Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge. Super. Ct. No. BF110583A
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellant Alejandro Paniagua Del Rio stabbed Jose Salgado to death and a jury convicted him of second degree murder. He challenges the conviction, claiming his constitutional rights were violated in jury selection and the trial court committed prejudicial instructional error. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On June 4, 2005, Enrique Vasquez was cleaning a residence on East 10th Street in Bakersfield, which he rented in part to Jose Salgado. Salgado and Del Rio were present and Vasquez suspected they were drinking. Vasquez told Salgado he did not want the two drinking on his property.
Salgado and Del Rio then walked to Aidee Montemayor’s house. Del Rio’s mother, Rosaelena Gomez, was visiting Montemayor at the time. Montemayor told both Salgado and Del Rio to leave because she did not want them drinking around her children. The two left the house, but within moments Del Rio came back into the house, grabbed “something” from the kitchen, and ran back outside. Gomez chased after Del Rio as he ran out of the kitchen.
Gomez saw that Del Rio was angry and she asked him what was wrong. Del Rio responded that a man had disrespected him. Gomez noticed that Del Rio had a knife in his hand and chased after him. Montemayor noticed that she was missing a kitchen knife with an approximate six-inch blade. Montemayor then ran outside.
As Del Rio reached Salgado, Del Rio called Salgado a “joto,” meaning “queer” in Spanish. Del Rio motioned back and forth with the knife in his hand and then began fighting with Salgado. Salgado attempted to defend himself while asking “por que,” meaning “for what.” When Gomez caught up to Del Rio, she attempted to restrain him, but Del Rio continued to fight.
Eventually, Del Rio left the area accompanied by his mother. Salgado walked away slowly, hands down, blood coming from his chest.
Bakersfield Police Officer William Wesbrook was dispatched to the scene. When he arrived, the officer found Salgado sitting on the ground, blood covering his shirt and jeans. Wesbrook noticed a puncture wound below Salgado’s left chest area. Medical personnel arrived on the scene and began treating Salgado, but he stopped breathing. Attempts were made to resuscitate Salgado, but he was pronounced dead at 6:16 p.m. The cause of death was a massive hemorrhage due to a single stab wound to the chest.
Del Rio was arrested at his home the evening of June 4. He was charged with first degree murder. (Pen. Code, § 187, subd. (a).) It also was alleged that he used a deadly or dangerous weapon, a knife, during the commission of the offense. (§ 12022, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise noted.
At trial, Del Rio’s girlfriend, Erica Hernandez, testified that Del Rio was drunk the afternoon of June 4 when she left their home around 3:00 p.m. She also testified that he was not in an angry mood at that time. Mehretu Tessema testified that Del Rio attempted to purchase beer at his store that afternoon, but Tessema refused to sell to him.
Investigator Nicholas Morse testified that he interviewed Vasquez on October 11, 2005. Vasquez stated that Salgado had been drinking a lot on the day he was killed and had yelled to Del Rio to “get the fuck out of here.”
Del Rio testified on his own behalf. He testified to an earlier incident where Salgado had been angry with him and lunged at him. Del Rio testified that as he and Salgado walked out of Montemayor’s house, Salgado commented that Gomez “was really good” and he “wanted to fuck her in the ass.” The two exchanged words and Salgado commented, “one of these days I’m going to fuck her.” Del Rio testified this made him very angry and Salgado challenged him to do something about it.
Del Rio testified that Salgado challenged him to a fight. The two exchanged words. Del Rio saw Salgado reach for something in his back pocket and he thought Salgado was reaching for a weapon. Del Rio ran into the house and grabbed a kitchen knife to scare Salgado. When he ran back outside, Salgado continued to threaten him. After they finished insulting each other, Del Rio’s mother pulled him away.
Del Rio denied going after Salgado with a knife and denied stabbing him. He testified that as Salgado walked away, there were no signs that he had been stabbed or injured. Del Rio claimed he did not know how Salgado was stabbed and never saw any blood on the victim.
Psychology Professor Luis Vega testified that the family is the center of Mexican culture, and the mother is the main symbol. Vega testified that when someone says they are going to “fuck your mother,” this is a strong insult and such insults are considered fighting words in Mexican culture.
On November 22, 2005, the jury found Del Rio guilty of second degree murder and found true the allegation that he had used a deadly or dangerous weapon, a knife.
DISCUSSION
Del Rio claims his Fourteenth Amendment right to equal protection and his right to a representative jury were violated when the prosecutor used two peremptory challenges to excuse two Hispanic jurors and no race-neutral explanation was provided. Additionally, Del Rio contends the trial court erred prejudicially when it instructed the jury with CALJIC No. 5.01, over the defense’s objection.
I. Jury Composition
Standard of review
Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race. (Batson v. Kentucky (1986) 476 U.S. 79, 97; People v. Wheeler (1978) 22 Cal.3d 258, 276-277.) The use of peremptory challenges to exclude prospective jurors based upon race violates the constitutional right of a defendant to trial by a jury drawn from a representative cross-section of the community. (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the defendant to show impermissible discrimination. (People v. Bonilla, supra, 41 Cal.4th at p. 341.) There is a three-step procedure that must be applied in analyzing state and federal constitutional claims of impermissible use of peremptory challenges. (Ibid.) First, the defendant must show a prima facie case of use of the peremptory challenge for a discriminatory purpose. Second, if a prima facie case is established, the People must then offer a race-neutral explanation for the use of the peremptory challenge. Third, if a race-neutral explanation is proffered, the trial court must decide if purposeful discrimination is proven. (Ibid.)
Generally, an appellate court reviews a trial court’s denial of a Batson/Wheeler motion deferentially, assessing only whether substantial evidence supports the trial court’s determination. (People v. Bonilla, supra, 41 Cal.4th at p. 341.)
Factual summary
On November 14, 2005, during jury selection, Del Rio made a Batson/Wheeler motion as to the prosecutor’s peremptory challenge to Jurors Nos. 492333 and 421656. Del Rio asserted that the two jurors had been excluded because they were Hispanic. The trial court noted that both jurors had Hispanic surnames and invited the prosecutor to state the rationale for exercising the peremptory challenges.
The prosecutor stated that Juror No. 421656 had appeared sullen and indicated that her job responsibilities and worries about who would perform them while she was on jury duty would be a distraction. Juror No. 492333 also had indicated that he would not be able to pay attention during the trial. The prosecutor stated that he did not want any jurors on the case who had indicated they would be distracted or unable to devote their full attention to the trial.
The trial court noted that Juror No. 492333 had stated that he would need to continue working 12-hour shifts daily if he served on the jury because he could not afford the loss of income. Juror No. 421656 had expressed concern over who would perform her job responsibilities if she served as a juror and that her attitude and attention would be affected by this concern. The trial court concluded that there were race-neutral reasons for the exercise of the peremptory challenges and denied the motion.
On November 15, 2005, Del Rio made another Batson/Wheeler motion on the basis of race regarding the prosecutor’s use of peremptory challenges to excuse Jurors Nos. 684841 and 613744. Del Rio did not indicate any other defect in the use of the peremptory challenge, such as there being no obvious reason to dismiss the jurors.
The trial court noted that both jurors appeared to be Hispanic. The trial court stated that Juror No. 613744 was employed as a substitute teacher who received assignments on a day-to-day basis and who would have to decline all offered assignments for the duration of the trial. Juror No. 613744 also had a brother who had been charged with a serious crime. The trial court also noted that Juror No. 684841 had indicated he did not want to serve as a juror because he worked with troubled youth and was concerned about the impact his absence would have on the youth. The trial court concluded that Del Rio had failed to establish a prima facie case of purposeful discrimination and that there were valid race-neutral reasons for the exercise of the peremptory challenges. Del Rio now argues that the race of the potential jurors alone was sufficient to establish a prima facie case, thus triggering the requirement of a response from the prosecutor. He has provided no authority holding so.
Analysis
The trial court’s ruling that Del Rio had not established a prima facie case of purposeful discrimination was made several months after the United States Supreme Court’s decision in Johnson v. California (2005) 545 U.S. 162. Johnson held that California could not apply a “‘more likely than not’” standard in determining whether a prima facie case has been established. (Id. at p. 168.) Instead, the correct standard to apply in determining whether a defendant has established a prima facie case is whether there is an “‘inference of discriminatory purpose.’” (Id. at p. 169.)
Here, the trial court specifically articulated that it was applying a standard of “inference of purposeful discrimination.” When the trial court has applied the correct legal standard, we apply a substantial evidence standard of review. (People v. Bonilla, supra, 41 Cal.4th at pp. 341-342.)
Peremptory challenges are not challenges for cause. A legitimate reason for exercising a peremptory challenge is often “subtle, visual, and therefore incapable of being transcribed, subjective, and even trivial.” (People v. Walker (1998) 64 Cal.App.4th 1062, 1067.) So long as a peremptory challenge is exercised for reasons other than impermissible group bias, even if that reason is no more than a “hunch,” the peremptory challenge is valid. (People v. Williams (1997) 16 Cal.4th 635, 664.)
A juror’s negative experience with police is a valid and race-neutral basis for exercising a peremptory challenge. (People v. Turner (1994) 8 Cal.4th 137, 171.) Additionally, a prosecutor reasonably may infer that a close relative’s adversarial contact with the criminal justice system might make the prospective juror unsympathetic to the prosecution. (People v. Cummings (1993) 4 Cal.4th 1233, 1282.) Juror No. 613744 had a brother who had been charged with a serious offense, thus permitting a reasonable inference that this juror might be unsympathetic to the prosecution.
Both Jurors Nos. 613744 and 684841 also had expressed concern about serving as jurors because of job-related issues. The trial court found Juror No. 613744 would suffer a financial hardship if required to serve as a juror. Juror No. 684841 indicated concern about the impact on the at-risk children he worked with if he served as a juror. The trial court found he displayed a reluctance to participate in the jury process and that he would have difficulty concentrating on the trial.
The trial court’s findings with respect to Jurors Nos. 613744 and 684841 were based on their answers during voir dire, which Del Rio acknowledges. They were not based on speculation or inferences by the trial court. The findings reflect several obvious race-neutral reasons for the challenges, thus negating any inference that race alone supported the challenges. As the record discloses substantial evidence supporting the trial court’s ruling, we conclude there was no error. (People v. Bonilla, supra, 41 Cal.4th at p. 343.)
II. CALJIC No. 5.01
Del Rio was charged with first degree murder. His theory of the case was that Salgado’s statements were sufficient provocation to negate the element of malice and reduce the killing from murder to manslaughter. He claims the trial court erred when it instructed the jury, over his objection, with CALJIC No. 5.01, excusable homicide—heat of passion. He contends the instruction was misleading and inapplicable, precluded a jury finding of sufficient provocation, and reduced the prosecution’s burden of proof.
Del Rio’s contentions are based primarily on speculation and premised on the assumption that the jurors could not understand and correlate the various instructions. He does not cite to any portion of the record that affirmatively demonstrates the jurors misunderstood the instructions. He does not contend the instructions incorrectly state the law. Jurors routinely are instructed on distinctions in the law and appellate courts presume jurors are able to understand and follow all instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Applying this principle, we address each of Del Rio’s three contentions.
Applicability
CALJIC No. 5.01 provides:
“The unintentional killing of a human being by accident and misfortune is excusable when committed in the heat of passion upon a sudden combat or upon a sudden and sufficient provocation.
“Sufficient provocation is that which would provoke a reasonable person to fight, provided:
“1. The person killing was not the original aggressor;
“2. No undue or unfair advantage was taken of the other by the person killing;
“3. No dangerous or deadly weapon was used by the person who killed during the fight;
“4. The killing was not done in a cruel or unusual manner; and
“5. The act of killing was not the result of gross negligence.”
The trial court has a duty to instruct on all principles of law relevant to the evidence. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) According to Del Rio’s own testimony, the evidence met the threshold requirements of CALJIC No. 5.01.
Del Rio testified that Salgado had provoked the fight and that the provocation made Del Rio very angry. This testimony provided evidence that Salgado was the original aggressor and that the fight was the result of a sudden provocation or quarrel. Del Rio also testified that he thought Salgado had a weapon. In addition, Del Rio testified that while he waived a kitchen knife at Salgado to get him to leave, he never wielded the knife during the fight and never stabbed Salgado. According to Del Rio, Salgado walked away from the fight and did not show any signs of being injured.
The challenged instruction was neither misleading nor inapplicable. According to Del Rio’s testimony, if credited by the jury, CALJIC No. 5.01 was applicable. If the jury had credited Del Rio’s testimony and found the killing of Salgado to be justified or excusable, Del Rio would not be guilty of murder or manslaughter. (§ 199.)
Provocation
Contrary to Del Rio’s contention, instructing the jury with CALJIC No. 5.01 did not preclude the jury from finding provocation sufficient to reduce the killing from murder to manslaughter. CALJIC No. 5.01 precludes a finding of justifiable or excusable homicide if a deadly weapon is used, but manslaughter does not encompass killings that are justifiable or excusable. (§ 192.) Both voluntary and involuntary manslaughter require that the killing be unlawful and the jury was instructed so. The jury received instructions on the definition of manslaughter, voluntary and involuntary, and imperfect self-defense arising from a sudden quarrel or heat of passion.
In addition the trial court instructed the jury with CALJIC No. 5.50, stating that retreat is not a prerequisite to a self-defense claim, and CALJIC No. 5.51, instructing that actual danger is not necessary for a self-defense claim. The jury also received instructions on the effect of voluntary intoxication, accident and misfortune, justifiable homicide in self-defense or defense of others, actual but unreasonable belief in the need for self-defense, and the effect of prior threats by the victim.
In the absence of any evidence to the contrary, and there is none here, we presume the jury was capable of understanding and correctly applying the various instructions to the evidence presented at trial. (People v. Yeoman, supra, 31 Cal.4th at p. 139.) There was no error.
Burden of proof
Del Rio claims that the giving of CALJIC No. 5.01 confused the jury and lessened the burden of the prosecution.
As has been related, the instructions as a whole accurately instructed the jury on all principles of law relevant to the case. The trial court also instructed the jury with CALJIC No. 2.90, setting forth the presumption of innocence and the People’s burden to prove a defendant guilty beyond a reasonable doubt. In addition, we have concluded that the giving of CALJIC No. 5.01 was appropriate.
Nothing in the record indicates that the jury was confused, misunderstood the prosecution’s burden, or applied a lesser burden of proof. Nothing in the record allows such an inference.
Del Rio’s speculative claim fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HARRIS, Acting P.J., LEVY, J.