Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. PA062890 Burt Pines, Judge.
Syda Kosofsky, 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, Mary Sanchez and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Appellant John Dennis Bryant appeals his conviction for one count of grand theft of personal property (Pen. Code, § 487, subd. (a)). On appeal, Bryant contends that the prosecution improperly exercised its peremptory challenges to excuse an African-American prospective juror in violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Bryant also claims that he is entitled to additional days of presentence custody credit pursuant to the recent amendments to section 4019. We conclude that Bryant’s sentence must be modified to correct his presentence custody credit, but otherwise affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Evidence at Trial
All About Beauty is a cosmetics marketing and manufacturing company located in a two-story building in Los Angeles. At 11:00 a.m. on September 17, 2008, German Morales, the warehouse manager, saw a person leaving the building near a staircase that led to the second-floor secretarial offices. He thought the person’s presence was unusual because visitors typically had appointments. Morales followed the person outside. Once outside, Morales saw Bryant walking nearby wearing a backpack. He asked Bryant why he was there and Bryant answered that he was looking for plumbing work.
Morales immediately went back inside the building and walked upstairs to the secretarial offices. He discovered that a laptop computer was missing from one of the desks. No one else was present in the office area at the time. Morales went downstairs and asked his wife, Esmeralda Mancia, a co-owner of the company, if she had taken the computer. When Mancia responded that she had not, Morales ran outside to find Bryant. Morales saw Bryant walking away from the building and ordered him to stop. Bryant began to run as soon as he saw Morales.
As Morales chased Bryant on foot, he saw Bryant take the computer out of his backpack and throw it on the ground. Morales’ brother, who also worked for the company, joined in the chase, and the two men were able to apprehend Bryant a few blocks from the building. Bryant told the men that he did not want to go to jail. Once the police arrived, Bryant was arrested and taken into custody. An invoice showed that All About Beauty had purchased the laptop computer for $1,158.
II. Verdict and Sentencing
Following a four-day trial, the jury found Bryant guilty of one count of grand theft of personal property pursuant to section 487, subdivision (a). In a bifurcated proceeding, Bryant admitted to serving six prior prison terms, as alleged by the prosecution pursuant to section 667.5, subdivision (b). On February 5, 2009, the trial court sentenced Bryant to state prison for a total term of seven years. At the sentencing hearing, the court awarded Bryant 212 days of presentence custody credit, consisting of 142 days of actual custody credit and 70 days of conduct credit. On February 5, 2009, Bryant filed a timely notice of appeal.
On February 22, 2010, while this appeal was pending, Bryant brought a motion in the trial court to recalculate his presentence custody credit based on the recent amendments to section 4019. The trial court denied the motion on the ground that it lacked jurisdiction to modify the judgment during the pendency of the appeal.
DISCUSSION
On appeal, Bryant argues that the prosecution improperly exercised a peremptory challenge to exclude the sole African-American juror in the venire in violation of Bryant’s constitutional rights. Bryant also asserts that his presentence custody credit must be corrected based on the retroactive application of the recent amendments to section 4019.
I. Peremptory Challenge
a. Relevant Proceedings
On January 4, 2008, a panel of 18 prospective jurors was seated in the jury box for voir dire. Prior to the start of jury selection, defense counsel objected to the pool of prospective jurors on the ground that there were no African-Americans in the venire. The trial court overruled the objection, finding no evidence of systematic exclusion of any group. Following voir dire, one prospective juror was excused for cause and each side exercised three peremptory challenges. Seven more prospective jurors were then seated for voir dire, including Juror No. 8965.
Juror No. 8965 was a single woman with no children. She resided in Sylmar, worked in retail, and attended school for medical billing. She had several family members and a friend in law enforcement. She stated that her family’s car was stolen six or seven years ago and the thief was never apprehended. When the court asked whether that incident would prevent her from being fair and impartial, she answered, “I don’t think so.” Later, the prosecutor asked Juror No. 8965 if she would hold the fact that the thief in her case was never caught against the testifying officers in this case. The juror again answered, “I don’t think so.”
Following voir dire of the new prospective jurors, including Juror No. 8965, the defense exercised two peremptory challenges and the prosecution exercised one such challenge. Juror No. 8965 was moved from the 18th seat to the 13th seat in the jury box. More prospective jurors were seated and voir dire continued. During a sidebar discussion, the trial court commented to defense counsel that Juror No. 8965 “appears to have African-American features.” Defense counsel responded that he thought she might be Hispanic. The court then said, “It’s very difficult in our culture these days with all of the mixed blood people have to be sure. I would point out there is a lots [sic] of diversity among this jury panel in terms of Asians, Latinos, darker skin people; but I just had a question about this one juror since [defense counsel] made this statement there were no African-Americans there.”
Jury selection continued on the next court date. Following voir dire of the new prospective jurors, the prosecutor exercised a peremptory challenge to excuse Juror No. 8965. Defense counsel immediately made a Wheeler motion, and asked the court to inquire whether Juror No. 8965 was in fact African-American. The court declined to question the juror about her race and reiterated that it merely had thought she could be African-American. Defense counsel argued that the prosecutor had challenged Juror No. 8965 simply because she appeared to be Black. Counsel reasoned the juror was excused only after the court remarked that she might be African-American, and that she seemed to be an “ideal prosecution juror” given that she had several family members in law enforcement.
The trial court noted for the record that Juror No. 8965 “was a light-skinned woman and she may or may not have African-American blood in her.” The court then asked the prosecutor whether she thought the juror was African-American. The prosecutor answered, “Absolutely not, Your Honor. [¶] In fact, I would agree with [defense counsel’s] own observation that the lady appears to be Hispanic.” The prosecutor also contended that the motion was disingenuous given defense counsel’s previously articulated belief that the juror was not African-American.
The trial court found that defense counsel had failed to demonstrate a prima facie case of discrimination. The court nevertheless asked the prosecutor to explain her reasons for excusing Juror No. 8965 because it was “important for the record.” The prosecutor stated that she did not like the juror’s “heavy make-up, ” “low-cut shirt, ” and “open toe shoes.” She also noted that the juror had “folded arms, ” and she did not like the juror’s “body language toward [her].” In addition, the prosecutor asserted, “Yesterday I asked her if she had some items stolen. She did not get it back. [¶] When I asked her if she would hold that against the police officers, she said she hoped she wouldn’t; and that stayed in my mind that somebody that -- I mean either you would or you don’t. [¶] You hope you don’t is not a clear-cut answer, and it did not sit well with me.” The prosecutor reiterated that she was not certain about the juror’s race, but stated that the juror “certainly does not appear to be African-American to me.”
After hearing the argument of counsel, the trial court denied the Wheeler motion. The court repeated its prior finding that defense counsel had failed to make a prima facie showing of race discrimination. The court stated that it was also satisfied that the prosecutor had permissible race-neutral reasons the challenge, and that it found the prosecutor’s proffered reasons to be “credible, sincere and legitimate.”
b. Applicable Law
Bryant first challenges the trial court’s denial of his Wheeler motion. It is well-established that the exercise of peremptory challenges to remove prospective jurors on the sole ground of group bias violates both the California and the United States Constitutions. (People v. Ward (2005) 36 Cal.4th 186, 200, citing Wheeler, supra, 22 Cal.3d at pp. 276-277 and Batson v. Kentucky (1986) 476 U.S. 79, 89.) “When a defendant moves at trial to challenge the prosecution’s use of peremptory strikes, the following procedures and standards apply. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citations.]” (People v. Lewis (2008) 43 Cal.4th 415, 469.)
To state a prima facie case of discrimination, the defendant must (1) raise the issue in a timely fashion, (2) make as complete a record as feasible, (3) establish that the persons excluded are members of a cognizable class, and (4) produce evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (People v. Gray (2005) 37 Cal.4th 168, 186.) “‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.”’ [Citation.]” (Ibid.) “When a trial court denies a Wheeler motion because it finds no prima facie case of group bias was established, the reviewing court considers the entire record of voir dire. [Citation.]” (People v. Davenport (1995) 11 Cal.4th 1171, 1200.) “‘If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’ [Citations.]” (Ibid.)
Once a defendant has established a prima facie case, the burden shifts to the prosecutor to provide group-neutral reasons for each challenge. The prosecutor “need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) “‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ [Citations.]’” (People v. Lenix (2008) 44 Cal.4th 602, 613-614, fn. omitted.) The trial court’s ruling on a Wheeler motion is thus reviewed “deferentially, considering only whether substantial evidence supports its conclusions.” (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
On the record before us, we agree with the trial court that Bryant failed to demonstrate a prima facie case of race discrimination. In making his Wheeler motion, defense counsel argued that the prosecutor’s challenge to Juror No. 8965 supported an inference of discriminatory intent because the juror was the only person in the venire who appeared to be African-American, as is Bryant. It is true, as Bryant asserts, that a prima facie showing of group bias does not depend on the number of prospective jurors challenged (People v. Moss (1986) 188 Cal.App.3d 268, 277), as “[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.) However, the requisite showing is not made merely by establishing that the excluded juror was a member of a cognizable group. (People v. Bonilla, supra, 41 Cal.4th at p. 343; People v. Howard (2008) 42 Cal.4th 1000, 1018; People v. Bell (2007) 40 Cal.4th 582, 598.) In People v. Bonilla, for instance, the prosecutor struck the only two African-Americans in a 78-person jury pool. (People v. Bonilla, supra, at p. 342.) The California Supreme Court concluded that “‘the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.’” (Id. at p. 343.) As the Court explained, “‘“the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’ [Citations.]” (Ibid., fn. omitted; see also People v. Howard, supra, at p. 1018, fn. 10 [“The challenge of one or two jurors, standing alone, can rarely suggest a pattern of impermissible exclusion.”]; People v. Bell, supra, at p. 598, fn. 3 [“Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, ... to make a prima facie case after the excusal of only one or two members of a group is very difficult.”].)
Bryant contends that his prima facie showing was based on several relevant factors and not merely on the race of the challenged juror. He claims that a discriminatory intent also could be inferred from the fact that the prosecutor asked Juror No. 8965 only one question in voir dire and accepted a panel comprised of primarily Hispanic jurors, who were the ethnicity of the victims in this case. We disagree, however, that those facts established a prima facie case. There is no requirement that a prosecutor ask a prospective juror a minimum number of questions before deciding whether to accept or excuse the juror. Nor is there any requirement that the prosecutor exercise a peremptory challenge solely on the basis of the verbal responses elicited in voir dire. As our Supreme Court has recognized, “[a] prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 613.) Indeed, a peremptory challenge may be based on “no more than a ‘hunch’ about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias....” (People v. Williams (1997) 16 Cal.4th 635, 664.) With respect to Bryant’s claim regarding the predominately Hispanic composition of the impaneled jury, it is also worth noting that both the prosecutor and defense counsel were of the opinion that Juror No. 8965 was more likely Hispanic than African-American. In fact, during the hearing on the Wheeler motion, defense counsel appeared to concede that the prosecutor’s stated belief about the juror’s race was sincere, as counsel noted that he “agree[d] with the court she’s very well not believing the woman is Black.” Under these circumstances, the trial court properly concluded that Bryant failed to make a prima facie showing of discrimination.
Even assuming that Bryant had established a prima facie case, the prosecutor articulated sufficiently specific race-neutral reasons for challenging Juror No. 8965, which were accepted by the trial court. “It is well settled that ‘[p]eremptory challenges based on counsel’s personal observations are not improper.’ [Citation.]... ‘[N]othing... disallows reliance on the prospective jurors’ body language or manner of answering questions as a basis for rebutting a prima facie case’ of exclusion for group bias. [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 917.) Accordingly, a prosecutor may legitimately challenge a prospective juror based on such subjective characteristics as dress, demeanor, and body language. (See People v. Ward, supra, 36 Cal.4th at p. 202; People v. Reynoso, supra, at p. 917; Wheeler, supra, 22 Cal.3d at p. 275.) In this case, the prosecutor provided race-neutral reasons for excusing Juror No. 8965 based on her appearance and demeanor, explaining that she did not like the juror’s “heavy make-up, ” “low-cut shirt, ” “open toe shoes, ” “folded arms, ” and “body language toward [her].” The prosecutor also expressed concern about the juror’s equivocal responses to the questions regarding her potential bias against the police.
Bryant argues that the prosecutor’s explanation for excusing Juror No. 8965 was not specific enough in that she failed to articulate why the juror’s appearance and body language suggested that she would be unfavorable to the prosecution. However, “[a]ll that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. ‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]’” (People v. Reynoso, supra, 31 Cal.4th at p. 924; see also Wheeler, supra, 22 Cal.3d at p. 275 [“party may feel a mistrust of a juror’s objectivity on no more than the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’”].) Here, the trial court reasonably could have inferred from the prosecutor’s proffered reasons that she genuinely believed the juror’s dress and demeanor reflected a potential bias against the People’s case. There is simply nothing in the record to suggest that the prosecutor’s stated concerns about the juror’s appearance were a mere pretext for purposeful discrimination.
Bryant asserts that the prosecutor’s reliance on the juror’s answers in voir dire also demonstrated pretext because the prosecutor misrepresented the juror’s actual responses to the trial court. Bryant is correct that, when Juror No. 8965 was asked if she would be biased against law enforcement based on their failure to recover her stolen car, she did not say that she “hoped” not, as characterized by the prosecutor. However, the juror’s actual response of “I don’t think so” was still arguably equivocal. It therefore supported the prosecutor’s representation to the trial court that the Juror No. 8965’s failure to provide “a clear-cut answer” to questions about her potential bias did not “sit well” with the prosecutor. As the Attorney General notes, a juror’s equivocal statements about how personal views and experiences might affect his or her judgment in a case can be a legitimate, non-discriminatory basis for a peremptory challenge. (People v. Adanandus (2007) 157 Cal.App.4th 496, 510 [prosecutor offered legitimate explanation for excusing juror based on his “ambivalent or noncommittal responses”].) Because substantial evidence supported the trial court’s finding that the prosecutor had permissible race-neutral reasons for excluding Juror No. 8965, its ruling “is entitled to ‘great deference’ on appeal.” (People v. Reynoso, supra, 31 Cal.4th at p. 926.) The trial court did not err in denying Bryant’s Wheeler motion.
II. Custody Credit
At sentencing, Bryant was awarded a presentence custody credit of 212 days, consisting of 142 days of actual custody credit and 70 days of conduct credit pursuant to section 4019. At the time of Bryant’s sentencing, section 4019 provided for one day of work time credit and one day of conduct credit for each six-day period of custody. Effective January 25, 2010, the statute was amended to provide for one day of work time credit and one day of conduct credit for every four-day period of custody. (Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50.) Bryant contends that the amendments should be applied retroactively to give him additional days of conduct credit against his prison term.
The Supreme Court has granted review to resolve a split in authority over whether the recent amendments to section 4019 apply retroactively. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010 (S181963) [giving retroactive effect to amendments]; accord People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010 (S182808); People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010 (S182183); contra, People v. Rodriguez (2010) 183 Cal.App.4th 1 , review granted June 9, 2010 (S181808).) This Court recently addressed the issue in People v. Keating (2010) 185 Cal.App.4th 364, 390-391, petition for review filed July 12, 2010 (S184354), where we held that the amendments to section 4019 are retroactive, and thus, apply to sentences not yet final as of the effective date of the legislation. Pending a resolution of this issue by the Supreme Court, we will follow that view.
Therefore, under section 4019, as amended, Bryant is entitled to one day of work time credit and one day of conduct credit for every four-day period of actual presentence custody. (§ 4019, subds. (b) & (c).) Since Bryant served 142 days of actual presentence custody, he is entitled to 142 days of conduct credit, for a total presentence custody credit of 284 days. The abstract of judgment must be modified accordingly.
In light of our holding that the recent amendments to section 4019 are retroactive, we need not address Bryant’s argument that his equal protection rights would be violated if the amendments were given only prospective application.
DISPOSITION
The judgment is affirmed as to Bryant’s conviction for grand theft of personal property and reversed as to the calculation of his presentence custody credit only. The judgment is hereby modified to award Bryant a total of 284 days of presentence custody credit, consisting of 142 days of actual custody credit and 142 days of conduct credit. As modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment reflecting a total award of 284 days of presentence custody credit and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: WOODS, Acting P. J., JACKSON, J.