People v. Melendez CA4/3 ( 2024 )

Filed 10/31/24 P. v. Melendez CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062710
v. (Super. Ct. No. 22NF0357)
CARLOS MAURICIO MELENDEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Gassia Apkarian, Judge. Affirmed.
Gerald J. Miller, 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, Assistant Attorney General, Collette
C. Cavalier and James H. Flaherty III, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
After a jury convicted Carlos Mauricio Melendez of domestic
battery, assault, and child abuse and endangerment, he was sentenced to
eight years in prison. He contends his convictions must be reversed because
the prosecutor improperly excluded a prospective juror in violation of Code of
Civil Procedure section 231.7.1 As explained below, we conclude the trial
court properly overruled the defense objection to the exercise of the
peremptory challenge. Melendez also contends the prosecutor committed
Griffin or Doyle2 error during closing argument. The record shows no such
error. Accordingly, we affirm.
PROCEDURAL HISTORY
On April 25, 2023, a jury found Melendez guilty of domestic
battery causing injury with a prior conviction, assault with force likely to
cause great bodily injury, and child abuse and endangerment. In a separate
proceeding, the trial court found that Melendez previously had been convicted
of a strike under the Three Strikes law and a serious felony.
The trial court sentenced Melendez to eight years in state prison.
Melendez timely appealed.
1
All further statutory references are to the Code of Civil
Procedure unless otherwise stated.
2
Griffin v. California (1965) 380 U.S. 609 (Griffin); Doyle v. Ohio
(1976) 426 U.S. 610 (Doyle).
2
DISCUSSION
I.
SECTION 231.7
Melendez contends the trial court erred in permitting the
prosecutor to exercise a peremptory challenge to Prospective Juror Number
145 (PJ145) over his section 231.7 objection.
A. Relevant Facts
During voir dire, when defense counsel was questioning
prospective jurors, PJ145 stated he was a retired attorney who practiced
probate law. Defense counsel later asked the entire group of prospective
jurors whether anyone would believe Melendez committed the current alleged
crimes based on his past acts. PJ145 stated he would not because “what
happened today and what happened the day after has nothing to do with it.”
Later, the prosecutor asked the prospective jurors whether a
single witness can prove a case, and PJ145 shook his head in disagreement.
The prosecutor noted PJ145’s disagreement, and posed a hypothetical about
whether a robber should be prosecuted if he robbed PJ145 and there were no
other witness to the robbery. PJ145 responded that it would be inappropriate
to not prosecute the robber. During an unrecorded portion of the prosecutor’s
questioning, PJ145 revealed he was a criminal defense attorney.
Subsequently, the prosecutor used his first peremptory challenge
to excuse PJ145. The prosecutor stated: “My only reason is he was a defense
attorney. Has never prosecuted cases, so that would be my reason for
wanting to kick him.” After the defense objected under section 231.7, trial
court initially stated it was inclined to deny the peremptory challenge
because PJ145 did not suggest that he had “any type of leaning” in favor of
criminal defendants. The prosecutor responded: “[M]y challenge is simply
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based on the fact that he is, in fact, an attorney, and . . . it is not a cause
challenge,” such that the challenge was “race, gender, ethnicity, everything
neutral.” The court stated it would further consider the peremptory
challenge after the lunch recess.
Following the lunch recess, the trial court found the prosecutor
was entitled to exercise the peremptory challenge. The court stated: “I do not
find that the reasons given to exercise a peremptory challenge have anything
to do with the cognizable group membership bearing in mind conscious and
unconscious bias.”
B. Applicable Law
Section 231.7 prohibits the use of “a peremptory challenge to
remove a prospective juror on the basis of the prospective juror’s race,
ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or the perceived membership of the prospective juror in
any of those groups.” (§ 231.7, subd. (a).) If a party or the trial court objects to
the use of a peremptory challenge, “the party exercising the peremptory
challenge shall state the reasons the peremptory challenge has been
exercised.” (§ 231.7, subd. (c).) The trial court then “evaluate[s] the reasons
given to justify the peremptory challenge in light of the totality of the
circumstances. The court shall consider only the reasons actually given and
shall not speculate on, or assume the existence of, other possible justifications
for the use of the peremptory challenge.” (§ 231.7, subd. (d)(1).)
Section 231.7 “contains two separate provisions (subds. (e) and
(g)) describing presumptively invalid reasons for the exercise of a peremptory
challenge. Each subdivision sets out a distinct process by which a court
determines whether a presumptively invalid reason can be absolved of that
presumption. (Id., subds. (e), (f), (g)(2).)” (People v. Ortiz (2023) 96
4
Cal.App.5th 768, 793.) As relevant to this case, presumptively invalid reasons
include: “(1) Expressing a distrust of or having a negative experience with
law enforcement or the criminal legal system”; “(2) Expressing a belief that
law enforcement officers engage in racial profiling or that criminal laws have
been enforced in a discriminatory manner.”; “(3) Having a close relationship
with people who have been stopped, arrested, or convicted of a crime”; and
“(10) Employment in a field that is disproportionately occupied by members
listed in subdivision (a) or that serves a population disproportionately
comprised of members of a group or groups listed in subdivision (a).” (§ 231.7,
subd. (e)(1), (2), (3) and (10).)
Finally, under section 231.7, subdivision (d), reasons that are not
presumptively invalid are evaluated “in light of the totality of the
circumstances” to determine if “there is a substantial likelihood that an
objectively reasonable person,” who is aware that unconscious bias and
purposeful discrimination have resulted in the unfair exclusion of potential
jurors in California, would view membership or perceived membership in any
of the protected groups as a factor in the use of the peremptory challenge.
(§ 231.7, subd. (d)(1), (2)(A).)
On appeal, the overruling of an objection under section 231.7 is
reviewed de novo “with the trial court’s express factual findings reviewed for
substantial evidence.” (§ 231.7, subd. (j).) The appellate court is to consider
only those reasons actually given by the trial court and may “not speculate as
to or consider reasons that were not given to explain either the party’s use of
the peremptory challenge or the party’s failure to challenge similarly situated
jurors who are not members of the same cognizable group as the challenged
juror, regardless of whether the moving party made a comparative analysis
argument in the trial court.” (Ibid.) If the appellate court concludes the trial
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court erred by overruling an objection, “that error shall be deemed
prejudicial, the judgment shall be reversed, and the case remanded for a new
trial.” (Ibid.)
C. Analysis
Melendez argues that although the prosecutor’s stated reason
was facially neutral, it implicated four presumptively invalid reasons,
namely, a criminal defense attorney is “[e]mploy[ed] in a field that is
disproportionately occupied by members listed in subdivision (a) or that
serves a population disproportionately comprised of members of a group or
groups listed in subdivision (a),” (§ 231.7, subd. (e)(10)), and “a criminal
defense attorney can be expected to have a ‘distrust of or . . . a negative
experience with law enforcement or the criminal legal system’ (subd[.] (e)(1));
to have ‘express[ed] a belief that law enforcement officers engage in racial
profiling or that criminal laws have been enforced in a discriminatory
manner’ (sub[.] (e)(2)); and to have a ‘close relationship with people who have
been stopped, arrested, or convicted of a crime’ (subd[.] (e)(3)).” We disagree.
As to PJ145’s employment as a criminal defense attorney, there
is no evidence in the record indicating the composition of his defense clients
or the specific area of criminal law, such as white collar crime. The prosecutor
thus had no idea about PJ145’s clientele, and there is no evidence the
prosecutor inferred the clientele was disproportionately Hispanic like
Melendez. As to the remaining three reasons, there is no evidence in the
record supporting those reasons. The record does not show PJ145 expressed
distrust in the criminal legal system or law enforcement; expressed any
belief, positive or negative, about the criminal system; or had a close
relationship with any person who was stopped, arrested, or convicted of a
crime. It is speculative to assume PJ145 had distrust and negative beliefs
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about the criminal justice system or its constituent members or that he had
a close relationship with his clients merely based on his occupation as a
criminal defense attorney. In short, there is no evidence in the record that the
prosecutor’s stated reason for exercising the peremptory challenge was
pretextual. Under the totality of the circumstances, there is not a substantial
likelihood “that an objectively reasonable person would view race, ethnicity,
gender, gender identity, sexual orientation, national origin, or religious
affiliation, or perceived membership in any of those groups, as a factor in the
use of the peremptory challenge.” (§ 231.7, subd. (d)(1).) The trial court
properly overruled the defense objection to the peremptory challenge to
PJ145.3
II.
GRIFFIN/DOYLE ERROR
During closing arguments, when explaining and addressing the
flight instruction, the prosecutor stated that Melendez failed to “stick around
and talk to the cops.” The trial court overruled defense counsel’s objection to
this comment under Griffin, supra, 380 U.S. 609 and Doyle, supra, 426 U.S.
610.
Melendez acknowledges the prosecutor could comment on his
alleged flight from the scene, but contends the prosecutor’s reference to
3
Melendez referenced defense counsel’s objections to the
peremptory challenge under Batson v. Kentucky (1986) 476 U.S. 79 and
People v. Wheeler (1978) 22 Cal.3d 258 and the Racial Justice Act of 2020
(Pen. Code, § 745), but does not articulate a reasoned claim of error under
Batson/Wheeler or the Racial Justice Act of 2020. Accordingly, any such
claim is forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘[E]very
brief should contain a legal argument with citation of authorities on the
points made. If none is furnished on a particular point, the court may treat it
as waived, and pass it without consideration’”].)
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“talk[ing] to the cops” improperly implicated his constitutional rights as set
forth in Griffin and Doyle.
In Griffin, the United States Supreme Court held that the
privilege against self-incrimination of the Fifth Amendment prohibits any
comment on a defendant’s failure to testify at trial that invites or allows the
jury to infer guilt therefrom, whether in the form of an instruction by the
court or a remark by the prosecution. (380 U.S. at pp. 611-615.) We evaluate
claims of Griffin error by inquiring whether there is “a reasonable likelihood
that any of the [prosecutor’s] comments could have been understood, within
its context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2
Cal.4th 629, 663.) The prosecutor’s comment that Melendez did not stick
around to talk to the police merely describes his alleged flight from the crime
scene. It did not connect the flight to his testifying at trial. Nor did the
comment suggest Melendez should testify at trial to explain his reason for
fleeing from the scene. In sum, there is not a reasonable likelihood the
comment could have been understood, within its context, to refer to his
failure to testify at trial.
Doyle holds that, when a testifying defendant provides an
exculpatory explanation of his conduct at trial, a prosecutor may not impeach
him with post-Miranda4 warning silence. (Doyle, at pp. 612-614, 618.) Doyle
has been limited to post-Miranda silence. (See Fletcher v. Weir (1982) 455
U.S. 603, 607 [“In the absence of the sort of affirmative assurances embodied
in the Miranda warnings, we do not believe that it violates due process of law
for a State to permit cross-examination as to postarrest silence when a
defendant chooses to take the stand”]; Brecht v. Abrahamson (1993) 507 U.S.
4Miranda v. Arizona (1966) 3834 U.S. 436.
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619, 628 [“[T]he Constitution does not prohibit the use for impeachment
purposes of a defendant’s silence prior to arrest, [citation], or after arrest if
no Miranda warnings are given [citation]”].) The prosecutor’s comment did
not implicate Melendez’s post-Miranda warning silence; at best, it implicates
his pre-arrest silence. In sum, there was no Griffin or Doyle error,
DISPOSITION
The judgment is affirmed.
DELANEY, J.
WE CONCUR:
MOORE, ACTING P. J.
SANCHEZ, J.
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