Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF096585, Paul E. Zellerbach, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
After we reversed defendant’s second degree murder conviction based on error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson), and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), the Supreme Court granted review and transferred the matter back to this court with directions to reconsider the Batson/Wheeler issue in light of People v. Avila (2006) 38 Cal.4th 491, and People v. Johnson (2006) 38 Cal.4th 1096. In accordance with People v. Johnson, we conditionally reversed the judgment and remanded the matter to the trial court to conduct a hearing at which the prosecutor would be afforded an opportunity to provide a race-neutral explanation for his use of a peremptory challenge to excuse a prospective African-American juror identified as Mr. T. The trial court conducted that hearing, and based on the prosecutor’s statements at that hearing, found that the prosecutor had provided a race-neutral explanation for his use of the peremptory challenge and as a result the trial court found that defendant had failed to establish purposeful discrimination. Consequently, the trial court denied defendant’s so-called Wheeler motion and, in accordance with the directions set out in our disposition, reinstated the judgment.
See People v. Ibarra (Oct. 5, 2006, E031542) (nonpub. opn.).
In this appeal from the reinstated judgment, defendant purports to challenge the limited remand procedure the Supreme Court created in People v. Johnson, and also challenges the trial court’s finding on remand that the prosecutor provided a race-neutral reason for his peremptory challenge of Mr. T. We conclude that defendant’s claims are meritless and therefore we will affirm.
DISCUSSION
Defendant first challenges the limited remand procedure utilized in this case, although he concedes in his reply brief that the procedure was created by the Supreme Court in People v. Johnson, supra, and that this court is bound by that decision under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450. In other words, defendant concedes that this court is bound by People v. Johnson. In making that concession, defendant acknowledges that he raised the challenge in order to preserve it for possible review by the United States Supreme Court. Instead of challenging the procedure, defendant asks this court to reverse the trial court’s finding that the prosecutor presented genuine race-neutral reasons for his exercise of the peremptory challenge in question. We must decline that request, for reasons we now explain.
“The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 924.) “All 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.]’ [Citation.]” (Ibid.) “The question for the trial court was this: [W]as the reason given for the peremptory challenge a ‘legitimate reason,’ legitimate in the sense that it would not deny defendant[] equal protection of law [citation], or was it a disingenuous reason for a peremptory challenge that was in actuality exercised solely on grounds of group bias?” (Id. at p. 925.) Our function as the reviewing court is to determine whether the trial court’s finding “is supported by the record when considered under the applicable deferential standard of review.” (Id. at p. 924.)
The pertinent details of the hearing on remand are set out at great length in defendant’s opening brief. At that hearing, the prosecutor stated in pertinent part that he had a clear memory of the trial because it was his first murder case, and his 20th felony jury trial. The crime was memorable because it involved defendant using an ax to kill his wife. The prosecutor also remembered the trial because the defense attorney was “fierce” and intimidating, and in a sidebar conference the trial court had called the prosecutor incompetent because he was not prepared to address certain issues, and the jury selection process took three days to complete. The prosecutor not only had an independent recollection of the case, he also had reviewed the reporter’s transcript of jury selection and his own case file which included detailed notes, on Post-its, about each of the prospective jurors. The prosecutor offered a copy of his notes on Mr. T., the juror in question, to the trial court and defense counsel.
The prosecutor then explained that he excused Mr. T. for the following reasons: he looked extremely unhappy during jury selection; when the trial court was talking about the law with other prospective jurors, the prosecutor noticed that Mr. T. was making funny faces, he was “grimacing,” which suggested to the prosecutor that Mr. T. did not want to be there; and Mr. T. was single and did not have children. Because the case involved infidelity and children, the prosecutor wanted jurors who were married or who had been married and who had children. In the prosecutor’s view, “jurors who were married or had been married would be the best suited to understand the kind of frustration that [defendant] felt yet would also know how to resolve a conflict in a constructive manner, as opposed to the way [defendant] did.” Mr. T. also looked to be in his late 40’s, and although “it’s certainly not a crime to be in one’s late 40s [sic] and to be single and without kids,” Mr. T., was “definitely not a juror [the prosecutor] was looking for on this case.”
The prosecutor then explained, that although he had kept jurors who were single and had no kids, they had other favorable characteristics, like ties with law enforcement. Mr. T. did not have ties with law enforcement and neither he nor any of his family members had been crime victims. Mr. T. also made a comment that suggested he would hold it against the victim, and thus the prosecutor, if the evidence showed the victim had been unfaithful during her marriage to defendant. In particular, the prosecutor recalled that he asked Mr. T. whether he had anything in his background or experience that would make him biased against the victim and sympathetic toward defendant if it turned out that the victim had been an “adulterer.” Mr. T.’s response was, “That’s something else.” Although Mr. T. tried to clarify his equivocal answer, the prosecutor stated that he felt that Mr. T. was just trying to tell the prosecutor what he thought the prosecutor wanted to hear. At that point, the prosecutor believed that either he and Mr. T. were not communicating well, or Mr. T. “would hold it against the prosecution if the victim was an adulterer. But either way, [the prosecutor] did not want him on [the] jury.” The prosecutor stated that he felt the two other prospective jurors “waiting in the wings to be picked” were superior to Mr. T. “based on their life experiences.”
In support of his Wheeler motion, defense counsel offered arguments to counter the prosecutor’s statement of reasons for excusing Mr. T. In doing so, defense counsel did not refute the prosecutor’s observations of Mr. T., other than to point out that the record did not indicate that Mr. T. was making funny faces and grimacing and therefore the prosecutor’s observations could not be independently corroborated. Instead, defense counsel cited other facts about Mr. T. that would make him a good juror. The focus of defense counsel’s argument was to attack the prosecutor’s credibility.
At the conclusion of the hearing, the trial court asked the prosecutor to submit his original Post-it note about Mr. T., and accepted the prosecutor’s offer to submit all the original Post-its regarding each prospective juror. In order to review the record of jury selection and to also review a supplemental brief submitted by defendant, the trial court continued the hearing for a month. On the date of that continued hearing, both the prosecution and the defense argued their respective positions, arguments that included the defense attorney’s assertion that the prosecutor had lied during opening statement when he told the jury that the evidence would show that the victim had several affairs during the course her marriage to the defendant, when no evidence of those affairs was presented at trial. As a result of that lie, and the prosecutor’s assertion during jury selection that he did not think Mr. T. was African-American, defense counsel argued that the prosecutor was not credible and therefore the trial court should not believe the prosecutor’s reasons for excusing Mr. T.
The trial court expressed concern that at the very least the prosecutor had been ill-prepared during trial and at worst had been disingenuous; the latter “most vividly expressed itself or became apparent when [the prosecutor] said on the record that Mr. T wasn’t an African-American.” In the trial court’s view, although Mr. T. “was light-skinned . . . it was clear . . . and [the trial court] said so on the record at the time . . . that he was black. He was an African-American.” The trial court also stated that the court “did not see this juror grimacing or making faces or being untoward at any point in time during the jury selection process. But . . . that has nothing to do with the passage of time. . . . Doesn’t mean it didn’t happen. It means [the trial court] didn’t see it.”
Noting that the trial court’s responsibility was to make a sincere and reasoned effort to determine whether the prosecutor’s justifications for excusing Mr. T. were subjectively genuine, the trial court “summarized [the prosecutor’s] justifications . . . into five separate categories. The first being his belief or representation to the Court that Mr. T looked extremely unhappy during the jury selection. He was grimacing and making funny faces when the Court was conducting its voir dire of the prospective jurors, which, as [the prosecutor] characterized, was, to use his term, a ‘turnoff’ to him. [¶] The second justification was that it appeared to [the prosecutor] that Mr. T just didn’t want to be here. He didn’t really give any specific reasons for that other than presumably the unhappy faces and the grimacing . . . . [¶] The third area of justification that was expressed by [the prosecutor] was that Mr. T was single, had never been married, and had no children. . . . [¶] . . . [¶] The fourth reason or justification expressed by [the prosecutor] was the questions that he asked of Mr. T regarding the victim in this case possibly being an adulterer. And specifically Mr. T’s response—or initial response, quote, ‘That’s something else,’ unquote. And then through further questioning, Mr. T did further clarify what he meant by that statement or further explained himself through further questioning by [the prosecutor]. [¶] And [the prosecutor] indicated that, based upon that initial response by Mr. T, he felt that Mr. T would possibly hold it against the prosecution or the victim if it came out during the course of the trial that she had been an adulterer or had been having an affair with another man at the time of the killing. [¶] And then the fifth and final justification or reason expressed to the Court by [the prosecutor] was that he felt that . . . two of the other upcoming prospective jurors would be better jurors, at least from the prosecution’s standpoint, than Mr. T.”
The trial court then expressed the view that the prosecutor’s justifications were corroborated by his notations on the Post-it note regarding Mr. T. which included the notation that Mr. T. “‘Looks very unhappy,’” and “‘Funny Face during judge’s questions.’” The trial court found the Post-it note to be genuine and rejected defense counsel’s assertion that it had been fabricated, or at least altered. In conclusion, the trial court found that the prosecutor’s justifications for excusing Mr. T. were genuine and not discriminatory. Therefore, the trial court denied defendant’s Batson/Wheeler motion and reinstated the judgment of conviction.
The above quoted facts and the trial court’s related explanation are more than sufficient to support the trial court’s finding that the prosecutor exercised his peremptory challenge of Mr. T. in a nondiscriminatory manner and that defendant therefore had not “‘prov[ed] purposeful racial discrimination.’” (People v. Stanley (2006) 39 Cal.4th 913, 936.) In reaching this conclusion, we reject defendant’s assertion that the trial court’s finding is incorrect because the prosecutor was not credible. “‘[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although the record includes facts that would have supported a contrary finding by the trial court, those facts did not compel such a result. The trial court, as set out above, cited the facts in question and found that the prosecutor was at worst disingenuous. Because the evidence does not compel a finding that as a matter of law the prosecutor was not credible, we are bound by the trial court’s resolution of the issue.
We also must reject defendant’s claim that the hearing on remand was unfair and resulted in a denial of his constitutional rights to counsel and due process of law because the passage of time made it impossible for defense counsel to recall what had occurred during jury selection in defendant’s trial. Defendant’s assertion is not supported by the record. Defense counsel did not claim at any time during the proceedings on remand that he could not remember what had occurred during jury selection. In fact, the record reflects just the opposite—defense counsel remembered specifics about Mr. T. and other prospective jurors which defense counsel cited to support his argument that the prosecutor’s reasons for excusing Mr. T. were fabricated and that he had in fact excused the juror because he was African-American. Defense counsel did not claim a failure of recollection even with respect to the prosecutor’s claim that Mr. T. was grimacing during jury selection. Instead, defense counsel argued that the prosecutor’s claim could not be independently corroborated because neither he nor the trial court saw Mr. T. grimace. In short, defendant’s claim is irrelevant because in this case the record reflects that defense counsel did recall the jury selection process and therefore could effectively argue that the prosecutor’s reasons for excusing Mr. T. were not genuine.
For each of the reasons stated, we must reject defendant’s claims in this appeal.
DISPOSITION
The judgment is affirmed.
We concur: Gaut, J., King, J.