Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Super. Ct. No. BA241912 of Los Angeles Lance A. Ito, Judge
Eric R. Laurson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Anthony David Aguilar appeals a judgment following his conviction of conspiracy to commit a crime (Pen. Code, § 182, count one), murder (§ 187, subd. (a), count two), possession of a firearm by a felon (§ 12021, subd. (a)(1) counts three and four), with findings that he committed counts one and two for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and personally used a firearm causing great bodily injury (§ 12022.53, subd. (d)). We conclude the trial court properly denied Aguilar's Wheeler/Batson motion. (Batson v. Kentucky (1986) 476 U.S. 79l; People v. Wheeler (1978) 22 Cal.3d 58.) We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
Dante Reyes was a member of the Cypress Park gang. Aguilar was a member of the Avenues, a criminal street gang. The two gangs are "deadly" rivals. The Avenues had a history of using "drive by" and "walk up shootings" against rival gang members.
Reyes was home when two men came to his residence and yelled "Dante." Reyes went outside and asked," who is it?" The two men argued with Reyes. One of them aimed a handgun at Reyes and started shooting. Several shots were fired. Reyes was hit and subsequently died from multiple gunshot wounds.
The two assailants fled. One of them had been wounded and left a trail of blood at the scene. The police took swabs of the blood. It matched Aguilar's DNA profile. Police also found a .38-caliber revolver 25 feet from Reyes's body. Police detective Larry Burcher testified it was unlikely that Reyes could have used that gun because it was too far away. A .38-caliber bullet found at the scene was fired from that gun. The police also found expended 9-millimeter bullet casings.
A few minutes after the shooting police responded to another 911 call at a residence 1.7 miles away. There was a blood trail leading into that home and Aguilar was inside bleeding. At the hospital Aguilar told police that three African-American men shot him and the shooting did not occur at Reyes's house. He subsequently admitted that he lied and was at Reyes's house when the shooting took place. He said he walked near the residence, heard a "loud commotion," and saw two men near Reyes's home, but he could not describe them because it was dark. He heard several gun shots and one of the rounds hit him in the arm. He did not shoot Reyes and did not "really mess around with guns."
Police searched one of Aguilar's residences and found "a box of random .38-caliber ammunition. Some of the ammunition in that box was made by the same manufacturer which produced the live round which was in the gun found at the crime scene.
Questioning Prospective Jurors and the Prosecution's Peremptory Challenges
Juror No. 3900 was single, 19 years old and lived with his parents. He gave short and abrupt responses to the court's questions. The trial judge was concerned by this juror's dismissive attitude toward the proceedings.
Juror No. 5253 was a student and a crime victim who had been "hit up" by gang members. He was familiar with the Avenues and Cypress Park gangs and went to school with some of their members. He felt uncomfortable because the case involved the gangs in his neighborhood.
Juror No. 884 said she was six months pregnant. The prosecutor asked her, "This is a serious case. It's stressful to make decisions. Is that something that's been on your mind as you sit here, that maybe this isn't the best time to be on a murder case? She responded, "Probably."
Juror No. 6974 said, "I had neighbors that were gang members . . . had brothers in gangs . . . some of my friends were involved in gang activity . . . ." In his earlier years her second husband had been involved in gang activity. She said, "it didn't give me a negative opinion about him . . . since I grew up in East L.A. . . . when you grow up in that kind of neighborhood . . . it seems normal."
Juror No. 0024 testified, "I've got a lot of gang member friends . . . I kind of was taken back when the previous person said if you grow up in it, it is normal. It's not. You have a choice." The court asked, "have you heard anything about the two gangs we talked about? He responded, "I know where they're at." Juror No. 0024 said, "I have family members who have been in gangs. I have friends." The prosecutor asked, "Are you still friendly with them now?" He responded, "It's my family."
The prosecutor exercised peremptory challenges to jurors Nos. 3900, 5253, 6974, 884 and 0024.
Juror No. 2893 said, "my nephew . . . is a gang member." The defense counsel asked her, "have you been around people, friends of yours who were gang members? She responded, "Oh, no." She did not like the fact that her nephew was a gang member and said, "he wasn't raised like that."
The Wheeler/Batson Motion
Aguilar's trial counsel said the prosecutor had peremptorily challenged five Hispanic prospective jurors, Nos. 0024, 6974, 884, 3900 and 5253, to achieve a "systematic elimination of . . . everyone who is Latino."
The trial court ruled that Juror No. 3900 was properly excused because he did not take the proceeding seriously and the challenge to Juror No. 5253 was proper because he felt he might be subject to gang retaliation. It found that the defense, however, had made a prima facie showing as to Jurors Nos. 0024, 884 and 6974. It required the prosecution to explain why it had challenged them.
The prosecutor said that Juror No. 0024's "answers were almost too good . . . I had to drag out of him the fact that his family members were actually still in gangs. And despite his very strong protest that he believes everyone has a choice, I asked him, well, do you still associate with those people who have made a choice to be in the gangs? And he said, 'Yes, they are my family, and under that circumstance . . . I could not take the risk that in fact those answers seemed to want to make him get on the jury, yet his choice is to continue to associate with gang members.'"
As to Juror No. 884 he said, "I liked her, but as a courtesy, excused her because she was pregnant and for no other reason based on her concerns, not because she was a female pregnant, but because she was concerned about it, and I didn't want to increase her stress level." The prosecutor said Juror No. 6974 "made a choice as an adult to marry a person who was a gang member, and seemed to have no problem with that. That was the reason for excusing her."
The trial court found the prosecution's peremptory challenges were not motivated by group bias. It noted that Juror No. 0024 testified that "family members of his were gang members and he still associates with them . . . that is an appropriate basis for a prosecutor to exercise a peremptory challenge . . . ." It said Juror No. 884 testified "she was physically uncomfortable sitting on a case like this, given her sixth month of pregnancy." "As to Juror No. 6974, the fact that she would marry a former gang member and didn't hold that against him . . . would cause me as a prosecutor to believe that she might have sympathies towards them and be forgiving of their excesses . . . ."
DISCUSSION
I. The Wheeler/Batson Motion
Aguilar contends the prosecutor exercised peremptory challenges to remove the Hispanics from the jury and the trial court erred by not granting his Wheeler/Batson motion. We disagree.
"Under Wheeler and Batson, if a party believes his opponent is improperly using peremptory challenges for a discriminatory purpose, he must raise a timely challenge and make a prima facie case of such discrimination. Once a prima facie case has been shown, the burden shifts to the other party to come forward with an explanation that demonstrates a neutral explanation related to the particular case . . . ." (People v. Johnson (1989) 47 Cal.3d 1194, 1216.)
The prosecutor must articulate valid non-discriminatory reasons for the peremptory challenges. He or she may not rely on "sham excuses belatedly contrived to avoid admitting acts of group discrimination." (People v. Barber (1988) 200 Cal.App.3d 378, 396.) A trial court's findings are entitled to deference where it has made a "sincere and reasoned effort" to evaluate the nondiscriminatory justifications for excusing the jurors. (People v. Huggins (2006) 38 Cal.4th 175, 227.) "It is presumed that the prosecutor uses peremptory challenges in a constitutional manner." (People v. Lewis (2006) 39 Cal.4th 970, 1009.)
A. Prospective Juror No. 0024
Aguilar claims Juror No. 0024 was improperly challenged by the prosecutor because of his Hispanic ethnicity. But the trial court's finding that there were valid nondiscriminatory reasons for the peremptory challenge is supported by the record. This case involved gang allegations. Juror No. 0024 said he had "gang member friends." He also had relatives who were gang members. He said he continued to associate with them because "it's my family." Prosecutors may peremptorily challenge prospective jurors they believe to be biased for the defense. (People v. Lewis, supra, 39 Cal.4th at p. 1011.) The court did not err given this juror's close and current family connection to gang members. (People v. Reynoso (2003) 31 Cal.4th 903, 925-926.)
Aguilar claims the prosecution's justifications for challenging this juror are shams because prospective Juror No. 2893, who was not Hispanic and served on the jury, had similar responses. But these comparisons were not raised by the defense at trial. "[T]he California Supreme Court has not mandated that a comparative juror analysis be performed for the first time on appeal." (People v. Jordan (2006) 146 Cal.App.4th 232, 250.)
But even so, there are substantial differences between the testimony of these two jurors. Juror No. 2893 said her nephew is a gang member. But she also said she did not associate with gang members and none of her friends belonged to gangs. By contrast, prospective Juror No. 0024 said he knew where the two gangs involved in this case were located, and he said, "I've got a lot of gang member friends."
B. Prospective Juror No. 6974
Aguilar contends Juror No. 6974 was improperly excluded. We disagree. The trial court reasonably found she had "sympathies" towards gang members which were unfavorable to the prosecution. Her neighbors, close friends and brothers were in gangs and her former husband once belonged to one. She said she did not have "a negative opinion" about her former husband's involvement with gang activity. She felt such activity "seems normal." Given her associations with gang members and her attitude about gang activities, the trial court reasonably found the peremptory challenge was proper. (People v. Reynoso, supra, 31 Cal.4th at pp. 925-926.)
Aguilar claims it was irrational for the prosecution to seat Juror No. 2893, who had a relative in a gang, but not prospective Juror No. 6974. He views the two to be comparable. But their attitudes about gangs were different. Juror No. 2893 never claimed that gang activity is normal. She was worried about her nephew because of his gang membership. She did not like the fact that he was in a gang and felt gang activity was inconsistent with the way his family had raised him.
C. Prospective Juror No. 884
As to Juror No. 884, Aguilar argues the prosecution used a peremptory challenge because she was Hispanic. But the prosecutor's stated justification was "facially race-neutral." (People v. Sims (1993) 5 Cal.4th 405, 430.) Aguilar claims the reason given, discomfort due to her pregnancy, was a pretext to hide the prosecution's group bias. But he has not shown evidence of a discriminatory motive. This was not a case where racial differences would be highlighted because here the defendant and the victim were of the same ethnicity. (People v. Reynoso, supra, 31 Cal.4th at p. 926, fn.7.) This undermines the claim that the prosecution would be inclined to believe "that Hispanic jurors would tend to be biased in favor of . . . the Hispanic [defendant]," rather than the Hispanic victim. (Ibid.) Moreover, here the prosecution denied it had a discriminatory motive and noted that it had accepted an Hispanic juror.
Aguilar contends that the prosecution's claim that it excluded a juror because of her pregnancy is a sham. But he has not shown that this prosecutor's justifications were "inherently implausible" or "contradicted by anything in the record." (People v. Reynoso, supra, 31 Cal.4th at p. 926.) "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.) A "prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion" or a hunch. (People v. Pinholster (1992) 1 Cal.4th 865, 914.) "All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being non-discriminatory." (Reynoso, supra, at p. 924.)
Here the trial court noted that this juror said "she was physically uncomfortable sitting on a case like this, given her sixth month of pregnancy." A concern about such a condition is neither trivial nor insubstantial. "Pregnancy in its last stages, without complications, and at any stage with complications, may render a woman . . . unavailable for work . . . ." (Gunn v. California Employment Development Department (1979) 94 Cal.App.3d 658, 663.) The trial court could reasonably infer that the prosecution did not want a juror who might be distracted because of stress, or might have to be replaced because of pregnancy symptoms or complications. (See, e.g., State v. Nobles (1999) 350 N.C. 483, 513 [515 S.E.2d 885, 903].)
Aguilar argues that the prosecutor's claim that he excused the pregnant juror as a "courtesy," is a "pretext" because he did not extend the same treatment to prospective Juror No. 2220, who was not Hispanic. But there was a substantial difference between these jurors. One had a verifiable physical condition which would impact her jury service. (Gunn v. California Employment Development Department, supra, 94 Cal.App.3d at p. 663; see also State v. Nobles, supra, 515 S.E.2d 885, 903.) The other (Juror No. 2220) claimed to be tired of serving on juries, a common complaint by prospective jurors. The court could reasonably infer that it was consistent for the prosecution to be concerned about the stress to a juror with a late term pregnancy, but to have a different reaction to those who want to avoid repeated jury service.
Moreover, prospective Juror No. 2220 did not serve on the jury. She was excused after the defense made a peremptory challenge. "When our Supreme Court has engaged in comparative juror analysis, the relevant inquiry has been centered on the responses of the challenged jurors and the seated jurors." (People v. Jordan, supra, 146 Cal.App.4th at p. 250.)
D. Other Peremptory Challenges
Aguilar notes that the prosecution peremptorily challenged two other Hispanic jurors, Nos. 3900 and 5253. But the court noted that Juror No. 3900 had a "lackadaisical" attitude about jury duty. The trial judge said that if the prosecution had not challenged him, "I would have bounced him just because he wasn't taking" the proceedings seriously. The court found that excusing Juror No. 5253 was proper because of his fear of gang retaliation. The court said, "he had close connections with all these people . . . . He didn't feel comfortable here."
Moreover, the court found the prosecutor to be credible. It saw all of the questioning of the prospective jurors. It viewed the prosecutor's demeanor when giving explanations. That is something which is not in the record. "[T]he trial court is in the best position to determine from 'all the circumstances,' both those which appear in the record and those which do not, whether a party is using its peremptory challenges improperly." (People v. Trevino (1997) 55 Cal.App.4th 396, 410.) Because of this we give appropriate deference to its rulings where, as here, it has made a sincere effort to evaluate the prosecutor's explanations. (People v. Reynoso, supra, 31 Cal.4th at p. 926.) From this record, Aguilar has "failed to sustain [his] burden of showing 'from all the circumstances of the case' . . . a strong likelihood that the peremptory challenges in question were exercised on improper grounds of group bias . . . ." (Id., at p. 924.)
We have reviewed Aguilar's remaining contentions and conclude they are without merit.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.