantial likelihood that an objectively
reasonable person would view race as a factor in the prosecutor’s peremptory
challenge of Juror Number 8), it necessarily follows that the evidence was
insufficient to permit the trial judge to draw an inference that discrimination
has occurred. Therefore, Jimenez has failed to establish a prima facie case of
impermissible discrimination.
16
But even if Jimenez had been able to establish the prima facie case, he
cannot meet the remaining requirements under Batson/Wheeler. Under the
second step, “once the defendant has made out a prima facie case, the ‘burden
shifts to the State to explain adequately the racial exclusion’ by offering
permissible race-neutral justifications for the strikes.” (Armstrong, 6 Cal.5th
at p. 766.) The race neutral explanation involves “ ‘a “clear and reasonably
specific” explanation of his “legitimate reasons” for exercising the
challenges,’ ” which exists “ ‘ “[u]nless a discriminatory intent is inherent in
the prosecutor’s explanation.” ’ ” (Gutierrez, supra, 2 Cal.5th at p. 1158.)
Here, the prosecutor specified legitimate reasons that did not have
inherent discriminatory intent. “Courts have recognized the race neutrality”
of occupation-based challenges, including of teachers, under Batson/Wheeler.
(See People v. Landry (1996) 49 Cal.App.4th 785, 790.) A prospective juror’s
expression of doubts as to whether he or she can be fair can be a race neutral
reason. (See People v. DeHoyos (2013) 57 Cal.4th 79, 112.) “A prospective
juror of any ethnicity might equally share” general concerns about racial bias
in law enforcement such as “the overincarceration of African-Americans in
general.” (Armstrong, supra, 6 Cal.5th at p. 784.) Indeed, this case
exemplifies that possibility, with Juror Number 4, who was white, and Juror
Number 8, who was Latina, sharing similar feelings. “In exercising
peremptory challenges, advocates may excuse jurors who have such concerns,
so long as their reasoning does not rest on impermissible group bias.” (Ibid.)
“Third, ‘[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful
racial discrimination.’ ” [Citations.] The defendant’s ultimate burden is to
demonstrate that ‘it was more likely than not that the challenge was
improperly motivated.” ’ ” (Armstrong, supra, 6 Cal.5th at p. 766.) The court
17
determines whether there was purposeful discrimination based on “the
subjective genuineness of the reason” in consideration of the credibility of the
challenging party. (Gutierrez, supra, 2 Cal.5th at pp. 1158–1159.)
The record demonstrates that the court engaged in a sincere and
reasoned effort to evaluate the reasons for the challenge through its thorough
section 231.7 discussion. The court believed the prosecutor was credible and
his reasons were subjectively genuine, noting that the prosecutor had
“sufficiently shown that the reasons for dismissing this juror are his practice
that he does not prefer jurors that don’t have prior jury service and work in a
system that is prone to second chances, being somewhat forgiving.” The
judge understood that “he balances all of these things.” She found by clear
and convincing evidence that the prosecutor was not engaged in group bias,
stating “the ethnicity and race of Juror Number 8 was not the reason that he
is asking to have [her] excused.” Substantial evidence supports the court’s
position. The prosecutor repeatedly challenged school district employees
regardless of race, and multiple Latinos remained on the jury. (See People v.
Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 763 [A “ ‘ “prosecutor’s
acceptance of a jury panel including multiple African-American prospective
jurors, ‘while not conclusive, was “an indication of the prosecutor’s good faith
in exercising his peremptories . . . .’ ” ’ ”].) The prosecutor had also excused
Juror Number 4, who was not a member of a cognizable racial or ethnic
group, due to her beliefs similar to those of Juror Number 8.
We thus conclude Jimenez did not demonstrate the prosecutor engaged
in unconstitutional purposeful discrimination by exercising a peremptory
challenge of Juror Number 8.
18
III. SUFFICIENCY OF THE EVIDENCE
As noted above, on appeal, Jimenez contends that the evidence was
insufficient to support his conviction for leaving the scene of an accident (“hit
and run”) in violation of Vehicle Code section 20002, subdivision (a).
A. Evidence at Trial
On December 15, 2020, National City Police Officer Ryan Mariota was
driving a marked patrol vehicle with his partner, Officer Robert Rude
(together, the Officers), in the passenger seat. The patrol vehicle was a black
and white Ford Explorer with National City Police decals on both the driver
and passenger sides, with overhead red and blue lights. As the Officers were
driving, a gray Toyota Corolla ignored a traffic sign and cut in front of their
patrol vehicle, nearly causing a collision. The Officers activated the patrol
vehicle’s lights and siren while pursuing the Corolla, which accelerated
rather than pulling over to the right side of the road. The Officers pursued
the vehicle for approximately 1.3 miles after they activated their siren.
At some time during the pursuit, Officer Rude saw Jimenez driving the
Corolla. Officer Mariota also recognized Jimenez as the driver of the vehicle.
During the pursuit, Jimenez committed multiple traffic violations. As
the Officers pursued him, Jimenez drove at speeds varying between
approximately 60 miles per hour and 100 miles per hour on a street with a 35
miles per hour speed limit, drove through multiple red lights without
stopping, and drove on the wrong side of the road, coming close to other
vehicles on the road. Eventually, the Corolla came to a stop when it drove
onto the sidewalk and collided with a short cinder block wall, causing a large
cloud of smoke and debris. The Officers parked their vehicle.
Officer Michael Acevedo, a patrol officer, responded to a radio request
at the crashed vehicle’s location. When he arrived, he saw the Corolla on the
19
sidewalk, crashed into the wall. At the time, no other police officers were
present. He saw that the driver’s seat of the vehicle was empty, and the
passenger seat was occupied by an individual other than Jimenez. Officer
Acevedo also noticed that there was a property management sign on the
property containing the wall into which the vehicle crashed. Officer Mariota
was present at the hospital with Jimenez at some point after the collision.
B. Standard of Review
“ ‘When reviewing a challenge to the sufficiency of the evidence, we ask
“ ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ ” [Citation.] Because the sufficiency
of the evidence is ultimately a legal question, we must examine the record
independently for “ ‘substantial evidence—that is, evidence which is
reasonable, credible, and of solid value’ ” that would support a finding beyond
a reasonable doubt.’ [Citation] In doing so, we ‘view the evidence in the light
most favorable to the jury verdict and presume the existence of every fact
that the jury could reasonably have deduced from that evidence.’ [Citation.]”
(People v. Navarro (2021) 12 Cal.5th 285, 302.) “In cases in which the People
rely primarily on circumstantial evidence, the standard of review is the
same.” (People v. Thomas (1992) 2 Cal.4th 489, 514.) “ ‘We must also “accept
logical inferences that the jury might have drawn from the circumstantial
evidence.” ’ ” (People v. Navarro, at p. 302.)
C. Analysis
To establish a violation of Vehicle Code section 20002, subdivision (a),
the People must prove that a defendant driver: “ ‘(1) knew he or she was
involved in an accident; (2) knew damage [to any property] resulted from the
accident; and (3) knowingly and willfully left the scene of the accident
20
(4) without giving the required information . . . .’ ” (Dimacali, supra, 32
Cal.App.5th at p. 829.) The driver must immediately either give the required
information to the owner or person in charge of the property or leave a
written notice in a conspicuous place on the damaged property and notify the
police department. (Veh. Code, § 20002, subd. (a)(1)–(2).)
In this case, Officers Rude and Mariota testified Jimenez drove his
vehicle onto the sidewalk and into a wall while attempting to evade the
officers. This evidence gives rise to the reasonable inference that Jimenez
knew he was involved in an accident. Officer Acevedo testified that the
driver’s seat was empty upon his arrival on the scene. This evidence supports
a finding that Jimenez had left the scene. However, there was no evidence at
trial as to how long after the accident Officer Acevedo arrived; whether
Jimenez had departed the scene knowingly and willfully; or whether Jimenez
had provided the information to the wall owner and police as required by
Vehicle Code section 20002, subdivision (a)(1)–(2). Given the complete lack of
evidence on the issue, it would not have been possible for the jury to come to
any reasonable inferences from the evidence. A rational trier of fact could not
have found the essential elements of the crime beyond a reasonable doubt,
and therefore we conclude that there was insufficient evidence to convict
Jimenez of a violation of Vehicle Code section 20002, subdivision (a).
21
DISPOSITION
We reverse the judgment as to count 2, and we remand to the trial
court with directions to vacate the conviction on that count and to prepare an
amended abstract of judgment. We affirm the judgment in all other respects.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
DO, J.
22
Filed 2/2/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081267
Plaintiff and Respondent,
(Super. Ct. No. SCS319685)
v.
ORDER CERTIFYING
ESTEBAN JIMENEZ, OPINION FOR PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in this case filed January 3, 2024 was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports"
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
DATO, Acting P. J.
Copies to: All parties