Opinion
B293205
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. KAMAU DAVIS, Defendant and Appellant.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA091042) APPEAL from a judgment of the Superior Court of Los Angeles County, Richard Romero, Judge. Affirmed. Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Kamau Alimau Davis was convicted, following a jury trial, of one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and one count of assault with a semiautomatic weapon (§ 245, subd. (b)). He was acquitted of one count of murder (§ 187, subd. (a)) and one count of attempted murder (§§ 187, 664). He waived his right to a jury trial on the allegations that he had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior serious or violent conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and had served a prior prison term. The trial court found the allegations true and sentenced him to a term of 36 years 4 months in state prison.
All further undesignated statutory references are to the Penal Code.
Appellant appeals from the judgment of conviction, contending the record is inadequate to permit meaningful appellate review of the voir dire proceedings. He also contends the trial court committed reversible error in denying his five Batson/Wheeler motions, arguing the prosecutor improperly exercised her peremptory challenges to excuse jurors on racial and gender grounds. Finally, appellant contends the trial court abused its discretion in denying his motion to strike his prior conviction.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
We find the record adequate to permit meaningful review. We affirm the judgment of conviction.
BACKGROUND
Appellant was convicted of a December 24, 2011 assault with a semiautomatic firearm in the home of Kim Ann Larsen in San Pedro. Appellant had come to Larsen's residence and was inside the apartment for 10 minutes before she kicked him out. Larsen had several other guests in her apartment living room as well. She was in her bedroom wrapping presents when she heard a gunshot inside her residence. She came out of her bedroom and saw appellant pointing a large black gun toward the kitchen. One of her guests was standing in the doorway of the kitchen. Larsen pushed appellant out of her house. She then saw a bullet hole in the freezer of her refrigerator and a bullet lodged in the wall under the window.
Larsen did not call the police. About a year later, police interviewed her about appellant in connection with their investigation of the facts surrounding a December 2011 murder. During the interview, she remembered and recounted the incident in her apartment.
Appellant was also convicted of a December 24, 2011, assault with a firearm. He used the weapon to force Garry Nance to drive him around an area near the Harbor Freeway. Nance was in the area to pick up a friend of his daughter. When he arrived at the pick-up location, his daughter's friend was not present but appellant was. Appellant stated he could show Nance where the friend was. Once inside Nance's car, appellant began directing Nance to drive around. When Nance demurred, appellant pulled out a gun. Nance was able to stop and flee from the car, running into a Circle K gas station. A Circle K employee called the police. Appellant did not discharge the weapon.
DISCUSSION
I. Meaningful Review of the Record Is Possible.
Appellant contends the record of voir dire is inadequate to permit meaningful appellate review. He urges us to order the Los Angeles County Superior Court to use a different system of identifying jurors. Appellant believes the system of referring to prospective jurors by their seat numbers rather than their juror identification numbers (JID) during voir dire is confusing because jurors change seats during that process. He claims the trial court should use only the JID. We do not agree.
A defendant in a criminal case is entitled to an appellate record adequate to permit " ' " 'meaningful appellate review.' " ' " (People v. Galland (2008) 45 Cal.4th 354, 370.) The denial of an adequate record is a violation of the due process and equal protections clauses of the U.S. Constitution. (Griffin v. Illinois (1956) 351 U.S. 12, 16-20.)
Referring to prospective jurors alternately by their seat numbers and their JIDs, as was done here, does not deprive a defendant of a public trial and is not otherwise unconstitutional. (See People v. Goodwin (1997) 59 Cal.App.4th 1084, 1092; People v. Thomas (2012) 53 Cal.4th 771, 786-788.). To preserve a Batson/Wheeler challenge, counsel may "need to protect the record where the ethnicity of a name underlies the challenge." (Goodwin, at p. 1092, fn. 5.)
The trial court clearly explained and followed its system for seating and identifying prospective jurors for voir dire. It is quite straightforward to track each juror from the point of being seated through the point of being excused, challenged or accepted onto the jury.
Initially, the court called 18 prospective jurors from the audience and seated them in seats numbered 1 through 18 for questioning by the court, the prosecution, and the defense. As the jurors were called from the audience, they were initially identified by the last four numbers of their JID. Once seated, the juror was referred to by his or her seat number. Although the jurors' full names are not reflected in the reporter's transcript of voir dire, the court and defense counsel specified each juror's last name when the ethnicity of the name was part of the challenge. Court and counsel had a list associating the jurors' names with their JIDs.
Once seated in the jury box, only two movements were possible for a prospective juror: (1) jurors in seats 13 through 18 could move to a seat in the 1 through 12 number range as it became vacant due to challenges; and (2) jurors in seats 1 through 12 could leave the jury box. Thus, each prospective juror could have at most two seat numbers, the first being 13 through 18 and the second 1 through 12. Voir dire of a prospective juror took place when the juror was newly seated, and therefore used the juror's initial seat number.
Some jurors might have only one seat number. The first 12 jurors seated by the court in seats 1 through 12 would have only their initial seat number. Jurors seated in seats 13 through 18 were the subject of challenges for cause immediately after questioning, and so some jurors in those seats might be excused for cause without moving from their original seat.
Prospective jurors in the 13 through 18 section would not normally be subject to peremptory challenges during most of voir dire. The reason for this is clear: The prospective jurors in seats 1 through 12 when both sides accepted the panel would become the actual jury. Any prospective jurors remaining in seats 13 through 18 would be at most potential alternate jurors. Thus, until the very end of voir dire, there was no reason for either party to use a peremptory challenge on jurors in seats number 13 through 18.
The movement of prospective jurors occurred in an orderly and predictable manner. After questioning of newly seated prospective jurors concluded, the court heard challenges for cause at sidebar. If a prospective juror in seats 1 through 12 was excused for cause, the prospective juror in seat 13 would be moved to that empty seat. Peremptory challenges then began. These challenges were directed at prospective jurors in seats 1 through 12. After each peremptory challenge, a prospective juror from the 13 through 18 section would be moved to the vacated seat in the 1 through 12 section. Prospective jurors were moved in numerical order: Juror in seat 13, then juror in seat 14, and so on. Once the juror in seat 18 was moved to the 1 though 12 section, one additional peremptory challenge was allowed, and then the jury box was refilled.
If two jurors in seats 1 through 12 were excused, jurors 13 and 14 would be moved, and so on.
Occasionally, as a prospective juror started to move from the 13 to 18 section to 1 through 12 section, one of the parties would state its intent to "save a trip" and excuse the juror before he or she formally changed seats.
The jury box was refilled by seating the first prospective juror from the audience in the vacant seat in the 1 through 12 section and the next six prospective jurors in seats 13 through 18. The newly seated prospective jurors were questioned, and then a new round of challenges for cause and peremptory challenges took place. This cycle repeated until both sides accepted the panel of prospective jurors in seats 1 through 12.
As we demonstrate below, it is not difficult to determine the JID of a juror, and his or her seat number(s) if the juror's seat number at the time of the challenge is specified for the record. Comments by defense counsel suggest she used a post-it note system to keep track of jurors during voir dire, and there is no reason appellate counsel could not work through the reporter's transcript using such a system.
A common method of using post-it notes would involve creating a chart with three rows of six seats, with the rows being numbers 1 through 6, numbers 7 through 12 and numbers 13 through 18. When voir dire began, a post-it note would be placed in each box with the JID and initial seat number of the prospective juror. When a prospective juror was excused, his or her post-it note would be removed from the numbered box, and the appropriate post-it note for a prospective juror from the 13 through 18 section would be moved to the open box and annotated with the new seat number. As new prospective jurors were called from the audience, a fresh post-it note with the juror's JID and initial seat number would be placed in the appropriate box.
A. Although Defense Counsel Failed to Adequately Identify One of the Three Jurors in the First Motion, the Other Two Jurors Are Readily Identifiable.
The juror in seat 2 whose challenge was the prompt for the defense's first Batson/Wheeler motion was Juror 0064. This juror was called from the audience directly into seat 2. She replaced the just-seated Juror 8771, whom the parties had stipulated to excuse. Juror No. 2 (0064) was excused in the first round of peremptory challenges which occurred after her seating.
Defense counsel stated: "This is the fifth exercise of a peremptory challenge by the prosecution. Three of them have been Hispanic, Hispanic females, to be precise. It's without cause. [¶] One of the females was the older lady that was seated in seat No. 7 that was, I believe, 5732, her last four digits. The first female was the one that came in late on that one day and ended up in the jury box. She was the one that worked for the county, and we had even talked about you can't judge a book by the cover because she seemed a little skeptical at first. But in talking to her, she had like a really good county job and seemed pretty up front."
It is not possible to identify this unspecified "first" juror. None of the jurors challenged by the prosecution fit this description. The prosecution had used only five peremptories when the defense brought its first Batson/Wheeler motion, and defense counsel identified two of them, so only three possibilities remained as the "first" juror: Juror No. 5 (4074); replacement Juror No. 7 (7706), and second replacement Juror No. 5 (6794).
The original Juror No. 5 (4074) was removed by the prosecution and replaced with Juror No. 15; this first replacement Juror No. 5 was promptly excused by the defense and replaced by Juror No. 18 (6794). This second replacement Juror Number No. 5 (6794) was subsequently removed by the prosecution.
Juror No. 5 (4074) worked as an enrollment specialist for a health plan who made sure that all the Medi-Cal enrollees in the plan had active benefits and, when necessary, worked with the County Department of Public Social Services. The only juror who clearly described a good county job in voir dire prior to the defense motion was original Juror No. 14 (1703). She was moved to seat 9 and then challenged by the defense.
Defense counsel's reference to the juror arriving late does not assist in the identification process. The record does not indicate that any of the excused jurors were late but ended up on the jury.
As we demonstrate throughout this opinion, it is not difficult to put a juror together with his or her JID and initial and subsequent seat numbers, even if all you know is the juror's seat number when challenged. Defense counsel did not provide this simple and straightforward seat information number, however, and so we cannot determine who the "first" juror was. We view this simple omission as a hindrance on a minor point, given how voir dire played out here, but it does not amount to a deprivation of a meaningful record for review.
B. The Juror in the Second Motion Is Readily Identifiable.
The juror in seat 11 whose challenge was the prompt for the defense's second Batson/Wheeler motion was Juror 0374. This juror was called from the audience and placed into seat 14. Other jurors were also called from the audience to refill the panel. Newly seated jurors were questioned.
A round of peremptory challenges began. Juror No. 14 (0374) was moved to seat 11, following a challenge of the seat's prior occupant. The trial court then called more jurors from the audience to fill in seats. Again, the new set of jurors was questioned.
A new round of challenges began. Juror No. 11 (0374) was excused by the prosecutor.
C. The Juror in the Third Motion Is Readily Identifiable.
The juror in seat 7 whose challenge was the prompt for the defense's third Batson/Wheeler motion was Juror 7444. This juror was called from the audience and placed into seat 7. Other jurors were also called from the audience to refill the panel, and the newly seated jurors were questioned.
A round of peremptory challenges began. Juror No. 7 (7444) was not excused, and did not change seats because s/he was in the 1 through 12 section. Following this round of peremptory challenges, additional jurors were called from the audience, and the newly seated jurors were questioned.
A new round of peremptory challenges began. Juror No. 7 (7444) was excused by the prosecution.
D. The Juror in the Fourth Motion Is Readily Identifiable.
The juror in seat 9 whose challenge was the prompt for the defense's fourth Batson/Wheeler motion was Juror 4199. This juror was called from the audience and placed in seat 16. Questioning of newly seated jurors followed.
A round of peremptory challenges began. Juror No. 16 (4199) was moved to fill in seat 9 following a challenge of the seat's prior occupant. Questioning of newly seated jurors followed.
A new round of peremptory challenges began. Juror No. 9 (4199) was not excused and not moved because s/he was the 1 through 12 section. A new group of jurors was called from the audience and the newly seated jurors were questioned.
Another round of peremptory challenges began. The prosecutor indicated her intent to excuse Juror No. 9 (4199) during the hearing on the third motion. The prosecutor did not formally excuse Juror No. 9 (4199) until the next round of peremptory challenges.
E. The Juror in the Fifth Motion Is Readily Identifiable.
The juror in seat 8 whose challenge was the prompt for the defense's fifth Batson/Wheeler motion was Juror 5711. This juror was called from the audience and placed in seat 18. Newly seated jurors were questioned.
A new round of peremptory challenges began. Juror No. 18 (5711) was moved to fill in seat 8 following a defense challenge of the seat's prior occupant. The prosecutor immediately challenged new Juror No. 8 (5711). II. The Trial Court Properly Denied Appellant's Batson/Wheeler Motions.
Appellant made a total of five Batson/Wheeler motions in the trial court. In his first motion, he contended the prosecutor had used three of her five peremptory challenges to remove Hispanic women. In his second through fifth motions, appellant made varying claims about the number of Hispanic, Black and Asian jurors removed by the prosecutor. Based on the jurors identified in the Batson/Wheeler motions, we estimate the prosecutor excused five Hispanic jurors and one Black-Asian juror out of her first ten peremptory challenges. Appellant can be understood as arguing the prosecutor excused eight minority jurors out of her first 10 peremptories. We consider the motions serially, and find the trial court properly denied each motion.
A. Applicable Law
"A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against 'members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds'—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Griffin (2004) 33 Cal.4th 536, 553 [15 Cal.Rptr.3d 743, 93 P.3d 344].) Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson, supra, 476 U.S. at p. 88; see also People v. Cleveland (2004) 32 Cal.4th 704, 732 [11 Cal.Rptr.3d 236, 86 P.3d 302].)" (People v. Avila (2006) 38 Cal.4th 491, 541.) The Constitution forbids striking even a single prospective juror for a discriminatory purpose. (Snyder v. Louisiana (2008) 552 U.S. 472, 478.)
It is presumed that the prosecutor exercised her peremptory challenges in a constitutional manner, and appellant bears the burden of rebutting that presumption. (People v. Johnson (2015) 61 Cal.4th 734, 755.) In determining whether the presumption of constitutionality is overcome, we apply the well-established three-step inquiry set forth in Batson. (People v. Taylor (2009) 47 Cal.4th 850, 885.)
At step one, "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.' " (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) If the court finds the defendant has made a prima facie case and inquiry proceeds to the second stage, the burden shifts to the prosecution to adequately explain the exclusion by providing a race-neutral justification for the challenge. (Id. at p. 168.)
When the prosecutor states her reasons for the challenge before the trial court rules on the prima facie case, " 'we infer an "implied prima facie finding" of discrimination and proceed directly to review of the ultimate question of purposeful discrimination.' [Citations.] Accordingly, 'we must determine whether the trial court correctly ruled that the defense did not demonstrate discriminatory purpose at the third stage.' " (People v. Hardy (2018) 5 Cal.5th 56, 76 (Hardy).) That was the situation for the second through the fifth motions brought by appellant in this case. In the first motion, the trial court did find there was no prima facie showing. The court nevertheless invited the prosecutor to explain the use of her peremptory challenge, and appears to have "ruled on the ultimate question of intentional discrimination," so we will treat the question of whether the defendant established a prima facie case as "moot." (People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8 (Lenix).)
The trial court's determination of whether the defendant has proved purposeful discrimination focuses on the subjective genuineness of the prosecutor's reason. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158.) As such, it involves an evaluation of the prosecutor's credibility. (Snyder v. Louisiana, supra, 552 U.S. at p. 477.) " '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 assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
When a trial court rules that the defense did not demonstrate discriminatory purpose at the third stage, we " 'review the trial court's determination with restraint, presume the prosecutor has exercised the challenges in a constitutional manner, and defer to the trial court's ability to distinguish genuine reasons from sham excuses.' " (Hardy, supra, 5 Cal.5th at p. 76 (Hardy).)
"Reviewing the trial court's determination with restraint does not, however, mean abdication. ' "Although we generally 'accord great deference to the trial court's ruling that a particular reason is genuine,' we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror." [Citation.] "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient." [Citation.] However, we also have stated that a trial court is not required "to make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutor's demeanor-based reasons for exercising a peremptory challenge." ' " (Hardy, supra, 5 Cal.5th at pp. 76-77.)
B. The Trial Court Did Not Improperly Speculate About the Prosecutor's Reasons for Exercising Peremptory Challenges.
Appellant contends the trial court erred by "immediately" putting itself in the prosecutor's shoes and deciding if a reasonable attorney would strike that juror, as part of the court's analysis of whether defense counsel had made a prima facie case of discrimination. He contends that this sort of speculation is exactly what the United States Supreme Court said trial judges may not do in the first step of the analysis. (Johnson, supra, 545 U.S. at pp. 165, 173.)
The court's finding of no prima facie showing in the first motion was moot and the court made implied findings of a prima facie case for the remaining four motions; the court proceeded to elicit and rule on the prosecutor's reasons for exercising the subject peremptory challenges. We consider this claim only because appellant has contended that it shows the court was biased or lacked an understanding of the law. Appellant is mistaken.
The California Supreme Court considered a similar claim by a defendant who contended "that the trial court's determination was flawed because it speculated as to the prosecutor's reasons for challenging the juror when it referred to the juror's views on the criminal justice system and the circumstance that her aunt had been convicted of murder. [Defendant] relies . . . upon the Johnson decision, in which the court stated: 'The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question. See Paulino v. Castro, 371 F.3d 1083, 1090 ([9th Cir.] 2004) ("[I]t does not matter that the prosecutor might have had good reasons . . . [w]hat matters is the real reason they were stricken" . . .).' (Johnson, supra, 545 U.S. at p. 172 [162 L.Ed.2d at pp. 140-141].) The quoted caution against speculation must be read in light of the high court's statement that a prima facie case is established when the 'defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.' (Id. at p. 170[162 L.Ed.2d at pp. 140-141].) Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutor's reasons—it should inquire of the prosecutor, as the high court directed. But there still is a first step to be taken by the defendant, namely producing evidence from which the trial court may infer 'that discrimination has occurred.' (Ibid.) We have concluded that the evidence alluded to by defendant in the trial court did not support such an inference." (People v. Cornwell (2005) 37 Cal.4th 50, 73-74 disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, the trial court did precisely what is permitted by Cornwell: it looked at the evidence to determine whether it was sufficient to permit the court to infer discrimination had occurred. As our Supreme Court has explained, a defendant may make a prima facie showing in a number of ways. " '[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole.' " (People v. Reynoso (2003) 31 Cal.4th 903, 914.) Here, as we discuss below, there were disagreements about the identify and number of jurors who qualified as members of a minority, and it appears the trial court elected to focus on the differentiating characteristics of the challenged jurors. Even if we were to assume this was not the proper focus, and the trial court should have considered only numbers in making a prima facie case determination, there would be no prejudice to defendant because we have implied a finding of a prima facie case as a matter of law.
C. First Motion
After the prosecutor excused Juror No. 2 (0064), defense counsel made her first Batson/Wheeler motion. Defense counsel characterized Juror No. 2 (0064) as the third Hispanic female to be excused by the prosecutor out of five challenges. Counsel identified the first female to be excused as the one who came in late but had "a really good county job and seemed pretty up front." As we have explained, none of the prospective jurors excused by the prosecution matched this description. The second female was described as "the older lady that was seated in seat no. 7 that was . . . 5732." Thus, defense counsel had effectively identified only two Hispanic females excused by the prosecution.
As we discuss above, the description of one of the three jurors did not match any of the prospective jurors challenged by the prosecutor.
Defense counsel argued as to Juror No. 2 (0064): "I think if anybody would be a great juror, it is her because she has experienced both . . .worlds. She has dealt with being victimized of a crime, witnessed a crime, and having her ex-husband arrested for murder."
The record does not show that Juror No. 2 (0064) was the victim of a crime; she described herself as a victim of her ex-husband's crime because of the way law enforcement officers treated her when her ex-husband was arrested. She may have witnessed her ex-husband's crime.
In response, the trial court indicated that a reasonable prosecutor might have stricken Juror No. 2 (0064) on the basis of her negative experience with police when her ex-husband was arrested. The court stated: "This is not a prima facie showing but if the D.A. wants to explain your peremptory, you may do so."
Because the trial court made a finding of no prima facie case, we cannot make the implied finding of no prima facie case suggested by the Court in Hardy. Nevertheless, since the court invited the prosecutor to explain the use of his peremptory challenge, and appears to have "ruled on the ultimate question of intentional discrimination," we will treat the question of whether the defendant established a prima facie case as "moot." (Lenix, supra, 44 Cal.4th at p. 613, fn. 8.)
The prosecutor first expressed her belief that Juror No. 2 (0064) was not Hispanic, but rather Italian, based on her last name. The prosecutor explained that "starting with what the court just said, having a gun pointed in her face, she currently has two close relatives that are going through the system now, one of which is charged with the exact same crime as this defendant. I think that in and of itself is sufficient, as well."
A juror's negative experience with the police, or a close relative's negative experience with police, is a neutral reason for excusing that juror. (People v. Panah (2005) 35 Cal.4th 395, 442.) " '[A] prosecutor may reasonably surmise that a close relative's adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution.' " (People v. Jones (2013) 57 Cal.4th 899, 920.) Similarly, a prospective juror's belief that the criminal justice system had treated a relative unfairly is a valid basis for a peremptory challenge. (People v. Melendez (2016) 2 Cal.5th 1, 18.)
The record shows that Juror No. 2 (0064) described a very traumatic encounter with police in connection with her ex-husband's arrest, so traumatic that she described herself as a victim. She provided this account after the prosecutor asked her if she had any doubts about the system. She replied, "I have my doubts, but for the most part, it's been pretty good." She then elaborated that "when they came for the search warrant to arrest [my ex-husband], I had two of my kids at the time. They were very young, three and four. So they were in one room, and I was asleep when he was going to work when they came with the search warrant. They arrested him outside. So when they came into the house, I know they were doing their job, but I woke up to a gun in my face. I didn't appreciate that because they also did the same to my kids."
The record also shows, as the prosecutor argued, Juror No. 2 (0064) had two relatives going through the system. Her son was facing a charge of misdemeanor shoplifting which the juror believed was unjustified; she explained that her son and a friend drove to the mall, but her son, who was the driver, did not know his friend had stolen things in the mall. She also stated that a cousin was charged with murder after the victim of an assault died in the hospital. She described the crime: "[T]hey were at a bar and some other guys got in a fight outside, and he went out there."
After the prosecutor provided her explanation, the court asked defense counsel why she believed Juror No. 2 (0064) was Hispanic. Defense counsel stated she believed it was a Hispanic name but she also based her determination of ethnicity on appearance. The court stated, "Based on the objective factors, I would say it's undetermined what her ethnic background is. That's an Italian last name." The court also noted that what was important was what ethnicity the juror appeared to be.
The court denied the motion without questioning the prosecutor or making detailed findings.
" ' "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings." ' " (Hardy, supra, 5 Cal.5th at p. 76.) " 'Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication.' " (Id. at p. 77.) That was the situation here. Juror No. 2 had been traumatized by her experience with police, believed that her son had been charged with a crime he did not commit, and had a relative who was facing the same charge as appellant. It is self-evident that a prosecutor would not want such a juror on the panel. We defer to the trial court's ruling, but even if we did not, the record provides no basis to doubt the credibility of the prosecutor's explanation.
D. Second Motion
Defense counsel made her second Batson/Wheeler motion after the prosecutor excused Juror No. 11 (0374). She contended that this was the fourth Hispanic female to be excused by the prosecutor out of six peremptory challenges. Counsel first claimed that the juror's ex-husband was a sheriff's deputy and that would be favorable to the prosecutor, then said she had grabbed the wrong post-it note and did not remember anything that would cause the prosecutor to strike the juror.
The court agreed the juror was a Hispanic female and stated "nothing stood out [about her] that I can recall." The court said "without making a finding yet, if you want to explain your reasons."
The prosecutor explained she excused Juror No. 11 (0374) because "she indicated that she would absolutely require more than [the testimony of] a single witness. And given the circumstance of some of the issues in this case, there are just one-witness-type situations where we have a single eyewitness. [¶] Additionally, she was also a part of a hung jury."
A juror's hesitation in applying the single-witness rule is a nondiscriminatory reason for excusal. (People v. Bryant (2019) 40 Cal.App.5th 525, 540.) "[M]any cases have held service on a hung jury to be an appropriate, race-neutral reason for excusing a juror." (People v. Winbush (2017) 2 Cal.5th 402, 438.)
The court stated it recalled the juror's answer to the single witness question and was surprised there was not any follow up to it. The court asked defense counsel for a response. She explained she did not have an opportunity to follow up. She claimed the prosecutor's question to Juror No. 11 (0374) was "very leading and confusing and led her in the wrong direction" and "it was never asked of her, 'If you thought that [a] single witness was completely credible and you believed their testimony, could you base the case on it?" However, the record shows the prosecutor in fact asked Juror No. 11 (0374) that precise question.
After some preliminary questioning on the single-witness topic, the prosecutor gave Juror No. 11 (0374), who was then in seat 14, a hypothetical question: "Well, the instruction that I talked to Juror No. 7 about, the testimony of a single witness who meets all of the elements that are required, and you believe that witness, you know, they're pretty good. You know, they sound credible. They have no reason to lie. You believe them. They meet the elements. [¶] Would you be able to base a verdict of guilt on the testimony of that single witness?" The juror replied: "On one single witness?" The prosecutor stayed: "Uh huh." The juror said: "No."
The prosecutor began by asking Juror No. 11 (0374), then in seat 14, if a crime occurred in the courtroom, with 50 people present, how many of them would she expect the prosecutor to call as witnesses. Juror No. 11 (0374) replied: "At least half of them." The prosecutor responded: "Really?" Juror No. 11 (0374) replied: "At least you need more than just one."
It was undisputed that Juror No. 11 (0374) stated that she had been part of a hung jury.
The court stated: "A reasonable prosecutor would excuse a juror, in my opinion, nearly automatically for being on a hung jury without any further inquiry. [¶] So the motion is denied."
Both of the prosecutor's stated reasons were inherently plausible and supported by the record, and so the trial court was not required to question the prosecutor or make detailed findings. (See Hardy, supra, 5 Cal.5th at p. 76.) The trial court properly relied "on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her" to evaluate the prosecutor's credibility. (Lenix, supra, 44 Cal.4th at p. 613.) Accordingly, we defer to the trial court's ruling.
E. Third Motion
Defense counsel made her third Batson/Wheeler motion after the prosecutor excused Juror No. 7 (7444). The court described the juror as Asian. Defense counsel claimed the juror was Black, with possibly some "Asian mix." The prosecutor pointed out that the juror's last name was Asian, and stated the juror seemed to be mixed race.
The court stated Juror No. 7 (7444) had "a flat affect" and had never held a job and a reasonable prosecutor would excuse him for those two reasons. The court asked defense counsel why she thought the challenge was based on race or ethnicity.
Defense counsel responded the prosecutor had used seven of her eight peremptories on jurors who were Black or Hispanic and there was only one Black person left inside the jury box and no Hispanics. The court pointed to Juror No. 9 as being Hispanic, and agreed with the prosecutor that Jurors Nos. 2 and 8 were Hispanic.
Defense counsel also stated that Juror No. 7 (7444) "said nothing that would in any way raise a concern for the prosecution in this case. He is not a victim of a crime. He's not associated with people that have been to jail." She disputed that he had a flat affect, saying "he is just a quieter person. You want different personalities on the jury." The court replied: "Without making a finding of a prima facie case, if the D.A. wishes to explain her reasons, go ahead."
The prosecutor explained she excused Juror No. 7 (7444) because he was "somewhat slow" and more significantly was in his mid-30's and had never held a paying job.
Excluding a prospective juror "on the basis of his limited life experience" particularly when combined with a "concern about [the prospective juror's] intellectual capacity" constitutes a race-neutral explanation for a peremptory challenge. (People v. DeHoyos (2013) 57 Cal.4th 79, 108.)
The record shows Juror No. 7 (7444) did in fact tell the court he had never held a paying job. Defense counsel herself acknowledged that the day before she "did make the comment to the prosecution afterwards, like, is he slow?" She also expressed her opinion that Juror No. 7 (7444) was acting differently: "[T]oday he is speaking up and very intelligent and very on point and gave, I think, some of the best answers if you're looking for a midline fair juror." The court replied: "The showing hasn't been established here. The motion is denied."
" ' "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings." ' " (Hardy, supra, 5 Cal.5th at p. 76.) That was the situation here.
The prosecution's explanation is inherently plausible. This was a complicated case, and a juror with little life experience whose responses raised questions about his intellectual capacity might well have difficulty following the prosecution's case. It is, of course, the prosecution which has the burden of proof. Defense counsel did not disagree that a "slow" juror would present difficulties for a prosecutor or that Juror No. 7 (7444) appeared "slow" during the first day of questioning. Defense counsel's argument that Juror No. 7 (7444) was "speaking up and very intelligent and very on point" during the second day of questioning is not supported by the record. We defer to the trial court's ruling.
To give just one example, the prosecutor told Juror No. 7 (7444): "A lot of times we kind of deal in gray areas." She then asked Juror No. 7 (7444) how he would respond if a witness's description differed slightly from a photograph or if two witnesses remembered the same event a little bit differently: "Would you be able to kind of work through it . . . or would you automatically throw up your hands and say, 'I can't decide because neither of them is really right. One says one thing, one says another.?' " Juror No. 7 (7444) replied, "I wouldn't be able to decide that."
F. Fourth Motion
At the end of the third motion, the prosecutor stated her intent to next excuse Juror No. 9 (4199), a Hispanic male. She explained that she excused him because "[h]e flat out said he does not want to be here and is completely disinterested in the proceedings as we've been going along."
Defense counsel complained the prosecutor had not excused a juror who had been reading a book or a juror who was reading notes. The prosecutor replied she had excused Juror No. 5 who was reading his notes and had not "yet" gotten to Juror No. 4 who was reading a book. The court agreed the prosecutor had excused Juror No. 5 who was reading.
The court asked defense counsel for the basis of her motion, and she replied the prosecutor had used seven out of her nine challenges on minorities, and five of them were Hispanic. She also contended "everybody has said he doesn't want to be here. That's been my first question to everybody, and nobody wants to be here. . . . He hasn't done anything, hasn't thrown any fits, hasn't done anything to get himself kicked off."
The prosecutor elaborated that Juror No. 9 (4199) was the juror who said he had the worst cold of his life "and he didn't go to work the first two days of this week. Then he went to jury duty, and because of that, he is now behind on his project that he is currently working on. He is a software developer and followed that up with a flat-out, 'I don't want to be here.' He also said his mind would be on those other things that are going on rather than being here in the courtroom." The court denied the motion.
A juror's express or implied desire not to serve on a jury is a neutral reason to excuse the juror. (See People v. Jordan (2006) 146 Cal.App.4th 232, 254-255.)
Defense counsel stated: "I would make the argument if there is a showing for two or three different people where nobody wants to be here, everyone said they don't want to be here. So people are sick. We heard coughs all throughout the last three days. There is no question about that. Yet if we pick and choose that the person that we're going to excuse is the Black juror or the Hispanic juror over the White juror that had the same issues . . . ." She argued Juror No. 9 (4199) "is in no different of a position" than other jurors who had not been excused.
The trial court replied: "Of course, the D.A. is not excusing other jurors for the reason she gives for excusing that minority juror. That's a reason to suspect that the use of the peremptory against the challenged juror may be race-based, but I don't see that here." This statement is awkwardly phrased and ambiguous. We will assume for the sake of argument the trial court agreed the prosecutor had not excused white jurors for the reason she gave for excusing Juror No. 9 (4199), but that the court nevertheless found the prosecutor did not excused Juror No. 9 (4199) based on race. Accordingly, we consider the comparisons argued by defense counsel.
" '[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.' " (Gutierrez, supra, 2 Cal.5th at p. 1174.) "[C]omparative analysis is subject to inherent limitations, especially when performed for the first time on appeal." (Ibid.) We are required to review any panelist comparison that is made by the trial court. (Ibid.)
One of the limitations of comparative analysis surfaces when, as here the prosecutor has peremptory challenges remaining and has not yet accepted the panel. Jury selection is not over, and the prosecutor might well excuse similarly situated white jurors in the future. The prosecutor had already excused one uninterested white juror and more might follow.
Although defense counsel asserted everyone had heard coughing over the three days of voir dire, the trial court remembered Juror No. 9 (4199) as a juror who stood out for being ill, stating "He has been coughing a lot. [He was] coughing so hard this morning, he had to pull his t-shirt out and cough into the t-shirt." Health was not a topic of inquiry on voir dire, but we can say Juror No. 9 (4199) volunteered he had the worst cold of his life and there are no comparable statements from other jurors. Thus, Juror No. 9 (4199)'s claim of ill health does differentiate him from other unidentified coughing jurors.
Although defense counsel argued "nobody" wanted to be there, she herself had earlier recognized that Juror No. 9 (4199) stood out as one of two jurors who really did not want to be there. After voir dire of a group of newly seated jurors concluded, during the hearing on challenges for cause, defense counsel stated "I would offer a stipulation as to 16 [4199] and 18 [6794]. They don't have cause. There is no cause for them. They're just being not nice because they want to get out of here really bad for work, and I don't think that they would be good jurors for either side." The court refused to accept the offer of a stipulation.
Defense counsel's impression is fully supported by the record. Juror No. 9 (4199) was among the jurors who raised his hand when defense counsel asked, "Who really doesn't want to be here?" He also made two strong but indirect statements indicating he did not want to be there. When the court asked if any juror had any reason they could not be fair, Juror No. 9 (4199) replied in part: "I'm getting over the worst cold of my adult life, and things are happening at work right now that, yes, I can be on a jury and I can be impartial, but to be brutally honest, my project is always going to be in the back of my mind." Juror No. 9 (4199) also told defense counsel: "[A]ctually, we're behind deadline, and I was actually sick for the first two days of this week, and then Wednesday got called in. . . . So as I said, I can be impartial. It's just now there are things in the back of my mind that are adding to it."
Peremptory challenges followed, and Juror 4199 was moved to seat 9 and Juror 6794 to seat 5. The prosecutor exercised a peremptory challenge against Juror No. 5 (6794) in the next round of challenges. In the following round of challenges, the prosecutor indicated her intent to exercise the subject peremptory against Juror No. 9 (4199).
Assuming without deciding that the trial court's ambiguous ruling on this motion is not entitled to deference, "we are able to apply the high court's standard articulated in Johnson v. California, supra, 545 U.S. 162, and 'resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.' " (People v. Avila, supra, 38 Cal.4th at p. 554.)
Both of the prosecutor's reasons are inherently plausible. The record and defense counsel's own comments support the prosecutor's claim that Juror No. 9 (4199) stood out from other jurors with the strength of his desire not to serve. The record and the trial court's observation and description of Juror No. 9 (4199)'s coughing support the prosecutor's claim that the juror stood out from other jurors by the severity of his cold. There is no basis in the record to infer the prosecutor excused Juror No. 9 (4199) on the basis of race.
G. Fifth Motion
Defense counsel made her fifth and final Batson/Wheeler motion after the prosecutor excused Juror No. 8 (5711). The court noted it initially believed the juror was Asian, but as to "[e]thnic background, I have no idea." Defense counsel replied that the juror was Hispanic. The prosecutor disagreed, stating the juror appeared to be of Asian or mixed Asian descent, possibly Hawaiian. Defense counsel argued that the juror's last name was Hispanic. The court stated the juror did not look Hispanic.
Defense counsel argued that the challenge was minority based and there had been seven out of 10 such challenges. She stated: "Her brother-in-law was a sheriff deputy. . . . [S]he is a medical assistant. . . . [B]asically everything a prosecutor would dream of in a juror. . . . I was saying her brother-in-law was a sheriff deputy. Now he trains some sort of police in Alabama. Her dad was a victim of a robbery. Her family was a victim of a break-in that her father apprehended the person. Like, she has not said one thing that would be something that a prosecutor would be wary of."
The court stated: "I don't see anything myself, but if I were a prosecutor and I think a reasonable prosecutor would excuse her automatically for her . . . personality. She seems to be a weak individual . . . . She is very soft-spoken. We had to be telling her many times to speak up. She seems like a very, very timid person." The court added: "I'm not finding a prima facie case, but if [the prosecutor] want[s] to explain [her] reasons."
The prosecutor explained she had excused Juror No. 8 (5711) because she was "soft-spoken and timid" and because "she was a member of a hung jury." The prosecutor explained that although Juror No. 8 (5711) initially said it was just one juror, when questioned by defense counsel she "seemed to indicate there was a wider split than just 11 to 1, which led me to believe it was a regular hung jury as opposed to just one person."
The trial court essentially agreed with the prosecutor's understanding, stating: "My sense was that there was a split, and within one group there was a juror who could not change their mind so they decided, 'we can't get a unanimous decision,' just because of that one person." --------
Defense counsel contended in the trial court and contends again on appeal that Juror No. 8 (5711) was describing a jury divided 11 to 1. "[M]any cases have held service on a hung jury to be an appropriate, race-neutral reason for excusing a juror." (People v. Winbush, supra, 2 Cal.5th at p. 438.) Appellant has not cited any authority holding that it is unreasonable to excuse a juror if the jury hung 11 to 1, as opposed to 10 to 2 or some other split. Further, the prosecutor's understanding of Juror No. 8's statements as showing something other than an 11 to 1 split is a reasonable one.
Defense counsel asked Juror No. 8 (5711): "Was it just one juror that had been held up?" The juror replied: "No. Well, he was the one that made up—he was more, I guess, the person in control. He decided that he couldn't—wouldn't be able to come to an agreement as a whole group. So it was senseless—decided that we deliberate no further." Defense counsel attempted to clarify: "Amongst the twelve, was it eleven were in agreement and one person had a different opinion? Or was it split differently, or what?" Juror No. 8 (5711) replied: "Yeah. I mean, I don't quite remember how may were opposed, and, like—it was, like, eight years ago, but I just remember one being very adamant."
Appellant also contends the prosecutor's claim that Juror No. 8 (5711) was soft-spoken and that the court reporter had to tell her to speak up at least five times was contradicted by the record, which shows only that the court asked Juror No. 8 (5711) to speak up one time and contains no such directions from the court reporter. Defense counsel did not raise this claim in the trial court. There, she did not dispute the prosecutor's claim that the court reporter asked Juror No. 8 (5711) to speak up at least five times, or the trial court's statement that "[w]e had to be telling her many times to speak up."
It is not clear whether the court reporter should or would have included in the transcript her own requests on a non-substantive topic such as voice volume. The record amply supports the prosecutor's contention that Juror No. 8 (5711) was soft-spoken. It show that Juror No. 8 (5711) gave six answers which did not use audible words, shaking her head on two occasions and saying "uh huh" on four occasions. The second time Juror No. 8 (5711) gave a response reported as "uh huh" the court clarified on the record: "She indicates yes." On another occasion, when Juror No. 8 (5711) gave a verbal answer, the trial court repeated the last word of the reply questioningly, suggesting the court could not hear that word.
Both of the prosecutor's stated reasons were inherently plausible and supported by the record, and so the trial court was not required to question the prosecutor or make detailed findings. (See Hardy, supra, 5 Cal.5th at p. 76.) We defer to the court's ruling. III. The Trial Court Did Not Abuse Its Discretion in Denying Appellant's Request to Strike the Prior Conviction Findings.
Appellant contends the trial court abused its discretion when it denied his motion to strike his prior conviction. Appellant argues the court wrongly discounted his "extraordinary rehabilitation" during his lengthy detention before trial.
" '[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' " (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) Our Supreme Court has established stringent standards that a court must follow in determining whether an exception to that sentencing scheme should be made, and the defendant treated as though he fell outside the scheme. (Ibid.) " '[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' " (Ibid.)
The "law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) Thus, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. " '[T]he sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[ ] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Ibid.) " '[I]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations." (Ibid.)
" '[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 378.)
As appellant acknowledges, the trial court was aware of his rehabilitation in jail. The court recognized that appellant's conduct in jail was "deserving of recognition. He has taken advantage of jail classes and programs dealing with substance abuse and anger management, factors that played a part in the commission of these offenses." In listing circumstances in mitigation, he noted that appellant has "undergone a traumatic upbringing in his childhood." The court also stated that appellant had "taken advantage of programs to turn his life around, and because of his participation in those programs, he is less likely—I am not saying he wouldn't, but clearly less likely to commit offenses again . . . based on substance abuse or anger issues." The court recognized that appellant had "family community support, has work available to him once he is released from custody" and his family needs him.
The court concluded: "I note that the argument is that [appellant] today before the court is a different person than who committed these offenses. However, his conduct in jail, which is very laudatory, does not erase his prior conduct." Although the trial court's use of the word "erase" was perhaps not well chosen, we understand the court's statement, taken in context, to mean that appellant's conduct in jail did not outweigh the seriousness of his criminal conduct.
The record shows the trial court considered the relevant factors described in Carmony: " 'the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.' " (Carmony, supra, 33 Cal.4th at p. 377.) Thus, the trial court's decision is presumed to be rational and proper. (Id. at pp. 377-378.)
Appellant's argument is simply that the trial court accorded less weight to his rehabilitation and more weight to his criminal conduct than appellant believes is warranted. He repeats his defense counsel's argument that his discharge of the gun in Larsen's apartment was unintentional and no one was hurt and that he did not fire his gun at Nance or take anything from him. The trial court noted that appellant's convictions involved two separate and unrelated offenses. In one offense, appellant premeditated his crime involving Nance, luring him into allowing appellant into the car. Although appellant did not discharge his gun, his display of that gun to force Nance to drive him around "terrified" Nance, who "was fearful for his safety and his life." In the other offense, appellant returned to a residence after being kicked out and actually discharged his gun. This discharge occurred inside a residence where a number of people were present. The court pointed out this circumstance carried with it the possibility of serious injury or death if someone in the confines of the residence has been struck by a bullet. He also noted that a residence is a location where people normally expect to be safe.
There is little discussion by anyone of appellant's prior conviction, beyond the fact that it is for making criminal threats in violation of section 422, did not involve the use of a firearm, and was incurred in 2006.
We find the trial court's characterization of the seriousness of appellant's offenses accurate. A reasonable person could agree with the trial court that the seriousness of those offenses outweighed appellant's decision to take advantage of programs and deal with his substance abuse and anger management issues in jail. Thus, we cannot find that the trial court abused its discretion in denying appellant's request to strike his prior conviction.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
GRIMES, J.