People v. Christian CA4/2

Filed 9/2/15 P. v. Christian CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059966
v. (Super.Ct.No. RIF1201183)
CORY MICHAEL CHRISTIAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles Ragland, Scott C. Taylor, Meredith S. White, and Christopher P. Beesley,
Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
Appellant and defendant Cory Christian (defendant) and codefendant Vincent
Robert Avila, who is not a party to this appeal, were tried together and convicted of
kidnapping for robbery1 and carjacking.2 The jury found true as to both counts special
allegations that codefendant had personally used a knife in the commission of the
offenses.3 Defendant was sentenced to seven years to life in prison.
Defendant appeals from judgment entered against him on the ground the trial court
erred in denying his motion challenging the prosecutor’s exercise of peremptory
challenges to three African American jurors (Wheeler motion), in violation of principles
set forth in Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
(1978) 22 Cal. 3d 258 (Wheeler). Defendant contends the trial court violated his rights to
equal protection and trial by a representative cross-section of the community.
Giving deference to the trial court’s findings because the trial court is in the best
position to evaluate the credibility of the prosecutor’s explanations, we conclude the trial
court made a sincere and reasoned effort to evaluate the prosecutor’s race-neutral
justifications for excusing the three prospective jurors, and therefore did not err in
denying defendant’s Wheeler motion.
1 Penal Code section 209, subdivision (b)(1); count 1. Unless otherwise noted, all
statutory references are to the Penal Code.
2 Section 215; count 2.
3 Section 12022, subdivision (b)(1).
2
II
FACTS
Because the sole issue raised on appeal concerns jury selection, a detailed
statement of the facts is unnecessary. A brief summary of the facts relating to the
charged crimes is provided as follows.
On January 24, 2012, Avila and defendant (collectively referred to as defendants)
approached Jarrad Reyes in the Riverside Metrolink station parking lot. Reyes was a 20-
year-old college student who had just gotten off the Metrolink in Riverside at around 5:40
p.m. As Reyes approached his car, defendants asked Reyes for a ride. Reyes said no. As
Reyes got into his car, Avila pushed him in, put a knife to Reyes’s chest, and threatened
to kill him if Reyes made any noise. Defendant sat in the rear passenger seat and Avila
got in the front passenger seat. Defendants ordered Reyes to drive them out of the
Metrolink station parking lot. Several blocks away, defendants forced Reyes into the
back seat and Avila got into the driver’s seat. Defendants robbed Reyes of his watch,
wallet, iPhone, hat and sweatshirt. Avila drove to an ATM and attempted to force Reyes
at knifepoint to withdraw cash. Reyes managed to escape and get help.
Two unauthorized ATM withdrawals, totaling $300, were made from Reyes’s
account, using Reyes’s debit card. Reyes identified defendants from ATM surveillance
footage. Avila was wearing a sweatshirt and hat he had taken from Reyes. Reyes’s car
was recovered that night in a parking lot a short distance from the ATM. A knife and
ATM card were recovered from the vehicle.
3
III
VOIR DIRE PROCEEDINGS
The trial court began voir dire by calling the names of 24 prospective jurors for the
jury panel. The names included African Americans, C.G. and D.S. The judge asked the
prospective jurors to state if they knew anyone in the courtroom, such as courtroom staff,
the judge, lawyers, or any witnesses, including a police officer, two police detectives, and
a sheriff’s department employee. The court also requested the jurors to each respond to
questions regarding the jurors’ personal background, including residence, marital status,
occupation, number of children and ages, past jury experience, service in the military and
rank, highest level of education, and whether the juror believed he/she could be fair and
impartial.
C.G. stated he was 18 years old. He then answered the court’s general questions
succinctly. The court asked a few follow-up questions, which C.G. answered
appropriately. D.S. stated he had been retired for eight years. His previous occupation
was facility maintenance engineer. His spouse was also retired. She had worked for
Riverside County. He had never been on a jury. He served in the U.S. Marine Corps,
with an honorable discharge as a corporal. He had an AA college degree in business
administration.
The court asked if the prospective jurors knew anyone in law enforcement and, if
so, to state the person’s relationship to the juror and whether the juror’s relationship
would have any impact on the juror’s ability to be fair and impartial. C.G. responded that
his father had worked for the LAPD for over 20 years but would be retiring soon. C.G.
4
believed he could still be fair and impartial. C.G. responded briefly and succinctly to the
court’s two follow-up questions as well.
The court asked the jurors if anyone had had any negative experiences with law
enforcement, such as getting harassed or getting a ticket, which the juror believed he/she
did not deserve. D.S. said he had received a traffic ticket he believed he did not deserve.
The ticket was for parking at a Los Angeles County beach because he did not purchase a
parking pass, but he was parked in a handicapped zone with his placard displayed. The
ticket was “ongoing.” D.S. said he did not believe the matter would impact him in the
instant case.
The attorneys then questioned the jurors. Defendant’s attorney, Cohen, asked each
juror to state one word about him or herself that would make a good juror. Cohen told
the jurors they could not use a word another juror had already stated. C.G. said,
“Honest.” D.S. also said, “Honest.” Cohen noted someone else had already used the
word. D.S. said, “Impatient.” Cohen said, “All right,” and D.S. replied, “Got you.”
Cohen asked the jurors why someone charged with a crime might choose not to
testify, and discussed signs of nervousness when testifying, such as sweating, shaking,
confusion. Cohen asked the prospective jurors what they would think if a witness, who
was charged with a crime, was sweating, shaking, and confused. D.S. said, “Nervous.”
Another juror said, “Guilty.”
Avila’s attorney, Dorr, asked what the jurors would do if at that moment he asked
them to vote whether defendant was guilty. After a couple of jurors responded, Dorr
asked C.G. to respond to the question. C.G. said “I would need the evidence.” Dorr told
5
the jurors that, in order to find the defendant guilty, every element of the crime must be
proven. Dorr asked if D.S. agreed. D.S. said yes. Dorr asked C.G. and D.S. if there was
any reason to find the defendant not guilty, if the People had not proven their case
beyond a reasonable doubt. C.G. and D.S. said no.
The prosecutor questioned the jurors as well. C.G. and D.S. were not individually
questioned and did not make any statements in response to any of her questions directed
to the jury as a whole.
After the court and counsel completed questioning the prospective jurors, counsel
all passed on excusing the jurors for cause. Next, counsel alternated exercising
peremptory challenges. The prosecutor used six peremptory challenges, including
excusing D.S. and C.G. Defense counsel jointly also exercised six peremptory
challenges. There were 11 jurors remaining on the jury panel. Twelve jurors were
needed plus two alternates. The trial court called 13 more prospective juror names,
including B.K. The first prospective juror was placed in the jury box. The court asked
the new prospective jurors the same preliminary questions as were asked of the initial
panel. B.K. stated she was a registered nurse for almost 21 years.
The court asked if the new prospective jurors knew anyone in law enforcement.
B.K. said her cousin’s partner was a retired deputy district attorney, a cousin was in the
public defender’s office, and a friend back east worked in the department of corrections.
B.K. added: “And with my job, I do come in contact with Riverside Police Department
very sporadically, . . .” B.K. said she worked as a registered nurse, currently as a director
of nursing, of a 120-bed psychiatric facility. “So quite frequently, we may have the
6
police department . . . at our facility.” B.K. said she believed neither her work nor
relationships would impact her ability to be fair. In response to the court inquiring
whether any of the prospective jurors had been a victim of the type of crimes charged in
the instant case or knew anyone who had, B.K. said her car was stolen 22 years ago but
she did not believe it would impact her ability to be fair.
Dorr asked B.K. what she would do if asked if defendant was guilty. B.K. said
she would say he was not guilty because he was innocent until proven otherwise, because
she had not heard any evidence. She agreed the evidence comes from witnesses
testifying on the witness stand, not from the judge or attorneys.
During questioning, the prosecutor discussed bias, including racial bias. The
prosecutor asked the prospective jurors if anyone felt racial bias might be an issue. The
prosecutor said to B.K. that she did not see B.K. “nod either way.” The prosecutor asked
B.K. if she had said she was a registered nurse in a psychiatric facility. B.K. said yes.
When asked if B.K. had ever had the opportunity to work with law enforcement, B.K.
said yes but “only when things get so out of control and we’re not able to handle it. The
kind of facility I work in, we don’t have certain things that other facilities may have to
contain.” The prosecutor asked B.K. if some officers handled situations better than
others. B.K. responded, “Absolutely.” When asked if B.K. could put her view of those
officers who did not handle situations well aside and evaluate the facts in the instant case,
B.K. said, “I can because I have to in my everyday world.” The prosecutor asked if B.K.
had any bias regarding law enforcement. B.K. said no.
7
After the court and counsel completed questioning the prospective jurors and
counsel passed on excusing the prospective jurors for cause, counsel alternated exercising
peremptory challenges. The prosecutor and the defense, acting jointly, each exercised
five peremptory challenges. The prosecutor then accepted the jury panel as constituted.
One of the five prospective jurors whom the prosecutor excused was E. P., a registered
nurse at Patton State Hospital. Defense jointly excused another prospective juror. The
prosecutor again accepted the panel. Defense jointly excused an additional prospective
juror, who was replaced by B.K. The trial court informed counsel that the People had
used 11 peremptory challenges and the defense had used 13. The prosecutor then
excused B.K.
A. Defendants’ Wheeler Motion
Out of the presence of the prospective jurors, Dorr made a Wheeler motion and
moved for a new trial. Dorr stated his client, Avila, was African-American and the
prosecutor dismissed all three African-American prospective jurors. The three jurors
dismissed were C.G., D.S., and B.K. (the three jurors). Dorr argued there was no valid
reason for the prosecutor dismissing them. Defendant’s attorney, Magdalena Cohen,
agreed and joined in the Wheeler motion. Cohen added that she understood why C.G.
was dismissed. He seemed like an “eager, young juror.” Cohen noted, however, C.G.
answered questions openly and honestly. Cohen stated she was surprised the prosecutor
dismissed B.K. Cohen acknowledged defendant was not African-American but believed
the prosecutor had systematically excluded African-American jurors.
8
The trial court confirmed no African-Americans had been accepted on the jury.
The prosecutor responded that Avila was likely African-American and Hispanic, based
on his last name, and there were several Hispanic jurors on the jury. The prosecutor
argued this showed she was not dismissing jurors based on their race.
The trial court found there was a prima facie showing of group bias. The court
requested the prosecution to provide race neutral reasons for excusing the three African-
American jurors. The prosecutor responded that she excused C.G. because he was over-
eager, answered questions not asked, and did not stay focused. She excused D.S. because
he was grumpy, he had a bad attitude, he would not make eye contact, and she felt she
could not connect with him. The prosecutor said she excused B.K. because she worked at
a psychiatric hospital as the director of the nurses and observed officers mistreat patients.
The prosecutor was also concerned B.K. would be sympathetic to defendant because of
his drug habit, which was why defendant committed the crimes.
The trial court denied defendants’ Wheeler motion. The court stated it disagreed
with the prosecutor’s explanation for excusing the three jurors but noted the standard is
subjective. Therefore, as long as the trial court believed the prosecutor’s stated reasons
for removing the jurors were sincere and the prosecutor was not discriminating against a
particular race, such as African Americans, the motion must be denied. The prosecutor
was only required to identify facially valid neutral reasons why she excused the three
prospective jurors. The court cited People v. Hall (1983) 35 Cal. 3d 161 (Hall), People v.
Silva (2001) 25 Cal. 4th 345 (Silva), and People v. Long (2010) 189 Cal. App. 4th 826.
The court stated that, as to C.G., the prosecutor’s reasons, of C.G. being young, a little
9
immature, and lacking life experience, were sufficient to justify his dismissal. As to D.S.,
the court stated he did appear to be “somewhat grumpy” but the court did not find there
was anything wrong with D.S. The court nevertheless concluded the prosecutor was
justified in excusing D.S. under the standard for removing jurors.
The trial court stated that removal of B.K. “is a bit of a stretch” but acknowledged
that the prosecutor’s justification, which was based on a subjective hunch that B.K.
would be sympathetic to defendant’s drug use, was proper. The court noted that the
prosecutor’s hunch was speculative that B.K. had a negative view of law enforcement,
based on the manner in which law enforcement treated psychiatric patients when
delivering them to the psychiatric hospital.
The court warned the prosecutor that if she dismissed another African American
from the jury there was a good chance the court would grant a Wheeler motion. The
court stated it was close to granting the instant motion but denied the motion. The
prosecutor responded that she had dismissed prospective juror, E.P., who was a Hispanic
male, for the same reason as B.K. E. P. worked at Patton as a registered nurse. The
prosecutor had a hunch nurses at psychiatric hospitals do not like law enforcement. The
prosecutor based this on her prior experience speaking with jurors in previous hung jury
cases. The court noted there was at least one more African American left in the venire.
B. Resumption of Voir Dire
After the trial court heard and denied defendants’ Wheeler motion, the court
resumed voir dire proceedings. The names of 13 additional prospective jurors were
10
called. The court and counsel questioned them as was done with the other prospective
jurors.
After a couple of jurors were excused for cause, the trial court noted defense had
used 13 peremptory challenges and the People had used 12. Defense jointly exercised an
additional peremptory challenge. The prosecution accepted the panel. Defense jointly
excused two more prospective jurors. Thereafter the parties all accepted the panel as
constituted. After jury selection was completed, the trial court stated that, because of the
Wheeler motion, it was important to note on the record that there were two African
American female jurors on the jury, against whom the prosecutor did not exercise
peremptory challenges.
III
WHEELER MOTION
Defendant contends the prosecutor discriminated by excusing three African
American jurors, C.G., D.S., and B.K., and the trial court erred in denying his Wheeler
motion. Defendant argues the race-neutral reasons the prosecutor gave for excusing the
three African American jurors were unsupported or contradicted by the record and were
implausible. This raised serious questions regarding the legitimacy of the prosecutor’s
reasons for excusing the jurors. Defendant also argues the trial court erred in failing to
make a sufficiently probing inquiry to determine whether the prosecutor’s explanations
for removing the jurors were justified or pretextual.
11
A. Applicable Law
A prosecutor’s use of peremptory challenges to strike prospective jurors because
of group bias (i.e., bias based on the juror’s membership in a racial, religious, ethnic or
similar group) violates a criminal defendant’s right to trial by a jury drawn from a
representative cross-section of the community under both the Fourteenth Amendment to
the United States Constitution and article I, section 16 of the California Constitution.
(People v. Bell (2007) 40 Cal. 4th 582, 596; People v. Chism (2014) 58 Cal. 4th 1266,
1313 (Chism).) Ruling on a Wheeler motion requires a three-part inquiry. First, the
defendant must make a prima facie case by showing that the totality of the circumstances
gives rise to an inference of discriminatory purpose. Second, if the defendant does so, the
burden shifts to the prosecution to adequately explain its peremptory challenges by
offering group bias-neutral justifications for the strikes. Third, if such an explanation has
been given, the trial court must decide whether the defendant has proven purposeful
discrimination. (Chism, at p. 1313.)
In making this decision, “the trial court must make a ‘sincere and reasoned attempt
to evaluate the prosecutor’s explanation’ to determine whether the proffered reasons are
bona fide.” (People v. Perez (1994) 29 Cal. App. 4th 1313, 1327 (Perez).) “Under
Wheeler, there is a presumption that a prosecutor uses his peremptory challenges in a
constitutional manner. [Citation.] . . . Under both Wheeler [citation] and Batson
[citation], the defendant need not be a member of the group in question in order to
complain.” (People v. Alvarez (1996) 14 Cal. 4th 155, 193.)
12
When reviewing the prosecutor’s showing, the trial court may consider “‘“how
reasonable, or how improbable, the explanations are; and . . . whether the proffered
rationale has some basis in accepted trial strategy.”’” (People v. Huggins (2006) 38
Cal. 4th 175, 233 (Huggins).) The prosecutor may justify the challenges by showing that
they were exercised “‘on grounds that were reasonably relevant to the particular case on
trial or its parties or witnesses – i.e., for reasons of specific bias,’” or by referring “‘to the
totality of the circumstances’”; for example, “‘demonstrat[ing] that in the course of . . .
voir dire he also challenged similarly situated members of the majority group on identical
or comparable grounds.’” (People v. Reynoso (2003) 31 Cal. 4th 903, 915 (Reynoso).)
The prosecutor’s justification need not rise to the level of a challenge for cause, and
“even a ‘trivial’ reason, [or a hunch,] if genuine and neutral, will suffice.” (People v.
Arias (1996) 13 Cal. 4th 92, 136.) For example, a trial court may credit a prosecutor’s
claim of a nondiscriminatory motive based on such matters as “‘the prospective jurors’
body language or manner of answering questions.’” (Reynoso, supra, 31 Cal.4th at p.
917.) “The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness
of the race-neutral reasons given for the peremptory challenge, not on the objective
reasonableness of those reasons.” (Id. at p. 924.) However, “‘implausible or fantastic
justifications may (and probably will) be found to be pretexts for purposeful
discrimination.’” (Id. at p. 916.)
“‘A reviewing court’s level of suspicion may also be raised by a series of very
weak explanations for a prosecutor’s peremptory challenges. The whole may be greater
than the sum of its parts. When a number of jurors are struck, “[a]n explanation for a
13
particular challenge need not necessarily be pigeon-holed as wholly acceptable or wholly
unacceptable. The relative plausibility or implausibility of each explanation for a
particular challenge . . . may strengthen or weaken the assessment of the prosecution’s
explanation as to other challenges and thereby assist the fact-finder in determining overall
intent.”’” (People v. Mills (2010) 48 Cal. 4th 158, 182, fn. 6.)
Because Wheeler motions call upon trial judges’ personal observations, we give
great deference to the trial court’s findings under the third step of this analysis (Batson,
supra, 476 U.S. at p. 98, fn. 1), and review the trial court’s evaluation of proffered
nondiscriminatory reasons for substantial evidence (People v. McDermott (2002) 28
Cal. 4th 946, 971). “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.” (People v. Burgener (2003) 29 Cal. 4th 833, 864.)
The fundamental inquiry is: “[i]s there substantial evidence to support the trial
court’s ruling that the prosecutor’s reasons for excusing prospective jurors were based on
proper grounds, and not because of the prospective jurors’ membership in a protected
group? If so, then defendant is not entitled to relief. In undertaking this inquiry, we note
that the question is not whether we as a reviewing court find the challenged prospective
jurors similarly situated, or not, to those who were accepted, but whether the record
shows that the party making the peremptory challenges honestly believed them not to be
similarly situated in legitimate respects.” (Huggins, supra, 38 Cal.4th at p. 233.)
Accordingly, we confine our inquiry to whether the prosecutor here honestly found
pertinent and legitimate reasons for excusing the three jurors. (Ibid.)
14
B. Credibility of the Prosecutor’s Race-Neutral Reasons
Defendant argues that, although the prosecutor satisfied stage two of the Wheeler
process by giving race-neutral reasons for excusing each of the three jurors, the stage
three requirement was not satisfied because the reasons given were not plausible and thus
were pretextual.
The proper focus in ruling on the validity of the prosecutor’s reasons is the
subjective genuineness of the nondiscriminatory reasons stated by the prosecutor, not
their objective reasonableness. (Reynoso, supra, 31 Cal.4th at p. 924; Chism, supra, 58
Cal.4th at p. 1317.) At the third stage of the Wheeler analysis, “‘“[T]he issue comes
down to whether the trial court finds the prosecutor’s race-neutral explanations to be
credible. Credibility can be measured by, among other factors, the prosecutor’s
demeanor; by how reasonable, or how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial strategy.”’ [Citation.] In
reviewing a trial court’s denial of a Batson/Wheeler motion, we examine ‘only whether
substantial evidence supports its conclusions.’ [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.]”’ [Citation.]” (Chism, supra, 58 Cal.4th at pp. 1314-1315.)
Great deference is given to the trial court’s findings because, “[w]ithout audio-
visual recordings of jury voir dire, appellate courts must review a prosecutor’s exercise of
15
peremptory challenges without all the behavioral information available to the trial court.
This institutional limitation is part of what underlies the deference traditionally accorded
the trial court, exemplified by the following comments of the California Supreme Court.
‘Since the trial court was in the best position to observe the prospective jurors’ demeanor
and the manner in which the prosecutor exercised his peremptory challenges, the implied
finding, that the prosecutor’s reasons for excusing [a prospective juror], including the
demeanor-based reason, were sincere and genuine, is entitled to “great deference” on
appeal.’ [Citation.]” (People v. Long (2010) 189 Cal. App. 4th 826, 845 (Long).)
However, doubt may undermine deference “when the trial judge makes a general,
global finding that the prosecutor’s stated reasons were all ‘legitimate,’ and at least one
of those reasons is demonstrably false within the limitations of the appellate record. A
trial court ‘should be suspicious when presented with reasons that are unsupported or
otherwise implausible.’ [Citation.] ‘Although an isolated mistake or misstatement that
the trial court recognizes as such is generally insufficient to demonstrate discriminatory
intent [citation], it is another matter altogether when, as here, the record of voir dire
provides no support for the prosecutor’s stated reasons for exercising a peremptory
challenge and the trial court has failed to probe the issue [citations].” (Long, supra, 189
Cal.App.4th at p. 845.) “When reasons are given for the exercise of challenges, an
advocate must ‘stand or fall on the plausibility of the reasons he gives.’ [Citation.] The
plausibility of those reasons will be reviewed, but not reweighed, in light of the entire
record. [Citation.]” (People v. Lenix (2008) 44 Cal. 4th 602, 621 (Lenix), citing Miller-El
v. Dretke (2005) 545 U.S. 231, 252, 265-266.)
16
Here, the record of voir dire provides support for the prosecutor’s stated reasons
for exercising the peremptory challenges against the three jurors, and the trial court
sufficiently probed those reasons. The trial court’s remarks indicated the court was
skeptical of the prosecutor’s reasons for exercising the peremptory challenges,
appropriately examined the facts as disclosed by the jurors’ voir dire responses, and
evaluated the credibility of the prosecutor’s race-neutral reasons. We conclude, as
discussed below, the trial court met its obligation to make a sincere and reasoned attempt
to evaluate the prosecutor’s nondiscriminatory justifications offered, and the trial court’s
findings are supported by substantial evidence. (Long, supra, 189 Cal.App.4th at p. 845;
Silva, supra, 25 Cal.4th at p. 385.)
1. C.G.
Defendant argues the trial court failed to consider whether the prosecutor’s
reasons given for excusing C.G. were genuine, as opposed to pretextual. Defendant
argues this is apparent because the prosecutor’s reasons for excusing C.G. were
contradicted by the record. The prosecutor stated she excused C.G. because he was
young, over-eager, and unfocused.
The prosecutor explained to the court that C.G. was 18 years old and appeared
over-eager answering questions. He provided information that was not requested, which
made Drake nervous. The court asked how C.G. was over-eager. Drake said C.G.
answered questions that were not asked. The court asked for an example. Drake stated,
“Does everyone want to know how old I am? I’m 18.” Drake added she did not like
C.G.’s answers. She thought he was too young. The court asked Drake how that
17
indicated C.G. would hold her to a higher standard. Drake responded that she was
required to prove several complicated elements and anticipated defense counsel would
raise numerous “red herrings,” things she did not “necessarily have to prove, to attempt to
mislead the jury into things they should focus on that are either irrelevant . . . or aren’t
elements of each crime. I don’t want a young, over-eager juror to take credence in those
things and to focus on things they don’t need to be focusing on. I want them to stay on
task. He appeared a little immature to me, young, and not focused on the questions that
were asked when I spoke with him.”
Although it is not apparent from the record that C.G. was over-eager and unable to
focus, these characteristics may be deduced based upon facial expressions and gestures,
which are not apparent from the record. (Lenix, supra, 44 Cal.4th at p. 613.) As our high
court noted in Lenix, “There is more to human communication than mere linguistic
content. On appellate review, a voir dire answer sits on a page of transcript. In the trial
court, however, advocates and trial judges watch and listen as the answer is delivered.
Myriad subtle nuances may shape it, including attitude, attention, interest, body language,
facial expression and eye contact. ‘Even an inflection in the voice can make a difference
in the meaning. The sentence, “She never said she missed him,” is susceptible of six
different meanings, depending on which word is emphasized.’ [Citation.] ‘[T]he manner
of the juror while testifying is oftentimes more indicative of the real character of his
opinion than his words. That is seen below, but cannot always be spread upon the
record.’ [Citation.]” (Lenix, supra, 44 Cal.4th at p. 622.)
18
Furthermore, even if there was insufficient evidence C.G. was unable to focus, “an
isolated mistake or misstatement that the trial court recognizes as such is generally
insufficient to demonstrate discriminatory intent.” (Silva, supra, 25 Cal.4th at p. 385; in
accord People v. Williams (1997) 16 Cal. 4th 153, 189.)
In addition, there was substantial evidence establishing that defendant was a very
young, inexperienced juror. C.G. stated he was 18 years old, single, in college, and had
never served on a jury. The prosecutor stated she was concerned that because of C.G.’s
youth, he might not understand complicated elements and be more easily misled by
irrelevant facts and argument. Avila’s attorney, Cohen, acknowledged during the
Wheeler motion hearing that she understood why the prosecution excused C.G.. Cohen
stated that C.G. seemed like an “eager, young juror.” Defendant’s attorney, Dorr, also
indicated C.G. appeared over-eager.
C.G.’s youth constituted a valid race-neutral reason for excluding a juror. The
California Supreme Court in People v. Sims (1993) 5 Cal. 4th 405, 430, found no Wheeler
violation when a prosecutor exercised peremptory challenges to two jurors because one
was a youthful college student and the other juror was very young and appeared
immature. (In accord Perez, supra, 29 Cal.App.4th at p. 1328 [“Limited life experience
is a race-neutral explanation.”]; People v. Henderson (1990) 225 Cal. App. 3d 1129, 1153
[young people do not constitute a cognizable class for Wheeler purposes]; see also People
v. Salcido (2008) 44 Cal. 4th 93, 143.)
The record does not support defendant’s contention the trial court failed to inquire
to determine whether the prosecutor’s reasons for excusing C.G. were genuine or
19
improperly motivated. It was quite apparent and undisputed C.G. was a young juror.
Furthermore, the trial court asked the prosecutor several follow-up questions, including
asking for specific examples to support the prosecutor’s conclusions. The court asked
how C.G. was over-eager. The prosecutor said C.G. answered questions that were not
asked. The court asked for an example. The prosecutor stated, “Does everyone want to
know how old I am? I’m 18.” The court asked the prosecutor how that indicated C.G.
would hold her to a higher standard. The prosecutor responded that she was required to
prove several complicated elements and anticipated defense counsel would raise
numerous “red herrings” in an attempt to mislead the jury into focusing on irrelevant
factors.
Giving deference to the trial court’s findings, as we must, we conclude the trial
court made a sincere and reasoned effort to evaluate the prosecutor’s nondiscriminatory
justifications for excusing C.G. We also conclude there was substantial evidence to
support the trial court’s finding that the prosecutor’s race-neutral reasons were credible
and genuine, and insufficient evidence of pretext. While the record does not show C.G.
lacked focus, this alone, is an insufficient basis for this court to reject the trial court’s
factual finding there were race-neutral reasons for excluding C.G. There other reasons
for removing C.G. supported by substantial evidence, and this court must give deference
to the trial court findings on credibility.
2. D.S.
The prosecutor stated she excused D.S. because he was “very disinterested. He
would sit there looking down. He wouldn’t make eye contact. He appeared in a bad
20
mood. He had a bad attitude when I spoke with him. That led me to wonder what -- . . .
issues, because I don’t know if he had an issue, what his problem was, . . . He concerned
me when Ms. Cohen asked him what are reasons that somebody may not take the stand
and his answer was ‘Misunderstood.’ And it just seemed like an odd answer to me,
something maybe in the back of his mind when he entered the courtroom. And when I
spoke with him, I just didn’t have a connection with him. I couldn’t get him to come out
of being grumpy. He just didn’t appear like he wanted to be here.”
The record shows there was substantial evidence that the prosecutor excused D.S.
based on the race-neutral demeanor-based justification, that D.S. was grumpy and
appeared to have a disinterested, bad attitude. The trial court acknowledged D.S.
appeared “somewhat grumpy.” Even though the court stated it did not find anything
wrong with D.S., the trial court appropriately focused on the subjective genuineness of
the prosecutor’s nondiscriminatory reason, rather than on its objective reasonableness
(Reynoso, supra, 31 Cal.4th at p. 924), and found that the prosecutor’s race-neutral
explanation was credible, sincere, and genuine. (Miller-El v. Cockrell (2003) 537 U.S.
322, 339.) “Since the trial court was in the best position to observe the prospective jurors
demeanor and the manner in which the prosecutor exercised his peremptory challenges,
the implied finding, that the prosecutor’s reasons for excusing [defendant], including the
demeanor-based reason, were sincere and genuine, is entitled to ‘great deference’ on
appeal. [Citations.] Nor have we found anything in the record to directly contradict the
trial court’s express findings to that effect.” (Reynoso, supra, 31 Cal.4th at p. 926.)
21
Defendant argues the record contradicts the prosecutor’s explanation that when
she spoke to D.S., he had a bad attitude, he was grumpy, and D.S. had no connection with
him. Defendant asserts the prosecutor’s statement that she spoke to D.S. was untrue.
The prosecutor never asked D.S. any questions or spoke to D.S. during voir dire.
However, although the prosecutor did not question D.S. individually, she did question
him while asking the jury panel questions as a whole. She likely would have been able to
get a sense of D.S.’s demeanor while she was questioning the prospective jurors as a
group, as well as from the court and defense counsels’ questioning of the jurors.
Defendant further argues that D.S.’s response that a defendant might not want to
testify because he would be “misunderstood,” was not an odd response. But even if it
could be construed as reasonable, the prosecutor explained why she thought the response
was an odd answer. She indicated she had a hunch the response related to something in
the back of D.S.’s mind, she was concerned he seemed grumpy, she did not have a
connection with him, and D.S. seemed as if he did not to want to be there. The
prosecutor’s explanation was sufficient to support the trial court’s finding that the
prosecutor’s reasons for removing D.S. were genuine and credible. Further questioning
by the court was not required. A peremptory challenge may be based on a hunch.
(Chism, supra, 58 Cal.4th at p. 1316; People v. Johnson (1989) 47 Cal. 3d 1194, 1218.)
An arbitrary exclusion is permissible, “‘so long as the reasons are not based on
impermissible group bias’ [citation]. The basis for a challenge may range from ‘the
virtually certain to the highly speculative’ [citation] and ‘even a “trivial” reason, if
genuine and neutral, will suffice.’ [Citation.]” (Chism, at p. 1316.)
22
Defendant argues the trial court stated it disagreed with the prosecutor’s
explanation for excusing the three jurors yet accepted them anyway, without inquiring
further regarding the prosecutor’s unsupported and implausible reasons. Although the
trial court did not ask probing questions of D.S., the court stated it did observe that D.S.
was “somewhat grumpy,” and the prosecutor explained in sufficient detail why she was
uncomfortable with leaving D.S. on the jury. The trial court was not required to inquire
further. The prosecutor’s reasons for excusing D.S. were plausible. There was thus
substantial evidence supporting the trial court’s determination that the prosecutor’s
reasons were sincere and genuine, rather than pretextual. This court must therefore give
the trial court’s findings deference, since the trial court was in a better position than this
court to observe and evaluate D.S. and the prosecutor. (Long, supra, 189 Cal.App.4th at
p. 845; Lenix, supra, 44 Cal.4th at p. 614.)
The trial court noted it did not objectively see anything wrong with D.S. as a juror,
under the applicable Batson/Wheeler standard, the trial court found the prosecutor’s
removal of D.S. justified. The trial court stated, “I don’t even agree with the standard,
but again, I’m not here to make law from the bench. I think actually Justice Liu on the
California Supreme Court is very critical of the standard. You may see that standard
change at some point in time, but as of right now, it would appear as though Ms. Drake
[the prosecutor] justified the excusing of Mr. D.S.” Giving deference, as we must, to the
trial court’s finding that the prosecutor’s race-neutral reasons for removing D.S. were
genuine and sincere, and there being no direct contradictory evidence showing bias, we
23
conclude defendant has not established a Batson/Wheeler violation as to D.S.’s removal
from the jury.
B.K.
Defendants made their Wheeler motion after the prosecutor excused B.K.
Defendant argues on appeal that the record shows the prosecutor’s justifications for
excusing B.K. were pretextual because (1) there was evidence B.K. was not actually
biased against law enforcement, (2) the prosecutor demonstrated disparate treatment by
not dismissing an alternate juror with a similar psychiatric employment background to
that of B.K., and (3) jurors’ biases against law enforcement and defendant’s drug history
were irrelevant to defendant’s case.
When the trial court asked the prosecutor to state her race-neutral reasons for
excusing B.K., the prosecutor stated that her primary concern was that B.K. worked as
the director of nurses at a psychiatric hospital. The prosecutor explained: “She’s stated
she was an RN, which is fine. We have other RNs or pharmacists on the jury. My
concern is that she works at a psychiatric hospital. I think psychiatric hospitals in my
limited experience – my brother is actually an EMT and works at psychiatric hospitals.
My concern with that is law enforcement does come in there on a somewhat regular basis
and sometimes they’re not – the patients are not always treated with the utmost light
hands or a lot of times the staff doesn’t understand kind of what is going on and they take
offense to how people are treated.” Dorr acknowledged that the prosecutor seemed to be
concerned B.K. might have “bias against the police because they’re using too much force
wherever she works.” The prosecutor also stated she was concerned that B.K. would be
24
sympathetic to defendant because there was the possibility defendant’s mother would
testify that defendant had a history of abusing drugs and B.K. might dismiss defendant’s
actions and culpability because of his drug habit, which was why he committed the
charged crimes.
Although the trial court found that removal of B.K. was “a bit of a stretch,” the
court acknowledged that the prosecutor’s race-neutral justification, which was based on a
subjective hunch that B.K. would be sympathetic to defendant’s drug use, if put in issue,
was proper. The court further noted that the prosecutor’s hunch was speculative that
B.K. had a negative view of law enforcement because of how law enforcement treated
psychiatric patients when law enforcement brought patients in. The prosecutor noted that
she had dismissed another prospective juror, E.P., who was a Hispanic male, for the same
reason as B.K. .E P. worked at Patton as a registered nurse. The prosecutor said she had
a hunch nurses at psychiatric hospitals did not like law enforcement, and her hunch was
based on her experience speaking with jurors in previous hung jury cases.
A juror’s occupation can be a permissible, nondiscriminatory reason for exercising
a peremptory challenge. (Chism, supra, 58 Cal.4th at p. 1316; People v. Trevino (1997)
55 Cal. App. 4th 396, 411; People v. Landry (1996) 49 Cal. App. 4th 785, 790-791; People
v. Perez (1996) 48 Cal. App. 4th 1310, 1315; People v. Barber (1988) 200 Cal. App. 3d
378, 394.) As in the instant case, “a prosecutor ‘can challenge a potential juror whose
occupation, in the prosecutor’s subjective estimation, would not render him or her the
best type of juror to sit on the case for which the jury is being selected.’ [Citation.]”
(Chism, supra, 58 Cal.4th at p. 1317.) In addition, negative experiences with law
25
enforcement constitute a valid race-neutral reason for the prosecution exercising a
peremptory challenge. (People v. Turner (1994) 8 Cal. 4th 137, 171, overruled on
different grounds in People v. Griffin (2004) 33 Cal. 4th 536, 555, fn. 5.) A peremptory
challenge may also be based on a hunch. (Chism, at p. 1316; People v. Johnson, supra,
47 Cal.3d at p. 1218.) Even an arbitrary exclusion is permissible, “‘so long as the reasons
are not based on impermissible group bias’ [citation]. The basis for a challenge may
range from ‘the virtually certain to the highly speculative’ [citation] and ‘even a “trivial”
reason, if genuine and neutral, will suffice.’ [Citation.]” (Chism, at p. 1316.) As long as
a peremptory challenge is exercised in a nondiscriminatory manner, it may be based on
speculation. (Ibid.)
Here, the prosecutor stated she believed B.K.’s employment as director of the
nurses at a psychiatric hospital would render B.K. not the best type of juror to sit on the
case. The prosecutor explained why she believed this. The trial court found that the
prosecutor’s race-neutral explanation was sincere and genuine, and not racially
motivated. (Chism, supra, 58 Cal.4th at p. 1316.) The record supports this finding.
Defendant argues it is apparent the prosecutor’s reasons for dismissing B.K. were
pretextual because the prosecutor did not dismiss an alternate juror, referred to as TAJ2,
who was employed as a psychologist for the public school system, and who had
previously worked in neuropsychology hospital settings. TAJ2 differed from B.K.,
however, in that he was a psychologist, not a nurse, and he did not state he had direct
contact with law enforcement, personally or professionally. In addition, he currently was
working for the school district, rather than at a hospital, and was selected as an alternate
26
juror.
Defendant argues that the prosecutor’s concern regarding juror bias against law
enforcement was unfounded because such bias was irrelevant to defendant’s case. Even
though officer testimony may not have been crucial to proving defendant’s criminal
charges, three law enforcement witnesses were listed as trial witnesses and voir dire
questioning by the court and counsel included questions concerning law enforcement. At
trial, a law enforcement officer testified regarding locating Reyes’s car after the incident
and as to statements made by defendant to police the day after the incident. Possible bias
against law enforcement was a relevant, valid race-neutral justification. We conclude
there was substantial evidence in the record supporting the trial court’s finding that the
prosecutor’s reasons for excusing B.K. were genuine and sincere.
C. Probing Questioning by the Trial Court
Defendant asserts the trial court failed in its duty to inquire and evaluate the
legitimacy of the prosecutor’s race-neutral explanations for excusing the three
prospective jurors, by determining whether valid reasons existed that “‘actually prompted
the prosecutor’s exercise of the particular peremptory challenge.’” (People v. Salcido,
supra, 44 Cal.4th at pp. 143-144; People v. Fuentes (1991) 54 Cal. 3d 707, 720.) We
disagree. The trial court asked clarifying questions when appropriate. The trial court was
not required to “cross-examine” the prosecutor to determine the veracity of her
explanations. By personally observing the prosecutor’s demeanor in providing her
explanations, the trial court presumably weighed the prosecutor’s veracity and
determined whether her explanations were legitimate, race-neutral reasons for excusing
27
the three jurors. Further questioning of a reason is only required where the explanation is
implausible or suggests bias. (Silva, supra, 25 Cal.4th at p. 386; Hall, supra, 35 Cal.3d at
pp. 168-169.)
Here, the prosecutor’s reasons were plausible and did not suggest bias. Applying
the appropriate deferential standard of review, we conclude that the prosecutor’s race-
neutral reasons were sufficiently plausible, there is substantial evidence supporting those
reasons, and there is insufficient evidence in the record to support a determination that
the three jurors were removed based on race. The record shows that the trial court
properly made a sincere and reasoned evaluation of the prosecutor’s reasons for
exercising her peremptory challenges, sufficiently questioned the prosecutor regarding
her reasons for exercising her peremptory challenges, and appropriately denied
defendants’ Wheeler motion.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
28