People v. Leiva CA5 ( 2024 )

Filed 10/29/24 P. v. Leiva CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084427
Plaintiff and Respondent,
(Super. Ct. No. BF187979A)
v.
ANDRE LEIVA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi
Choi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted Andre Leiva (appellant) of two counts of being a felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1)),1 unlawful possession of
ammunition (§ 30305, subd. (a)(1)), and misdemeanor resisting a peace officer (§ 148,
subd. (a)(1)). The jury also found true allegations that appellant was armed with a deadly
weapon for purposes of the “Three Strikes” law (§§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii)), and the trial court found appellant had two prior strike convictions.
(§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) The court sentenced appellant to 25 years to
life in state prison.
On appeal, appellant contends the trial court erred in denying his motion to
suppress evidence pursuant to section 1538.5, alleging the People failed to establish the
traffic stop that led to his arrest was supported by reasonable cause. He also claims the
trial court’s excusal of an African-American prospective juror for cause was motivated by
racial bias, in violation of his state and federal constitutional rights to a fair and
representative jury, Code of Civil Procedure section 231.7, and the California Racial
Justice Act of 2020 (CRJA). Finding no error, we affirm.
BACKGROUND
The evidence produced at trial is not relevant to the issues raised on appeal, so we
only summarize it briefly. In short, officers conducted a traffic stop on a car driven by
appellant. A female passenger was sitting in the front passenger’s seat. During a search
of the car, officers located a backpack on the front passenger’s side floorboard. Inside the
backpack, officers found two loaded handguns, 6.8 grams of methamphetamine, four
grams of cocaine, appellant’s identification card, and prescription medication in
appellant’s name. When an officer told appellant to place his hands behind his back, he
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
rushed toward the officer, ripped off his radio, and fled on foot. Another officer chased
after appellant and was able to place him in handcuffs.
The Kern County District Attorney’s Office filed an information charging
appellant with two counts of possession of a controlled substance while armed with a
firearm (Health & Saf. Code, § 11370.1, subd. (a); counts 1 and 2), two counts of
carrying a loaded and unregistered firearm in a vehicle (§ 25850, subd. (c)(6); counts 3
and 4), two counts of carrying a concealed firearm in a vehicle with a prior felony
conviction (§ 25400, subds. (a)(1), (c)(1); counts 5 and 6), two counts of being a felon in
possession of a firearm (§ 29800, subd. (a)(1); counts 7 and 8), unlawful possession of
ammunition (§ 30305, subd. (a)(1); count 9), and misdemeanor resisting a peace officer
(§ 148, subd. (a)(1); count 10). As to counts 1-9, the People alleged appellant was armed
with a deadly weapon during the commission of the offense within the meaning of
sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii).2 The
People also alleged appellant had two prior strike convictions. (§§ 667, subd. (d)(1),
1170.12, subd. (b)(1).)
After the close of evidence, the trial court granted the People’s motion to dismiss
counts 3 and 4 in the furtherance of justice pursuant to section 1385, subdivision (a).
The jury found appellant guilty on counts 7-10 and found the armed with a deadly
weapon allegation true as to counts 7-9. However, the jury was unable to reach a verdict
on counts 1, 2, 5, and 6, and the trial court declared a mistrial as to those counts.3 In a
2 Pursuant to these provisions, a defendant with two or more prior strike convictions
whose current offense is not a serious or violent felony must still be sentenced as a third
strike offender if “[d]uring the commission of the current offense, the defendant … was
armed with a firearm or deadly weapon.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii); see People v. Johnson (2015) 61 Cal.4th 674, 681–682.)
3 The trial court subsequently granted the People’s motion to dismiss counts 1, 2, 5,
and 6, pursuant to section 1385, subdivision (a).
3.
bifurcated proceeding, the trial court found true the allegation appellant had two prior
strike convictions.
The trial court sentenced appellant to indeterminate terms of 25 years to life on
counts 7, 8, and 9, in accordance with the Three Strikes law. The court ordered the
sentence on count 8 to run concurrently to count 7 and stayed the sentence on count 9
pursuant to section 654, subdivision (a). As to count 10, the court imposed a determinate
sentence of one year to run concurrently with count 8.
DISCUSSION
I. The Trial Court Did Not Err in Denying Appellant’s Motion to Suppress
Evidence Because the Traffic Stop was Supported by Reasonable Cause.
Appellant contends the trial court should have granted his section 1538.5 motion
to suppress evidence, arguing law enforcement lacked reasonable cause to conduct an
enforcement stop on his vehicle. We conclude the traffic stop was reasonable under the
Fourth Amendment based on an officer’s testimony that he observed appellant speeding.
A. Background.
Prior to trial, appellant filed a motion to suppress evidence pursuant to section
1538.5. Before the motion hearing began, appellant clarified he was only challenging the
basis for the traffic stop, and not the ensuing search of his vehicle. The parties also
stipulated there was no warrant for the traffic stop.
An officer testified that on August 5, 2021, around 7:15 p.m., he was on patrol in
Bakersfield conducting “gang suppression.” At this time, it was still light out. As the
officer was driving eastbound, he observed a vehicle one to two blocks ahead of him
driving northbound. The vehicle’s front driver’s side window was darkly tinted, and the
officer could not see who was driving the vehicle or how many occupants were inside.
The officer pursued the vehicle and located it on a different street a couple of
blocks away. At this point, the vehicle was driving at a high rate of speed. The vehicle
was in a residential area, which is controlled by a 25-mile-per-hour speed limit, and the
4.
officer estimated the vehicle was travelling more than 45 miles per hour. Based on this
observation, the officer concluded the vehicle was speeding. The officer also opined that
the vehicle’s driving pattern suggested the driver was attempting to avoid contact with
police.
The officer drove behind the vehicle and activated his overhead lights, and the
vehicle pulled into a parking lot and parked. Appellant was the driver of the vehicle.
The officer testified the enforcement stop was based on appellant’s manner of
driving and illegally tinted windows. He explained he has received training in the
difference between legal and illegal window tint and has stopped numerous vehicles for
this violation. He testified that the tint on appellant’s vehicle “was clearly obstructing
[his] view into the vehicle which would have obstructed the driver’s view as well.”
Based on the officer’s training and experience, he concluded the window tint was a
violation of the Vehicle Code. (See Veh. Code, § 26708, subd. (a).)
At the conclusion of the hearing, the trial court found the officer observed
appellant driving “way above” the 25-mile-per-hour speed limit. The court also rejected
defense counsel’s argument that the officer’s testimony was insufficient to justify the
traffic stop, reasoning that “if you can’t see in, that’s the objective of that Vehicle Code
[section].” However, the court ultimately denied the motion based on appellant’s
speeding, stating, “As to the evidence heard on the speeding issue, enough cause to pull
[appellant] over so the motion would be denied at this time.”
B. Standard of review.
“A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the
vehicle and therefore must be conducted in accordance with the Fourth Amendment.”
(Heien v. North Carolina (2014) 574 U.S. 54, 60.) “[T]o justify this type of seizure,
officers need only ‘reasonable suspicion’—that is, ‘a particularized and objective basis
for suspecting the particular person stopped’ of breaking the law.” (Ibid.) In other words,
5.
“a lawful traffic stop occurs when the facts and circumstances known to the police officer
support at least a reasonable suspicion that the driver has violated the Vehicle Code or
another law.” (People v. Nice (2016) 247 Cal.App.4th 928, 937–938.)
At a motion to suppress evidence pursuant to section 1538.5, the People bear the
burden of showing by a preponderance of the evidence that a warrantless search or
seizure was reasonable under the Fourth Amendment. (People v. James (1977) 19 Cal.3d
99, 106, fn. 4; People v. Williams (1988) 45 Cal.3d 1268, 1300, abrogated on another
ground by People v. Diaz (2015) 60 Cal.4th 1176, 1190.) “ ‘The standard of appellate
review of a trial court’s ruling on a motion to suppress is well established. We defer to
the trial court’s factual findings, express or implied, where supported by substantial
evidence.’ ” (People v. Redd (2010) 48 Cal.4th 691, 719.) “[W]e must accept the trial
court’s resolution of disputed facts and inferences, its evaluations of credibility, and the
version of events most favorable to the People, to the extent the record supports them.”
(People v. Zamudio (2008) 43 Cal.4th 327, 342.) “ ‘In determining whether, on the facts
so found, the search or seizure was reasonable under the Fourth Amendment, we exercise
our independent judgment.’ ” (People v. Redd, supra, 48 Cal.4th at p. 719.)
C. The officer had reasonable cause to stop appellant for speeding.
The officer testified he observed appellant driving over 45 miles per hour in a
residential area, which is subject to a 25-mile-per-hour speed limit. (See Veh. Code,
§ 22352, subd. (b)(1).) This constituted either a violation of Vehicle Code section 22350
(basic speed law) or Vehicle Code section 22351, subdivision (b) (driving in excess of
speed limit). “[I]t is beyond contravention that excessive speed, whether detected
through mechanical device or observation, provides probable cause for a stop.” (People
v. Sullivan (1991) 234 Cal.App.3d 56, 65.) The trial court was justified in denying the
motion to suppress on this basis.
6.
Appellant argues the officer’s testimony that appellant was speeding was not
credible. He bases this claim on the officer’s police report, which purportedly states the
traffic stop was for illegal window tint and does not mention that appellant was speeding.
Appellant also relies on body camera recordings that show officers tell appellant and his
passenger the traffic stop was for illegal window tint. In addition, appellant notes the
officer who conducted the stop was assigned to gang suppression, not traffic
enforcement, and that no citation was issued for a violation of the Vehicle Code.
According to appellant, this suggests the traffic stop was pretextual, and the officer
fabricated his testimony that appellant was speeding.
The officer’s police report and the body camera footage were not admitted into
evidence at the suppression hearing, and the officer was not questioned about the contents
of either. It is well settled that our review “is limited to the evidence before the court
when it heard the motion.” (People v. Hartsch (2010) 49 Cal.4th 472, 491; accord,
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 366; People v. Garry (2007)
156 Cal.App.4th 1100, 1105, fn. 2.) It would be improper for this court to consider such
evidence in reviewing the trial court’s denial of the suppression motion.
Appellant concedes the officer’s police report is not in the record on appeal but
argues it should be considered because it was described by both counsel. He notes the
People’s written opposition to appellant’s suppression motion did not mention speeding
and only stated that the traffic stop was based on illegally tinted windows. Additionally,
after the close of evidence at the suppression hearing, defense counsel argued the police
report did not mention appellant was speeding or attempting to evade law enforcement.
Defense counsel also stated the prosecutor disclosed that the officer informed him the
morning of the hearing that he observed appellant speeding before the stop. Later, during
motions in limine, the trial court (a different judge than the judge who ruled on the
suppression motion) asked the prosecutor to describe the basis for the traffic stop. The
7.
prosecutor responded, “I believe it was window tint.” Defense counsel added that the
officer testified appellant was speeding but did not mention speeding in his police report.
“It is axiomatic that the unsworn statements of counsel are not evidence.” (In re
Zeth S. (2003) 31 Cal.4th 396, 413–414, fn. 11; accord, People v. Kiney (2007) 151
Cal.App.4th 807, 814–815.) For this reason, the statements of counsel describing the
contents of the officer’s police report are not evidence. On appeal, our role is to review
the trial court’s ruling that the traffic stop was reasonable under the Fourth Amendment
by a preponderance of the evidence. It would be improper for this court to consider
matters not in evidence in making this determination.4
Appellant also argues he should not be precluded from relying on the body camera
footage because defense counsel had no reason to believe it would be relevant at the
suppression hearing. Appellant provides no legal basis for this purported exception.
Regardless, appellant’s argument strains credulity. The body camera footage captures
appellant’s interaction with law enforcement immediately after the traffic stop, and
depicts appellant’s vehicle, including its windows. And even assuming defense counsel
was unprepared to present the body camera footage in court, defense counsel could have
requested a brief continuance, or could have cross-examined the officer about the
contents of the body camera footage.
We also reject appellant’s argument that the officer’s decision not to cite appellant
for a violation of the Vehicle Code suggests the stop was not based on such a violation.
“A traffic stop is lawful at its inception if it is based on a reasonable suspicion that any
traffic violation has occurred, even if it is ultimately determined that no violation did
4 Although the contents of the police report were not in evidence, the record shows
defense counsel told the trial court about the report during argument on the suppression
motion, before the court issued its ruling. Despite defense counsel’s representations, the
court impliedly found credible the officer’s testimony that appellant was speeding, and it
denied the motion on this basis. This suggests that even if the police report had been
admitted into evidence, it would not have impacted the court’s ruling.
8.
occur.” (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510.)
Whether an officer ultimately does or does not issue a citation “is irrelevant for purposes
of determining whether or not [the officer] had reasonable suspicion.” (Ibid.) Here,
moreover, after effectuating the traffic stop, officers discovered appellant was illegally in
possession of multiple loaded firearms inside of his vehicle. It would be unreasonable to
require officers to issue a Vehicle Code citation to justify any traffic stop, particularly
where the stop reveals the driver of the vehicle had committed much more serious
offenses.
As we explained above, in reviewing the denial of a motion to suppress, we defer
to the trial court’s express and implied factual findings and determinations of credibility
if supported by substantial evidence. The trial court’s denial of the motion based on the
officer’s testimony appellant was speeding was an implied finding that the officer’s
testimony was credible. Based on the evidence before the court at the time it issued its
ruling, we find no basis to disturb that credibility finding. The officer’s undisputed
testimony established he observed appellant driving over 45 miles per hour in a
residential district in violation of the Vehicle Code. Therefore, the trial court did not err
in finding the traffic stop was reasonable under the Fourth Amendment.
Because we conclude the trial court’s ruling was proper based on its finding the
officer had reasonable cause to believe appellant was speeding, we need not determine
whether the officer’s testimony appellant had illegally tinted windows would also have
justified the traffic stop.5
5 After the trial court denied the suppression motion, the People dismissed the
information and refiled the charges against appellant under a different superior court case
number. Respondent argues appellant failed to preserve his appellate challenge to the
denial of the suppression motion because he did not renew the motion after the case was
refiled. Because we conclude the trial court did not err in denying the motion, we need
not address this claim.
9.
II. The Record Does Not Support Appellant’s Claim That the Trial Court’s
Excusal of an African-American Prospective Juror for Cause was Motivated
By Explicit or Implicit Racial Bias.
Appellant is African-American. During jury selection, the People challenged Juror
No. 1,6 who is also African-American, for cause, alleging her answers during voir dire
demonstrated actual bias. The trial court granted the motion over appellant’s objection.
Appellant contends that the trial court’s excusal of Juror No. 1 was based on explicit or
implicit racial bias, and therefore violated his constitutional right to a fair and
representative jury. He also argues the excusal violated Code of Civil Procedure section
231.7, and the CRJA. We reject these claims because the record does not show the trial
court’s excusal of Juror No. 1 was racially motivated.
A. Background.
1. Voir Dire—Juror No. 1.
In her written juror questionnaire, in response to a question about her overall view
of the criminal justice system, Juror No. 1 marked, “Somewhat Negative.” Below, she
wrote: “Persons of color fill the jails!” She noted she had a bad experience with law
enforcement where the police entered a yard and ordered her and her friends to lie on the
ground. She also wrote that she previously served as a juror on a criminal trial, and
described the experience as “negative,” stating she “[d]idn’t like [that] someone’s future
was in my hands.”
During jury selection, the trial court questioned certain prospective jurors
individually based on their responses to the juror questionnaire. When the court
questioned Juror No. 1, the following exchange occurred:
“THE COURT: [Juror No. 1], you’ve indicated that you have a somewhat
negative overall opinion of the criminal justice system and then you put in
6 For purposes of anonymity, we identify the prospective jurors referenced in this
opinion as “Juror No. 1” and “Juror No. 2.”
10.
there that the, quote, “persons of color fill the jails!” end quote. Can you
elaborate a little bit about what your feelings are on that topic?
“[JUROR No. 1]: Well, I feel that most individuals of color get poor
counsel, therefore, they’re bound to go to jail.
“THE COURT: We are currently in trial right now in a criminal case and
I’ll introduce the parties more formally later on. For now I’ll tell you we
have a prosecution and defense. There are several allegations here, felony
allegations. The most [serious] of the allegations involve a count or two
counts actually that the defendant illegally possessed a firearm. So he was
a convicted felon who was not supposed to possess firearms but the
allegation is that he was found in possession of that. The other allegations
are two counts that the defendant illegally possessed narcotics, illegal
drugs. And the record will reflect that the defendant in the case is African
American. He is a person of color as you mentioned. Do you think your
feelings on the criminal justice system as a whole and on the particular
topic about how persons of color may be mistreated in the system—
“[JUROR No. 1]: Oh, yes.
“THE COURT: … I’m not getting into whether or not that opinion is valid
or not. There certainly seems to be a lot of facts for it. The real question is
whether or not your feelings on that topic would interfere with your ability
to be fair and neutral to both sides in this case?
“[JUROR No. 1]: I probably would be more sympathetic.
“THE COURT: As you sit here right now, do you sort of find yourself
favoring one side or the other?
“[JUROR No. 1]: No.
“THE COURT: Even though you haven’t heard any evidence?
“[JUROR No. 1]: No.
“[¶] … [¶]
“THE COURT: Let me switch to a little bit of a different topic. You said
you have served as a juror on one occasion. Is that correct?
“[JUROR No. 1]: Yes.
11.
“THE COURT: And that was a criminal case?
“[JUROR No. 1]: It was. I don’t recall what it was.
“THE COURT: And you put in there that you felt that was a negative
experience?
“[JUROR No. 1]: It was.
“THE COURT: And then you commented that you, quote, ‘didn’t like
someone’s future basically to be in your hands,’ end quote. Is that correct?
“[JUROR No. 1]: Yes.
“THE COURT: Would you be comfortable serving as a juror again given
the fact you had a negative experience?
“[JUROR No. 1]: I don’t like that. I really don’t. Because I don’t know if
I’ve done the right thing.
“THE COURT: Let’s say hypothetically you remain as a juror in this case.
Would you be willing to listen closely to all the evidence?
“[JUROR No. 1]: Yes.
“THE COURT: Would you be willing to listen closely to the law?
“[JUROR No. 1]: Yes.
“THE COURT: Would you be willing to follow the law even if you
disagree with it?
“[JUROR No. 1]: Yes.
“THE COURT: And I’ll get into the standards of proof and the
presumption of innocence, all these types of legal concepts a little bit down
the road. But if you’re to remain as a juror in this case and you did feel that
the prosecutor proved the defendant’s guilt to the legal standard, which
everybody probably knows is beyond a reasonable doubt, and that when
you looked at the facts and the law you were convinced beyond a
reasonable doubt, would you have any reluctance to vote guilty for any
reason at all including the fact that the defendant is a person of color?
“[JUROR No. 1]: No, but I still wouldn’t like it.
12.
“THE COURT: Okay. Yeah, I don’t think anybody feels good about
necessarily events that lead people to come to court but that’s a different
issue. In fact, you’d be specifically instructed to base a decision just on the
facts and the law and not let an over sense of emotion, sympathy, bias,
prejudices, any of that actually is not supposed to come into—
“[JUROR No. 1]: That’s really difficult. It truly is.
“THE COURT: Well you tell me, ma’am. I don’t want to keep asking you
questions. Do you feel that you can be fair and neutral to both sides in this
case or is that going to be too much to ask?
“[JUROR No. 1]: I think it’s too much. I really do.”
The court suggested the parties stipulate to excuse Juror No. 1. The prosecutor
agreed, but defense counsel made a request to examine Juror No. 1, which the court
granted. Defense counsel explained to Juror No. 1 that while she may disagree with
certain laws or believe they are applied in an unfair or discriminatory manner, as a juror
she would have to follow the law regardless of “sympathy or other feelings.” The
following exchange then occurred:
“[DEFENSE COUNSEL]: … Based on that do you think that you could
follow the law as instructed or like [the court] mentioned or is that too
much to ask?
“[JUROR No. 1]: I could but it is once again difficult. Really difficult.
“[DEFENSE COUNSEL:] And I don’t mean to pick on you, ma’am, but
when you say difficulty I just wanted to follow up again. Is it something
that you just don’t think you can do at this time given potentially strong
feelings about, you know, discrimination in the criminal justice system or
not?
“[JUROR No. 1]: Discrimination period not just within the justice system.
“[¶] … [¶]
“[DEFENSE COUNSEL]: And again understanding the allegations in this
case involve an allegation of illegal gun possession and illegal drug
possession and obviously Mr. Leiva is an African American male. I can’t
get too much more into the facts but if hypothetically if you’ve heard all the
13.
evidence in this case and you were convinced that those charges were
proven beyond a reasonable doubt, would you be comfortable voting guilty
or do you think that you couldn’t do that or you would be having sympathy
influence your opinion?
“[JUROR No. 1]: Of course I would have sympathy but I mean the law is
the law too.
“[DEFENSE COUNSEL]: So do you think you can follow the law then or
is it going to be difficult in a case like this?
“[JUROR No. 1]: Once again I can follow but it is difficult. It truly is.”
The prosecutor moved to excuse Juror No. 1 for cause, contending her answers
made clear her beliefs would prevent her from being fair and impartial. Defense counsel
objected, arguing Juror No. 1 stated she believed she could follow the law even though it
would be difficult, and that her beliefs about the justice system do not necessarily warrant
excusal for cause. Defense counsel also stated that recently enacted Code of Civil
Procedure section 231.7 indicates the Legislature supports the view that persons should
not be categorically excluded from juries for expressing negative views of law
enforcement or the criminal justice system.
The trial court overruled the defense objection and excused Juror No. 1 for cause,
stating:
“I think the record is clear. I am going to go ahead and grant the People’s
challenge for cause. And I struggle with this a little bit because I am
sensitive to these types of topics in general and of course with [Code of
Civil Procedure section 231.7] but the reality is I have no problem with
people having an issue with the criminal justice system as a whole and the
idea that there might be some racism even some institutional racism, so
that’s not really the problem. I think like you said, [defense counsel],
statistical percentages and studies, a lot of that shows that those types of
views may arguably have good justifications in some issues, some context.
However, the reason I’m granting the motion though is because—not
because of her views but because she basically said—she did say because
of those views she would have a very difficult time being fair in this case.
I’m not quoting her of course but that was the gist of what I heard. She
would really struggle I think was her answer and she clearly has a great
14.
deal of sympathy for the defendant just by virtue of his skin color. And so
basically if you look at the record all of her answers including her prior
service, she found it to be very negative and did not like the idea of having
that responsibility. I think she indicated it would be extremely difficult for
her to not have those views about the criminal justice system impact her in
this case and she essentially said as much, so for that reason I’m going to
grant the motion.”
2. Voir Dire—Juror No. 2
Later in jury selection, the trial court brought Juror No. 2 into the courtroom for
questioning. Juror No. 2 is Hispanic and Asian. In her questionnaire, she wrote she has a
“Very Negative” overall view of the criminal justice system, explaining that her nephew
was shot and killed a few years ago and his killer was found not guilty. She also stated
her prior jury experience was negative because the “jurors were harassed by family
members of defendant.”
During questioning, the trial court asked Juror No. 2 if her nephew’s case might
interfere with her ability to be fair and impartial, and Juror No. 2 answered, “Honestly I
don’t know.” However, in response to follow-up questions by the court, Juror No. 2
affirmed that she could base her decision as a juror on the facts and law presented, keep
her nephew’s case separate and not let it impact her decision, and be fair and impartial to
both sides. Juror No. 2 also stated she is “totally against drugs” because her husband was
an addict, but believed she could follow the law and give appellant “a fair trial.” With
respect to her prior jury experience, Juror No. 2 stated it would “concern” her, but she
believed she could put that experience aside and decide the case on the evidence.
Later, defense counsel asked Juror No 2 if she thought she would be better suited
to serve as a juror on a different type of case that does not involve allegations of firearm
possession and drug possession. Juror No. 2 replied, “Yes.”
Defense counsel challenged Juror No. 2 for cause, noting that she became
emotional while talking about her nephew and took long pauses answering questions.
The prosecutor responded that Juror No. 2 did not say anything that should give the court
15.
doubt that she could be fair and impartial, and while she was emotional about her
nephew, the instant case does not involve allegations of violence.
The trial court denied appellant’s challenge for cause to Juror No. 2, stating:
“I certainly understand the reason for the motion, [defense counsel], but I
will deny that along the same lines of what you’ve both just observed.
[Juror No. 2] really never said anything that indicated she couldn’t be
anything other than fair and impartial and neutral to both sides. When it
comes to the question about do you think it would be better to serve on a
different type of case, I think it has some merit but it’s not entirely
persuasive for me. Jurors don’t get to pick what type of case they serve on.
There’s some that may be a little bit better that may be true but it doesn’t
mean that they’re not qualified to sit on this particular case. There’s a
difference there. And although it may be a little bit easier for her or ideal
for her to sit on a different case, again, that doesn’t disqualify her from this
case. It doesn’t make her automatically inappropriate for this case. So
based on her answers I will deny that request.” 7
B. Standard of review.
A prospective juror may be excused for cause on the basis of “[a]ctual bias—the
existence of a state of mind on the part of the juror in reference to the case, or to any of
the parties, which will prevent the juror from acting with entire impartiality, and without
prejudice to the substantial rights of any party.” (Code Civ. Proc., § 225, subd.
(b)(1)(C).) In other words, “a juror may be constitutionally excused for cause if the
juror’s views would ‘ “ ‘ “ ‘ “prevent or substantially impair” ’ the performance of the
juror’s duties as defined by the court’s instructions and the juror’s oath.” ’ ” ’ ” (People v.
Henderson (2022) 78 Cal.App.5th 530, 546 (Henderson).) These duties include the duty
to set aside “bias, sympathy, prejudice, or public opinion” and decide the case based
solely on the evidence and the court’s instructions. (CALCRIM No. 200; see Henderson,
supra, 78 Cal.App.5th at p. 546.)
7 Appellant later exercised a peremptory challenge to excuse Juror No. 2.
16.
“Assessing the qualifications of jurors challenged for cause is a matter falling
within the broad discretion of the trial court.” (People v. Weaver (2001) 26 Cal.4th 876,
910.) “In according deference on appeal to trial court rulings on motions to exclude for
cause, appellate courts recognize that a trial judge who observes and speaks with a
prospective juror and hears that person’s responses (noting, among other things, the
person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable
information that simply does not appear on the record.” (People v. Stewart (2004) 33
Cal.4th 425, 451.) Where “a juror gives conflicting testimony as to her capacity for
impartiality, the determination of the trial court on substantial evidence is binding on the
appellate court.” (People v. Kaurish (1990) 52 Cal.3d 648, 675; accord, People v. Clark
(2011) 52 Cal.4th 856, 895.) We therefore review the excusal of a juror for cause for
abuse of discretion. (People v. Armstrong (2019) 6 Cal.5th 735, 751; accord, People v.
Scott (2015) 61 Cal.4th 363, 378; People v. Jones (2012) 54 Cal.4th 1, 41.) An abuse of
discretion will only be found in limited circumstances, such as where a trial court is
unaware of its discretion, considers impermissible factors in the exercise of that
discretion, or renders a decision “so irrational or arbitrary that no reasonable person could
agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377–378.)
Appellant claims the abuse of discretion standard is inapplicable here because the
excusal of Juror No. 1 implicated his constitutional rights. Appellant does not suggest an
alternative standard of review but asserts that such claims are entitled to “[g]reater
appellate scrutiny.” He relies on cases addressing the related issue of whether the excusal
of prospective jurors based on their views on the death penalty affected the defendant’s
constitutional right to a fair and impartial jury. (See People v. Clark, supra, 52 Cal.4th at
pp. 894–895; People v. Stewart, supra, 33 Cal.4th 425, 445–446.) However, even in this
circumstance, the reviewing court still applies the abuse of discretion standard, according
deference to the trial judge “ ‘who sees and hears the juror’ ” and upholds the trial court’s
ruling if supported by the record. (People v. Souza (2012) 54 Cal.4th 90, 122; accord,
17.
People v. Armstrong, supra, 6 Cal.5th at p. 751; People v. Clark, supra, 52 Cal.4th at
p. 895.)
Appellant appears to conflate the standard of review with the separate question of
whether the error was prejudicial. The authority cited by appellant makes clear that the
erroneous excusal of a single prospective juror that affects a defendant’s right to a fair
and impartial jury necessarily requires reversal. (People v. Clark, supra, 52 Cal.4th at
p. 895; People v. Stewart, supra, 33 Cal.4th at pp. 454–455.) But in determining whether
such error occurred, the trial court’s ruling is entitled to appropriate deference. (People v.
Clark, supra, 52 Cal.4th at p. 895; People v. Stewart, supra, 33 Cal.4th at pp. 450–451.)
We review appellant’s claim that the excusal of Juror No. 1 violated his constitutional
rights under the same standard. (See Henderson, supra, 78 Cal.App.5th at pp. 551–553
[defendant’s claim that the trial court’s for cause excusal unconstitutionally excluded
African-Americans from jury reviewed for abuse of discretion].)
C. The record does not show the trial court excused Juror No. 1 for an
improper reason. No constitutional violation or abuse of discretion
occurred.
Appellant claims the for cause excusal of Juror No. 1 was based on explicit or
implicit racial bias, in violation of his state and federal constitutional rights to a
representative and impartial jury. We are not persuaded. The trial court reasonably
concluded based on Juror No. 1’s answers that she could not be fair and impartial because
of her bias and sympathy in favor of appellant.
“The ‘Constitution forbids striking even a single prospective juror for a
discriminatory purpose.’ ” (Foster v. Chatman (2016) 578 U.S. 488, 499.) Appellant
argues that in excluding Juror No. 1 based on her views on the criminal justice system,
the trial court employed criteria that served to exclude African-Americans from the jury.
According to appellant, this violated his state and federal constitutional rights to an
impartial jury selected from a fair cross-section of the community. (Cal. Const., art. I,
18.
§ 16; U.S. Const., 6th & 14th Amends.) He relies on Henderson, which held that a trial
court may not excuse for cause African-American prospective jurors solely because of
their belief that “the criminal justice system treats African-Americans unfairly.”
(Henderson, supra, 78 Cal.App.5th at p. 538.)
In Henderson, the trial court excused two African-American prospective jurors for
cause. (Henderson, supra, 78 Cal.App.5th at pp. 542–545.) On appeal, the defendant
argued the trial court violated his right to a representative and impartial jury by excusing
those prospective jurors based on their views that the criminal justice system treats
African-Americans too harshly. (Id. at p. 548.) The defendant claimed that many
African-Americans hold this view, and excusing jurors for cause on this basis necessarily
results in the exclusion of the majority of African-American prospective jurors. (Ibid.)
Henderson does not assist appellant. Henderson agreed that “ ‘[s]tanding alone,
the belief that the criminal-justice system is systemically unfair to blacks is not a basis to
disqualify a juror.’ ” (Henderson, supra, 78 Cal.App.5th at p. 549.) However,
Henderson also reasoned that where a trial court finds, on an adequate record, that “a
potential juror who believes that the criminal-justice system is unfair to blacks might
respond to that belief by having difficulty being impartial,” excusal for cause is
appropriate. (Ibid.) Based on its review of the record, Henderson found “that is what
happened here.” (Ibid.) Both excused jurors expressed concerns about the criminal
justice system and either stated or suggested they would be influenced by the fact that the
defendant reminded them of a family member. (Id. at pp. 550–551.) One of the excused
jurors also stated she was uncomfortable serving as a juror and determining the question
of guilt. (Id. at p. 550.) Henderson concluded the trial court did not abuse its discretion
because the record supported its finding that the prospective jurors were “substantially
impaired by their bias and sympathy.” (Id. at pp. 552–553.)
Here, as in Henderson, the trial court excused Juror No. 1 for cause not because of
her views on the criminal justice system, but because those views would impair her
19.
ability to fulfill her duties as a juror. When the trial court asked Juror No. 1 if her views
on the criminal justice system would interfere with her ability to be fair and impartial to
both sides, she responded she “probably would be more sympathetic” to appellant. She
stated it would be “really difficult” not to let sympathy or bias influence her decision, and
ultimately told the court she thought it would be “too much” to be fair and neutral to both
sides. While appellant notes that at one point Juror No. 1 stated she would be willing to
follow the law even if she disagreed with it, during follow-up questioning by defense
counsel, she admitted it would be “truly” difficult to do so. Juror No. 1 also stated she
was uncomfortable serving as a juror and having “someone’s future … in [her] hands.”
Based on Juror No. 1’s answers, the trial court reasonably concluded that her bias and
sympathy would prevent her from being a fair and impartial juror. And because this
finding of actual bias was reasonable and supported by the record, there is no basis to
conclude the for cause excusal of Juror No. 1 was motivated by racial bias.
In an effort to demonstrate the excusal of Juror No. 1 was racially motivated,
appellant relies on comparative juror analysis between Juror No. 1 and Juror No. 2.
Appellant does not provide legal authority that comparative juror analysis is applicable to
challenges for cause. In the context of assessing whether a peremptory challenge was
made for a discriminatory purpose under the Wheeler/Batson8 framework, our high court
has reasoned that “[t]he rationale for comparative juror analysis is that a side-by-side
comparison of a prospective juror struck by the prosecutor with a prospective juror
accepted by the prosecutor may provide relevant circumstantial evidence of purposeful
discrimination.” (People v. DeHoyos (2013) 57 Cal.4th 79, 109.) “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.” (Miller-El v. Dretke (2005) 545 U.S. 231, 241.)
8 People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.
20.
Appellant argues this rationale also applies to challenges for cause. In this vein,
he claims Juror No. 1 and Juror No. 2 gave similar answers during voir dire: both had
negative opinions of the criminal justice system, expressed that they might be unable to
be fair and impartial in this case, and had reservations about serving on a jury. In
appellant’s view, the fact that the trial court excused Juror No. 1, who is African-
American, but did not excuse Juror No. 2, who is not African-American, suggests the
court’s rulings were racially motivated.
To the extent comparative juror analysis is applicable here, appellant’s assertion
that Juror No. 1 and Juror No. 2 were similarly situated is not supported by the record.
During voir dire, Juror No. 2 expressed concerns that her negative view of the criminal
justice system, her prior jury experience, and strong opinions about drugs might impact
her ability to be fair and impartial. But after follow-up questions by the trial court about
each concern, Juror No. 2 affirmed that she could set those views and experiences aside
and decide the case based on the law and the evidence presented at trial. In contrast,
Juror No. 1 repeatedly maintained it would be “really difficult” for her to put aside bias
and sympathy, ultimately stating she thought it would be “too much” to be fair and
neutral to both sides. Given this disparity, the trial court had ample basis to excuse Juror
No. 1 but not Juror No. 2. For this reason, appellant’s comparative juror analysis does
not suggest the trial court acted with racial bias.
Finally, appellant relies on the fact that Juror No. 1 was the only African-American
prospective juror personally questioned during voir dire. The jury venire included two
other prospective jurors who identified as African-American in their questionnaires. But
the jury was selected and sworn before these two prospective jurors were called into court
for questioning or subject to challenges for cause or peremptory challenges. Thus,
appellant argues Juror No. 1’s excusal was racially motivated because it resulted in there
being no African-American jurors.
21.
In the Wheeler/Batson context, our high court has explained that while “excusal of
all members of a particular group may give rise to an inference of impropriety, especially
if the defendant belongs to the same group, that inference, as we have observed, is not
dispositive.” (People v. Crittenden (1994) 9 Cal.4th 83, 119.) Moreover, the inference is
of “less weight” where “only a single member of that group” was excused. (Ibid.) Here,
Juror No. 1 was the only African-American prospective juror the trial court excused for
cause, and nothing in the record suggests the trial court acted with racial bias.
Accordingly, the fact that Juror No. 1 was the only African-American prospective juror
questioned during voir dire does not affect our conclusion.
There is “no constitutional violation where a court determines a prospective juror
cannot be impartial, for whatever reason.” (Henderson, supra, 78 Cal.App.5th at p. 548.)
The record amply supports the trial court’s conclusion that Juror No. 1 exhibited actual
bias and could not be fair and impartial. Accordingly, appellant fails to show the trial
court acted with racial bias or otherwise abused its discretion in excusing Juror No. 1 for
cause, and this claim is without merit.
D. Code of Civil Procedure section 231.7 does not apply to challenges for
cause.
Appellant also argues the for cause excusal of Juror No. 1 was improper based on
recently enacted Code of Civil Procedure section 231.7. Effective in criminal trials
beginning January 1, 2022 (Code Civ. Proc., § 231.7, subd. (i)), this section “create[ed]
new procedures for identifying unlawful discrimination in the use of peremptory
challenges.” (People v. Jaime (2023) 91 Cal.App.5th 941, 943, italics added.) As
pertinent here, Code of Civil Procedure section 231.7 provides that a peremptory
challenge of a prospective juror based on certain enumerated reasons “is presumed to be
invalid” unless the party exercising the challenge shows by clear and convincing
evidence that the proffered reason for the challenge is unrelated to the prospective juror’s
race, ethnicity, gender, or other protected characteristic. (Code Civ. Proc., § 231.7,
22.
subd. (e).) The list of presumptively invalid reasons for exercising a peremptory
challenge includes: “Expressing a distrust of or having a negative experience with law
enforcement or the criminal legal system”; “Expressing a belief that law enforcement
officers engage in racial profiling or that criminal laws have been enforced in a
discriminatory manner”; and “Having a close relationship with people who have been
stopped, arrested, or convicted of a crime.” (Code Civ. Proc., § 231.7, subd. (e)(1)-(3).)
Appellant acknowledges that Code of Civil Procedure section 231.7 does not
expressly apply to challenges for cause. Nonetheless, he argues the legislative history
behind its enactment and legislative findings reveal a clear policy that the excusal of a
prospective juror for cause based on a presumptively invalid reason under this section
“should not be tolerated in jury selection.” He notes, for example, that in enacting Code
of Civil Procedure section 231.7, the Legislature found that “many of the reasons
routinely advanced to justify the exclusion of jurors from protected groups are in fact
associated with stereotypes about those groups or otherwise based on unlawful
discrimination,” and that the statute “designates several justifications as presumptively
invalid and provides a remedy for both conscious and unconscious bias in the use of
peremptory challenges.” (Stats. 2020, ch. 318, § 1, subd. (b).) According to appellant, it
would be nonsensical to permit excusal for cause for reasons that are presumptively
invalid under this section.
In People v. Aranda the court rejected the same argument appellant makes here,
finding that “[o]n its face, [Code of Civil Procedure] section 231.7 applies only to
peremptory challenges, not challenges for cause.” (People v. Aranda (2023) 95
Cal.App.5th 311, 314 (Aranda).) Aranda observed the term “peremptory challenge” is
used 25 times throughout Code of Civil Procedure section 231.7. (Aranda, supra, at
p. 314.) Conversely, Code of Civil Procedure section 231.7 only mentions challenges for
cause in subdivision (l), which states: “ ‘It is the intent of the Legislature that enactment
of this section shall not, in purpose or effect, lower the standard for judging challenges
23.
for cause or expand use of challenges for cause.’ ” (Aranda, at p. 314.) Rejecting the
defendant’s argument that limiting Code of Civil Procedure section 231.7 to peremptory
challenges would be contrary to legislative intent, Aranda reasoned that under well-
established rules of statutory interpretation, the plain meaning of the statute controls,
because it is the most reliable indication of legislative intent. (See Aranda, at pp. 314–
315.) Aranda concluded that “[t]he language of [the statute] is clear: it applies only to
peremptory challenges.” (Id. at p. 315.) Extending Code of Civil Procedure section
231.7 to challenges for cause would conflict with its plain language. (Aranda, at p. 315.)
We agree with Aranda that Code of Civil Procedure section 231.7 only applies to
peremptory challenges. If the Legislature intended that the statute apply to challenges for
cause, “it would have said so directly, as it easily could have done.” (Ramirez v. City of
Gardena (2018) 5 Cal.5th 995, 1001.) “[W]e presume the Legislature intended
everything in a statutory scheme, and we should not read statutes to omit expressed
language or include omitted language.” (Jurcoane v. Superior Court (2001) 93
Cal.App.4th 886, 894.) Adopting appellant’s position, which would broaden Code of
Civil Procedure section 231.7 beyond its express terms, would be contrary to this canon
of statutory interpretation.
We also reject appellant’s argument that our reading of Code of Civil Procedure
section 231.7 would lead to absurd results. (See People v. Mendoza (2000) 23 Cal.4th
896, 908 [reviewing court presumes Legislature did not intend statutory construction that
produces absurd consequences].) The statute was enacted to prevent parties from using
peremptory challenges to unfairly exclude prospective jurors based on membership in a
protected group. (Stats. 2020, ch. 318, § 1, subd. (a).) But unlike a peremptory
challenge, which generally can be made without providing a reason (Code Civ. Proc.,
§ 226, subd. (b)), excusal for cause based on actual bias requires a judicial finding that a
prospective juror cannot fully perform the duties of a juror. (Code Civ. Proc., § 225,
subd. (b)(1)(C).) Excusal for cause must be based on the appropriate legal standard,
24.
supported by the record, and is subject to appellate review. (People v. Armstrong, supra,
6 Cal.5th at p. 751; People v. Clark, supra, 52 Cal.4th at p. 895.) In excluding challenges
for cause from Code of Civil Procedure section 231.7, the Legislature did not create a
loophole that would allow excusal of prospective jurors for inappropriate reasons.
In any event, even assuming Code of Civil Procedure section 231.7 applies to
challenges for cause, its provisions were not violated by the excusal of Juror No. 1. In
issuing its ruling, the trial court stated it was familiar with the section and explained that
excusal is not warranted simply because a juror believes the criminal justice system
suffers from institutional racism. The court specified it was not excusing Juror No. 1
“because of her views,” but because Juror No. 1 “did say because of those views she
would have a very difficult time being fair in this case,” and that “she clearly has a great
deal of sympathy for [appellant] just by virtue of his skin color.” As we explained above,
the trial court’s reasoning was supported by the record. Moreover, the court reasoned
Juror No. 1 stated she was uncomfortable with the responsibility of determining guilt.
Accordingly, appellant’s assertion that the trial court excused Juror No. 1 solely because
of her views on the criminal justice system is unfounded. To the extent Code of Civil
Procedure section 231.7 reflects a Legislative policy against excusing jurors for cause
based on their views of the criminal justice system, it is not implicated here.
E. Appellant’s claim the for cause excusal of Juror No. 1 violated the
CRJA is forfeited. In any event, the claim lacks merit.
In addition to the above claims regarding the for cause excusal of Juror No. 1,
appellant argues the trial court and prosecutor violated the CRJA by exhibiting bias or
animus toward appellant because of his race. We conclude this claim is forfeited because
appellant did not raise it below. The claim also lacks merit, because nothing in the record
suggests the trial court acted with racial bias or animus.
25.
1. Legal background—the CRJA.
Effective January 1, 2021, the CRJA (Stats. 2020, ch. 317, § 3.5) added
section 745 to the Penal Code, which states, “The state shall not seek or obtain a criminal
conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national
origin.” (§ 745, subd. (a).) As pertinent here, a violation of the CRJA occurs if “[t]he
judge [or] an attorney in the case” exhibits racial “bias or animus towards the defendant,”
(§ 745, subd. (a)(1)), or uses “racially discriminatory language about the defendant’s race,
ethnicity, or national origin.” (§ 745, subd. (a)(2).) The CRJA does not define the terms
“bias” or “animus,” but specifies that the moving party is not required to prove
“intentional discrimination.” (§ 745, subd. (c)(2).) However, the legislative findings to
the CRJA include a non-exhaustive list of potentially violative statements or conduct,
including “racially incendiary or racially coded language, images, and racial stereotypes,”
and suggests that people of a certain race are “predisposed” to criminal conduct.
(Stats. 2020, ch. 317, § 2, subds. (d), (e).) The moving party has the burden of proving a
violation of the CRJA by a preponderance of the evidence. (§ 745, subd. (c)(2).)
2. The claim is forfeited.
A CRJA claim may be raised on direct appeal from conviction or sentence if the
claim is based on the trial record. (§ 745, subd. (b).) However, such claims are still
subject to appellate rules of forfeiture. (People v. Lashon (2024) 98 Cal.App.5th 804,
810–811 (Lashon).) In Lashon, the court observed the Legislature “did not include any
language indicating a section 745 claim could be presented on direct appeal for the first
time.” (Lashon, supra, 98 Cal.App.5th at p. 812.) Lashon also noted the Legislature
included a waiver provision, providing that a CRJA motion may be deemed waived if not
“made as soon as practicable upon the defendant learning of the alleged violation.”
(§ 745, subd. (c); Lashon, at p. 813.) Based on this statutory language, and its
examination of section 745’s legislative history, Lashon concluded that a CRJA claim on
26.
direct appeal “is subject to the general appellate rules of preservation and forfeiture of
claims that could have been but were not made in the trial court.” (Lashon, at pp. 812–
815.) “It makes little sense for the Legislature to prescribe a comprehensive procedure
for making and adjudicating a section 745 motion at the trial level (including a specific
waiver provision for untimely motions), only to allow defendants who could have but did
not use that procedure (thereby preserving their claim for review) to bypass that
procedure and pursue a section 745 claim for the first time on direct appeal.” (Lashon,
supra, 98 Cal.App.5th at p. 813.)
Following Lashon, a different panel of this court agreed that a CRJA claim is
forfeited where a defendant could have but failed to raise the claim below. (People v.
Singh (2024) 103 Cal.App.5th 76, 114–115 (Singh).) Adopting Lashon’s reasoning,
Singh observed that “[t]he Legislature could have, but did not, expressly declare that a
defendant in such instances could raise such a claim on appeal for the first time.” (Singh,
supra, at p. 114.) Singh also explained that obviating traditional forfeiture rules “would
render the timeliness requirement set forth in section 745, subdivision (c) meaningless
because, even if such a claim was not timely raised below, it could be raised for the first
time on appeal.” (Singh, at p. 115.) Conversely, applying the forfeiture rule “harmonizes
the statutory provisions (namely, § 745, subds. (b) and (c)) and gives each provision full
effect.” (Ibid.)
Appellant argues Lashon was wrongly decided. He contends the plain language of
section 745, subdivision (b) authorizes a defendant to raise a CRJA claim for the first
time on direct appeal, and that to conclude otherwise would render this language
superfluous. We disagree. As originally enacted, the CRJA only expressly authorized a
claim to be raised in the trial court, in habeas proceedings, or in a postjudgment motion
pursuant to section 1473.7. (§ 745, former subd. (b) (Stats. 2020, ch. 317, § 3).) The
Legislature subsequently enacted Assembly Bill No. 1118 (2023-2024 Reg. Sess.) (Stats.
2023, ch. 464, § 1), amending section 745, subdivision (b) to allow an appellant to raise a
27.
claim alleging a violation of the CRJA “based on the trial record … on direct appeal from
the conviction or sentence.” (§ 745, subd. (b).) Assembly Bill No. 1118’s legislative
history reveals this language was added to clarify that “a CRJA claim based on the trial
record may be raised on direct appeal from the conviction or sentence, not just in a
habeas petition.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1118
(2023–2024 Reg. Sess.) as amended Mar. 15, 2023, p. 5.) As amended, the plain
language of section 745, subdivision (b), accomplishes this purpose by clarifying that
CRJA claims may be raised on direct appeal. But the application of forfeiture rules to
such claims does not render this amended language meaningless—CRJA claims may be
raised on direct appeal but may not be raised for the first time on direct appeal.
Next, appellant contends the application of forfeiture rules would be contrary to
the Legislature’s intent to “streamline” the CRJA procedure by allowing claims to be
resolved on direct appeal. He relies on a statement by Assembly Bill No. 1118’s author
that CRJA claims “would be more efficiently decided through the appeals process as
opposed to the habeas route, which requires more litigation and judicial resources.” (Sen.
Com. on Public Safety, Analysis of Assem. Bill No. 1118 (2023–2024 Reg. Sess.) June 6,
2023, p. 5.) However, nothing in the legislative history cited by appellant suggests the
Legislature intended to accomplish this goal by doing away with forfeiture rules. We also
fail to see how appellant’s interpretation of the CRJA would conserve judicial resources.
Permitting a CRJA claim “to be raised on direct appeal for the first time when it could
have been timely raised and remedied below would be directly contrary to the goal of
promoting judicial efficiency.” (People v. Singh, supra, 103 Cal.App.5th at p. 115.)
Instead of allowing trial courts to “swiftly and effectively address racial bias as soon as
practical upon a defendant learning of an alleged violation,” appellant’s interpretation
would encourage “improper ‘sandbagging’ ” and require appellate courts to review CRJA
claims that have not been fully litigated below. (Lashon, supra, 98 Cal.App.5th at
p. 815.)
28.
Finally, appellant claims application of forfeiture rules would conflict with the
CRJA’s disqualification provision, which states that if the motion is based “on conduct or
statements by the judge, the judge shall disqualify themselves from any further
proceedings under this section.” (§ 745, subd. (b).) This provision merely provides that
such claims must be decided by a different trial judge, similar to the procedure employed
for challenges against a judge for cause under Code of Civil Procedure section 170.1.
(See Code Civ. Proc., § 170.3.) Requiring CRJA claims based on the trial judge’s
conduct be raised in the trial court does not conflict with this provision.
In sum, we agree with Lashon and Singh that CRJA claims are subject to appellate
rules of forfeiture. In the instant case, appellant objected to the People’s request to
excuse Juror No. 1 for cause but did not contend that the court or prosecutor violated the
CRJA.9 Appellant therefore forfeited his CRJA claim by failing to raise a “timely and
specific objection on the ground he now raises.” (People v. Pearson (2013) 56 Cal.4th
393, 416; People v. Elliott (2012) 53 Cal.4th 535, 572.)
3. Appellant fails to establish the trial court and prosecutor
violated the CRJA.
Even assuming appellant’s CRJA claim is not forfeited, we conclude it fails on the
merits. As detailed above, nothing in the record suggests the trial court’s for cause
9 Appellant notes defense counsel argued in his sentencing memorandum that
application of the armed with a deadly weapon finding (§§ 667, subd. (e)(2)(C)(iii),
1170.12, subd. (c)(2)(C)(iii)) would violate the CRJA because it would result in
discriminatory racial impact under section 745, subdivision (a)(4). In support, defense
counsel stated, “[I]t is worth noting that [appellant] was convicted by a jury that
contained not a single African American peer,” and that Juror No. 1 was excused for
cause after she “expressed concerns about her ability to be fair” because of her views of
the criminal justice system. We read this invocation of the CRJA as a sentencing
argument, not a challenge to the for cause excusal of Juror No. 1. To the extent defense
counsel was seeking to make such a challenge, it was not a timely objection “made as
soon as practicable upon [appellant] learning of the alleged violation.” (§ 745, subd. (c);
see Lashon, supra, 98 Cal.App.5th at pp. 812–813.)
29.
excusal of Juror No. 1 was motivated by racial bias. Appellant contends the trial court’s
discriminatory purpose is evidenced by the fact that Juror No. 1 was the only
African-American prospective juror questioned during voir dire, and he repeats the
comparative juror analysis arguments with respect to Juror No. 2. But as we have
explained, the trial court had ample basis to excuse Juror No. 1 but deny appellant’s cause
challenge to Juror No. 2, and the excusal of a single prospective juror, without more, does
little to establish racial bias. Appellant also asserts that the trial court excused Juror No. 1
because of her negative views of the criminal justice system and argues excusal on this
basis demonstrates racial bias because it is a presumptively invalid reason under Code of
Civil Procedure section 231.7. However, the record is clear that the trial court excused
Juror No. 1 based on a finding of actual bias, not because of her views on the criminal
justice system.
In addition, there is no basis to conclude that the prosecutor acted with racial bias
or animus by requesting to excuse Juror No. 1 for cause. The prosecutor argued that
Juror No. 1’s answers during voir dire demonstrated she could not be a fair and impartial
juror because of her bias in favor of appellant and against the People. This argument
comported with the standard for actual bias—that Juror No. 1’s “state of mind” would
prevent her “from acting with entire impartiality.” (Code Civ. Proc., § 225, subd.
(b)(1)(C).) Given the clear legal relevance of the prosecutor’s argument, his request to
excuse Juror No. 1 did not exhibit racial bias or animus.
To conclude, appellant fails to meet the burden of establishing the trial record
demonstrates racial bias or animus by the trial court or prosecutor, even under the
applicable preponderance of the evidence standard. The prosecutor’s challenge for cause
and the trial court’s ruling were based on well-established law that a juror may be
excused for actual bias. Nothing in the record suggests either the trial court or prosecutor
were expressly or implicitly motivated by bias or animus against appellant because of his
30.
race. We therefore reject appellant’s assertion that the trial court and prosecutor violated
the CRJA.
DISPOSITION
The judgment is affirmed.
LEVY, J.
WE CONCUR:
HILL, P. J.
POOCHIGIAN, J.
31.