Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 99F06792
SCOTLAND, P.J.
This is the second appeal from the conviction of defendant Tracy Anthony Johnson. The case returns to us following a remand to the trial court for the limited purpose of conducting a hearing regarding the prosecutor’s peremptory challenge to a prospective juror. (People v. Johnson (Dec. 14, 2006, C042274) [nonpub. opn.] (hereafter Johnson I).) The trial court conducted the hearing as directed, concluded that the prospective juror was excused for race-neutral reasons, and reinstated the judgment. In so doing, it rejected defendant’s claims that the hearing process violated his right to due process of law and he was prejudiced by the passage of time between the 2002 voir dire and the 2007 hearing.
At defendant’s request, we take judicial notice of the record on appeal in Johnson I, supra, C042274.
In this appeal, defendant renews his claim that he is entitled to a new trial because of Wheeler/Batson error (People v. Wheeler (1978) 22 Cal.3d 258 (hereafter Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (hereafter Batson)). We shall affirm the judgment.
BACKGROUND
Johnson I
A jury convicted defendant of second degree murder and corporal injury on a cohabitant, and found that he personally used a dangerous weapon in committing the murder. The trial court sentenced defendant to an aggregate prison term of 63 years to life, after it found that he had a prior conviction for domestic violence, had served two prior prison terms, and had four prior serious or violent felony convictions within the meaning of the “three strikes law.” (Johnson I, supra, C042274, at p. 1.)
On appeal, defendant argued the court erred in denying his Wheeler/Batson motion, claiming the prosecutor impermissibly excluded two African-American men from the jury. (Johnson I, supra, C042274, at p. 8.) When the prosecutor received a peremptory challenge as to juror J.W., defense counsel did not object. However, when prospective juror E.T. was challenged by the prosecutor, defense counsel made a Wheeler/Batson motion as to E.T. and J.W. The court found a prima facie case of discrimination, and asked the prosecutor to give his reasons for challenging E.T. The court did not ask the prosecutor to explain his reasons for challenging J.W. (Johnson I, supra, C042274, at pp. 14-15.)
In denying the Wheeler/Batson motion, the trial court found there was no “pattern” of discrimination, and race-neutral reasons existed to challenge J.W. and E.T. It explained: “[A]s to [J.W.], . . . his responses . . . about his litigation with his employer, . . . his brother’s prior criminal history and the like, and his description of the . . . negative encounter with law enforcement related to a traffic stop, appear on the face to be adequate reasons to dismiss him from jury service. [¶] With respect to [E.T.], I had not noticed that . . . he’s the only one [who] indicated on his questionnaire he did not wish to be here.” Although E.T. “did offer some information on the record conflicting to that,” “in light of [his] written response that he did not wish to be here, that is, he apparently being the only juror to so note in his jury survey, I think that that in itself causes a litigant, the People or otherwise, to be suspect of [his] commitment to serve on a jury.” (Johnson I, supra, C042274, at p. 12.)
According to defendant, the trial court erred because it should have required the prosecutor to state his reasons for his peremptory challenges to both African-American prospective jurors, not just E.T., and by failing to do so, the court impermissibly substituted its own reasons why it thought the challenge to J.W. was justified, without deciding whether those reasons actually and genuinely motivated the prosecutor’s peremptory challenge. (Johnson I, supra, C042274, at p. 13.)
We reviewed the record and concluded “there were very obvious non-race-based reasons for the prosecutor’s peremptory challenge to J.W. On his questionnaire and during voir dire, J.W. revealed that two of his brothers had been prosecuted by the district attorney’s office and had been incarcerated for their crimes--one was convicted of ‘breaking into a car’ and the other was convicted of killing a nephew during an accident while speeding. J.W. himself had an encounter with a police officer--after being stopped while driving his car, J.W. disputed the officer’s statement that there was no current registration tag on the car (the reason for the vehicle stop), whereupon the officer accused J.W. of ‘calling [him] a liar.’ And J.W. appeared to have a negative impression of law enforcement officers because of a friend who was employed as an officer at a correctional facility--J.W. stated: ‘Like sometimes he would be speeding down the road or something and he’ll flash his badge and sometimes get out of a speeding ticket, and I don’t think that was correct.’ In addition, J.W. recounted that he himself was involved in litigation--he was ‘suing [his] employer for unlawful termination.’ The record also reflects J.W. made an error in filling out his jury questionnaire; he marked race as ‘C,’ which apparently stood for Caucasian.” (Johnson I, supra, C042274, at p. 14.)
In addition, we noted, “once the court found the prosecutor did not challenge E.T. due to his race, the only basis for questioning the challenge to J.W. disappeared; in effect, the court found that there no longer was a prima facie showing of discrimination with respect to the challenge to J.W. Hence, to require the court to inquire into the prosecutor’s reasons for challenging J.W. would be elevating form over substance.” (Johnson I, supra, at p. 16.)
Nonetheless, we concluded, “it appears that this is what the law requires” (Johnson I, supra, C042274, at pp. 16-17) and the trial court’s failure to ask the prosecutor to explain his challenge to J.W. constituted Wheeler/Batson error. (Id. at p. 17.) Accordingly, we reversed the judgment and remanded the matter to the trial court “for the limited purpose of (1) requiring the prosecutor to explain his challenge to prospective juror J.W., and (2) then ruling on defendant’s Wheeler/Batson objection to that peremptory challenge.” (Id. at p. 40.) We further directed that “[i]f the trial court finds the challenge to J.W. was for a race-neutral reason, it shall reinstate the judgment. If it finds otherwise, the court shall grant defendant a new trial.” (Id. at pp. 40-41.)
In so doing, we rejected defendant’s assertions on appeal that a limited remand would not cure the error because, with the “passage of so much time since voir dire . . . ‘there is a concern as to whether the vagaries of memory and recall preclude any reasonable possibility that a limited remand can resolve the matter fairly and accurately’”; and that “the prosecutor could simply adopt the court’s justifications as his own, secure in the knowledge that those reasons would pass muster because the court ‘has written a script, as it were, for the prosecutor to follow on remand’” because both concerns could be addressed by the trial court on remand. (Johnson I, supra, C042274, at pp. 17-18.)
Proceedings on remand
At the hearing on remand, the prosecutor explained his reasons for excusing J.W. and the bases for his recollection of them:
“This trial was very memorabl[e] to me.
“It was my first homicide trial. I think that should be note[d] on the record. Even though it’s five years ago, I have a very distinct memory of it.
“I pulled my file on this case back when the appeal was granted, and contained within my file w[ere] my juror notes, including the original form the Court provided, as well as the individual post-its.
“It’s my procedure and practice as jurors are excused, to keep the post-it on the location where that juror was seated, as well as to indicate on my notes which juror was excused in which order.
“I was very easily able to look at these notes and determine Mr. W[.], who is seated in seat seven, as well as looking back at Mr. T[.], who was in seat nine, and recalculate each of the jurors that were dismissed.
“I would note there w[ere] only four jurors dismissed.
“This case was memorabl[e] for me in, not only in regards to being the first homicide that I tried, but also in regards to the number of jurors.
“I have distinct recollections of each of these, not each of them, but many of the jurors.
“I remember L[.]G[.] being on the jury.
“I remember Mr. P[.] for his background in relation to being raised in Germany and fighting in World War Two.
“And I do specifically remember Mr. W[.], because I remember he was the second challenge that I used.
“I note that on my original post-it, indications that he was unemployed, suing his employer for unlawful termination, that he had two brothers incarcerated, one brother took a deal.
“I distinctly recall Mr. W[.] indicating that his brother, one of his brothers that was in prison, involved the death of a nephew and was killed.
“And I remember at the time being very troubled by that, in light of the fact this was a homicide case, as well as the fact of the suing of his employer, his negative police encounters, that he had indicated, I believed he came across as a very, almost bitter individual, is my recollection of him, and someone that I did not want on the jury.
“I remember a lot of the information we got from Mr. W[.] came through his questionnaire, and I think the Court, I noted originally on his questionnaire, indicated he was Caucasian at the top of his questionnaire versus African American.
“This case also is very important to note, I believe the victim in this case was African American. The Defendant was African American also.
“I think it’s also important to note there w[ere] only four jurors, maybe five jurors[,] excused by the People, out of 20 peremptory challenges, and that two African Americans remained on the jury of 12 individuals.
“I excused Mr. W[.] for the reasons that I have just articulated, the fact that he was unemployed, brothers were incarcerated, the fact that he appeared bitter in court, the suing of his employer, as well as negative encounters with law enforcement.
“Each of those individual reasons, as well as all the reasons combined, were my basis for excusing Mr. W[.], and I believe that the challenge was appropriate. I would do it again today.”
In response, defense counsel renewed his argument that fundamental fairness required a new trial because (1) five years since the original voir dire, the prosecution “cannot fairly reconstruct the subjectively genuine reasonably specific race or group neutral reasons which actually genuinely motivated the prosecutor’s peremptory challenge”; and (2) this court’s opinion in Johnson I effectively “g[a]ve a script to the prosecutor” to use in articulating racially neutral reasons for excusing J.W.
The court found that the prosecutor excused potential juror J.W. for race-neutral reasons:
“This Court recalls distinctly the trial of the matter.
“Having read the Court of Appeal’s opinion, which contains this Judge’s quotes on page 12 as to the reasons this Judge felt that J.W. had been adequately or properly dismissed, this Judge now, and has previously recalled specifically, and now with more specificity, the reasons why juror J.W. was excused.
“The Court of Appeal’s opinion notes that this hearing today probably is an elevating [of] form over substance, because when E.T. was excused, and the Court accepted race[-]neutral reasons for E.T.’s excusal, this Court went on to state race[-]neutral reasons for J.W.’s excusal, which are essentially, in many ways, the same reasons offered by the prosecutor, which on their face are race neutral.
“This Judge went out of the way at the time of jury selection, to insure and be satisfied that J.W. had not been excused for racial reasons.
“This Judge was satisfied at the time, offered the comments on the record to explain to the Court of Appeal and to the jury panel and to you, Mr. Johnson, and your lawyer, why I felt there had been no discriminatory intent, or inference of discriminatory intent, and denied the Batson[/]Wheeler motion.
“Having heard the prosecutor’s reasons which were never previously stated on the record, which have now been stated on the record, the Court does find that the excusal of J.W. was for race[-]neutral reasons, that there was no inference of discrimination, no pattern, no discrimination following the excusal of J.W. or E.T. or of both of those jurors in combination.
“And having found and accepted the race[-]neutral explanation by the prosecutor, reinstates the judgment, denies any requests for a new trial, and rejects any claim of denial of due process.
“The Court finds specifically that the passage of time has not inured to the defendant’s prejudice as the record has been well preserved.” (Italics added.)
DISCUSSION
Defendant argues that “under the circumstances of this case, due process requires a new trial for Wheeler/Batson error.”
He does not dispute the accepted remedy for Wheeler/Batson error is a limited remand for a new Wheeler/Batson hearing. (See People v. Johnson (2006) 38 Cal.4th 1096, 1099-1102.) This is true even when more than five years have elapsed since the voir dire challenged on appeal. (Id. at p. 1101 [more than seven years elapsed since voir dire]; see also Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102 [trial held in March 1998; remand ordered in January 2006]; Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 [remand ordered five years after the state appellate court decision and a longer time after trial]; Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073 [remand ordered about seven years after trial].)
Yet, according to defendant, the passage of five years was “undoubtedly an element” in the trial court’s willingness to believe the prosecution’s assertion that he had race-neutral reasons for excusing Juror J.W., because that assertion is consistent with the trial court’s previously stated belief and with this court’s opinion in Johnson I.
He has shown no error. It is not uncommon for a defendant to argue “that the record itself has ‘effectively poisoned the well,’ making a fair [Wheeler/Batson] hearing on remand impossible.” (See People v. Johnson, supra, 38 Cal.4th at p. 1102.) However, as our state Supreme Court has observed, the fact that a trial record may suggest grounds for the prosecutor to have reasonably exercised his peremptory challenges “does not make it impossible for the court on remand to judge the sincerity of any explanation the prosecutor may now make for his challenges and the overall propriety of those challenges” and courts of review assume “the trial court can and will provide defendant a fair hearing on remand.” (Id. at p. 1102.)
A trial court’s ruling on the issue of discriminatory intent must be upheld on appeal unless it is clearly erroneous. (Snyder v. Louisiana (2008) ___ U.S. ___ [170 L.Ed.2d 175].) “The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility, [citation], and ‘the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,’ [citation]. In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie ‘“peculiarly within a trial judge’s province,”’ [citations], and we have stated that ‘in the absence of exceptional circumstances, we would defer to [the trial court].’ [Citation.]” (Snyder v. Louisiana, supra, ___ U.S. at p. ___ [170 L.Ed.2d at p. 181.)
The arguments presented by defendant in this appeal do not convince us that the trial court’s evaluation of the prosecutor’s credibility was clearly erroneous. (Cf. Snyder v. Louisiana, supra, ___ U.S. at ___ [170 L.Ed.2d at 181].) Defendant asserts other jurors allowed to remain on the panel had at least one of the circumstances present for J.W. For example, one juror had a grandson who had been in juvenile hall on a robbery charge; another had been in and out of the court system for an auto theft. Although defendant suggests that those jurors’ family experiences with the justice system are no different from the criminal records of J.W.’s brothers, he is mistaken: the prosecutor told the trial court he was particularly concerned because one of J.W.’s brothers had been involved in a homicide case--a case involving the very charge at issue here. None of the jurors remaining on the panel had family members convicted in a homicide case.
Similarly, defendant suggests the trial court should have disbelieved the prosecutor’s stated reasons for excusing Juror J.W. because another juror’s wife had experienced a dispute with her employer, but had resolved it prior to initiating litigation. This fact does nothing to undermine the prosecutor’s explanation that he considered J.W.’s own litigation with his employer to be a factor against keeping him on the jury. Nor does it undermine the prosecutor’s assertion that he weighed J.W.’s employment litigation together with the other negative considerations, such as his brothers’ incarceration, had what he perceived to be negative encounters with law enforcement, and appeared to be a “bitter” individual.
Defendant has provided no justification for us to reject the trial court’s conclusion that the reasons given by the prosecutor for challenging J.W. truly motivated his decision and were not sham excuses designed to hide discriminatory motives. Thus, defendant has not shown that the Wheeler/Batson hearing conducted on remand deprived him of due process or that a new trial was otherwise required.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., HULL, J.